P. v. Schoby
Filed 4/13/06 P. v. Schoby CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
| THE PEOPLE, Plaintiff and Respondent, v. WILLIE SCHOBY, JR., Defendant and Appellant. |
A107821/A108061
(San Mateo County Super. Ct. No. SC050759A/ SC048970A) |
Defendant was found guilty by jury of false imprisonment, assault and two counts of rape (A107821).[1] The jury also found true the allegation under Penal Code[2] section 667.61, subdivision (e)(4)[3] that defendant had used a dangerous or deadly weapon in the course of one of the rapes, though the jury found not true the similar allegation under section 12022.3, subdivision (a)[4] as to the same count. Subsequently, the court found defendant's prior robbery conviction to be a strike under section 1170.12, subdivision (c)(1) and a serious felony under section 667, subdivision (a). In addition, the court found defendant ineligible for probation under section 1203, subdivision (e)(4) based
upon a variety of other felony convictions. Finally, the court found true the allegation under section 12022.1 that defendant committed the new offenses while released from custody on another felony matter.[5]
In A107821, defendant was sentenced to a determinate term of 19 years in prison, followed by an indeterminate term of 30 years to life. In A108061, he was sentenced to a consecutive 32 months in prison.
In A107821, defendant contends that the court did not properly instruct on the section 667.61, subdivision (e)(4) use finding, that the findings as to sections 667.61, subdivision (e)(4) and 12022.3, subdivision (a) were fatally inconsistent, and that he was deprived of a jury trial as to the section 12022.1 enhancement. He raises no error as to A108061. We affirm.
FACTS
The victim, Pamela, testified she was raped twice by defendant at his home. Following the first rape, Pamela attempted to leave but was prevented. Defendant produced a bat, used it to hit her on the leg, and ordered her to get back on the bed. Defendant then produced a tire iron and attempted to strike her leg with it. Pamela returned to the bed, where defendant raped her a second time. Later in the evening, defendant struck her with a belt on her back. Prior to the rapes, defendant and Pamela had both been drinking. According to Pamela, defendant also smoked crack cocaine. Pamela did not share in the cocaine, though she had smoked some earlier.
Pamela told the nurse she saw later that day that she had been struck with a belt, a crowbar and a bat. The nurse observed swelling, redness and abrasions on Pamela's back and slight swelling on her left calf. Police recovered two bats from defendant's home.
As to the second rape (count 3), the court employed CALJIC 17.19.1 jointly for the allegations of weapons use under sections 667.61, subdivision (e)(4) and 12022.3, subdivision (a). The jury convicted defendant of count 3. In a separate verdict form, the jury found â€
