P. v. Shepherd

Filed 5/19/06 P. v. Shepherd CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Richard Jason Shepherd was convicted of burglary, forcible rape, attempted forcible rape, making criminal threats, and assault with a deadly weapon, all in connection with two sexual assaults committed in June 2003. Defendant challenges only his conviction on one count of burglary.

First, defendant argues the trial court erred by admitting into evidence a ski mask found in defendant's home after his arrest, and a stun gun found in his truck at the time he was arrested. Defendant contends that because these items were not used during the two attacks, they were not relevant to the case and should have been excluded. Alternatively, defendant argues that the probative value of this evidence was outweighed by its prejudicial effect. We disagree in both respects. The ski mask and the stun gun were relevant to the case because they were tools with which defendant could commit crimes. The stun gun was also relevant because two witnesses had testified defendant indicated by gesture or speech that he possessed a gun while fleeing the scene of the second attack. We also disagree with defendant's contention that the evidence was unduly prejudicial because it was inflammatory, especially when compared with the evidence relating to the totality of defendant's crimes, all but one of which he conceded he should be found guilty. Even if the ski mask and the stun gun were improperly admitted, it is not reasonably probable the jury would have returned a more favorable verdict to defendant in the absence of that evidence.

Second, defendant argues the trial court should have instructed the jury on how to evaluate evidence of defendant's mental disease. The problem with this argument is that there was no evidence that defendant suffered from a mental disease at the time of the two attacks. The only evidence was the testimony of defendant's former psychiatrist, who had not treated or even seen defendant for at least one year before the attacks occurred.

Third, defendant argues the trial court erred by failing to instruct the jury on how to evaluate conflicting evidence. There was no conflicting evidence in this case, however, and the trial court therefore had no sua sponte duty to so instruct the jury.

Finally, defendant argues the trial court erred by instructing the jury that defendant could be found guilty of burglary if, after entering a victim's apartment with an innocent intent, he formed the specific intent to commit a felony before entering a separate room within the apartment and committing that felony. The California Supreme Court held in People v. Sparks (2002) 28 Cal.4th 71 that, given the language of Penal Code section 459, a defendant who enters a dwelling with an innocent purpose, forms a felonious intent once inside, and then enters a separate room in the dwelling to commit the felony is guilty of burglary. That case is controlling here.

We therefore affirm the judgment.

Statement of Facts

June 10, 2003 – Attack on Maria M.

On June 10, 2003, about 1:00 p.m., defendant knocked on Maria M.'s apartment door and asked for the apartment manager. Defendant was wearing a badge and held a radio in his hand. When Maria replied the manager was not there, defendant asked for the manager's phone number and to use Maria's phone. Maria unlocked her screen door, and defendant walked into her apartment. Defendant asked for a glass of water while pretending to dial the phone. Defendant asked for a second glass of water. As Maria was refilling the glass, defendant grabbed her around the waist and pressed a knife to her neck with his other hand. Defendant told her to walk inside the apartment if she didn't want anything to happen to her two-year-old daughter, who was in the apartment.

Defendant forced Maria into a bedroom at knifepoint and ordered her to undress. When she refused, defendant pulled down her pants and pushed her onto the bed. Defendant covered Maria's face with a pillow and raped her. When she asked him to stop, he told her to be quiet and continued threatening her daughter.

Defendant then ordered Maria to go to the bathroom and told her to wash herself, while pointing a knife at Maria's daughter. Defendant then took Maria's cordless telephone and fled.

Defendant's DNA was found on Maria, and his fingerprint was recovered from the glass he used. Maria later identified defendant at a lineup.

June 19, 2003 – Attack on Sandra P.

On June 19, 2003, about 12:20 p.m., defendant attacked Sandra P. as she was returning to her apartment after taking out her trash. Defendant was wearing black gloves and a black jacket. Inside Sandra's apartment, defendant picked up her three-month-old daughter, pulled out a knife, and threatened to stab the baby if Sandra screamed. While carrying the baby, defendant forced Sandra to go to her bedroom where he closed the door and ordered her to undress. Sandra complied only after defendant again threatened to stab the baby. Defendant then set down the baby and attempted to rape Sandra.

Sandra's toddler son opened the door to the bedroom. Defendant told the boy to close the door. Ultimately, defendant picked up the baby, walked across the room and closed the door, while continuing to hold the knife. When he returned to the bed, Sandra resisted him by closing her legs. Defendant began strangling Sandra. Sandra's son again opened the door to the bedroom, causing defendant to go to the door again. Sandra took that opportunity to try to hit defendant with a clock, and began screaming. Defendant took Sandra's phone and fled from the apartment, as Sandra screamed and chased him. Outside, Sandra screamed for help.

Witnesses tried to stop defendant, but he got into his pickup truck and sped away. One witness testified that defendant represented he was a police officer, stated he was not the rapist, and made a gesture with his hand toward his right hip, possibly indicating he had a gun. While fleeing in his truck, defendant hit a minivan. Defendant drove away, but the driver of the minivan followed him to the parking lot of the local mall. The minivan driver testified defendant threatened her and her passenger with what defendant said was a gun.

When defendant pulled his truck into the mall parking lot, he hit another car. Defendant then parked, and fled into a Sears store at the mall. He left his black gloves inside the store, where they were later recovered. The police found Sandra's telephone, a pair of binoculars, and a stun gun in or on defendant's truck. During a search of defendant's home after his arrest, a police investigator found a black ski mask in the clothes hamper and two pairs of black gloves.

At trial, Sandra identified defendant as the man who tried to rape her and threatened her children.

Proceedings in the Trial Court

Defendant was charged with two counts of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)) (counts 1 and 5); one count of making criminal threats (id., § 422) (count 2); four counts of assault with a deadly weapon (id., § 245, subd. (a)(1)) (counts 3, 6, 7, and 8); one count of forcible rape (id., § 261, subd. (a)(2)) (count 4); and one count of attempted forcible rape (id., §§ 261, subd. (a)(2), 664) (count 9). The amended information also alleged that defendant personally used a dangerous and deadly weapon in committing the crimes named in counts 1, 2, 4, 5, and 9. (Id., § 12022, subd. (b)(1).) As to count 4, the amended information alleged defendant used a deadly weapon during the commission of a sex offense (id., § 12022.3, subd (a)) and committed the crime during the commission of a burglary (id., § 667.61, subds. (a), (c)(1) & (d)(4)). During closing argument, defendant conceded all counts against him had been proven beyond a reasonable doubt, except the burglary of Maria's apartment. Defendant was convicted on all counts, and the jury found all the enhancements to be true. The court sentenced defendant to state prison for 45 years to life.[1] Defendant appealed.

Discussion

I.

Did the trial court err by admitting into evidence
the ski mask and the stun gun?

Defendant argues the trial court erred by admitting into evidence the ski mask found at his home and the stun gun found on the hood of his truck in the mall parking lot. Defendant contends that because neither a ski mask nor a stun gun was used in either the attack on Maria or the attack on Sandra, those items of evidence were not relevant, or their probative value was outweighed by their prejudicial effect. A trial court's determination of the relevancy of evidence and its ruling on the admissibility of evidence are reviewed for an abuse of discretion. (People v. Heard (2003) 31 Cal.4th 946, 972-973.) We conclude the trial court did not abuse its discretion in admitting the ski mask and the stun gun.

Two witnesses who observed defendant fleeing Sandra's apartment testified defendant indicated either through words or gestures that he had a gun. The stun gun was then found on the hood of defendant's truck in the mall parking lot. Although defendant did not use the stun gun while raping Maria and Sandra, there was sufficient evidence to connect defendant with the stun gun so as to justify its admission at trial.

There was admittedly a less direct connection between the ski mask and the attacks on Maria and Sandra, as neither testified her attacker wore a ski mask. (In fact, both were able to identify defendant as the attacker because he did not wear any type of mask.) The prosecutor argued, however, that the ski mask was one of defendant's â€