P. v. Davis
Filed 4/7/10 P. v. Davis CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DAVIS, Defendant and Appellant. | C060495 (Super. Ct. No. 07F11736) |
Based on testimony that defendant Steven C. Davis grabbed a woman off her skateboard at night, dragged her into an alley, and then robbed and sexually assaulted her, a jury found him guilty of kidnapping for purpose of rape, forcible oral copulation, two counts of forcible sodomy, forcible rape, robbery, and a kidnapping for purpose of rape enhancement. The trial court sentenced defendant to prison for 100 years to life. Defendant timely appealed.
On appeal, defendant contends the evidence supports only one sodomy conviction and the trial court improperly sentenced him to four consecutive 25-years-to-life terms. Disagreeing, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 26 through January 27, 2007, near midnight, the victim left her apartment to get money from her bank. As she rode her skateboard home, just out of nowhere just some hands were around [her] mouth and she was pulled off of her skateboard. She bit a finger that was in her mouth and then her assailant just clocked [her] really hard with the other hand. Her assailant put something around her neck, choked her, told her to shut up, and hit her in the side.
The attacker dragged the victim into a nearby alley. She offered him money but hes like . . . no maam, that wasnt the point. He forced her to undress and take his penis in her mouth. He pushed her down, sodomized her, took out her tampon, and raped her. Eventually, she was able to run home.
Retired police detective Pete Willover works on cold cases. After he learned of a preliminary DNA match in this case, he obtained a saliva sample from defendant that was submitted for additional testing, resulting in a confirmed match.
DISCUSSION
I
There Was Substantial Evidence
To Support Two Sodomy Convictions
Defendant was originally charged with three counts of sodomy. The jury convicted him of two counts and deadlocked on a third count, which was dismissed. On appeal, defendant contends one sodomy conviction must be reversed because the victims testimony does not show two acts of sodomy were committed. We disagree.
We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
After testifying the sodomy really hurt and hurt a lot, the prosecutor and victim had the following exchange:
Q. And can you give us an estimate of as he was doing the sodomy aspect of this attack, how many times did he take his penis out and then put it back in, just a -- just a broad estimate?
A. Just -- yeah, I think he was just kind of trying to do it and then started to do it, and then maybe tried to do it again, and just like it was hurting because, you know --
Q. Right. Can you say that it was just one time, maybe two times, three times, at least two or three?
A. I would say a couple -- few times.
Q. A couple? A few times?
A. Uh-huh.
Q. And nobody expects you to remember, you know, everything exactly.
A. I just remember like being the resistance, like pulling away, you know, like --
In addition to this testimony, the nurse practitioner who examined the victim after she was attacked testified she had multiple tears in the entry to the rectum.
Taken together, this evidence was sufficient to show the victim was sodomized at least two times. She testified it was more than once, i.e., a couple -- few times, and her physical injuries are consistent with more than one tear into the entry of the rectum.
II
The Trial Court Properly Imposed Full
Term Consecutive Sentences
Defendant contends the trial court improperly imposed full-term consecutive sentences pursuant to Penal Code section 667.6, subdivision (d), because the sex offenses were not committed on separate occasions, and the trial court did not provide an adequate statement of reasons. We disagree.
Defendant was convicted of four forcible sexual offenses: oral copulation, sodomy (two counts), and rape. Because the jury found true the kidnapping allegation, defendant was subject to a term of 25 years to life for each of these offenses. (Pen. Code, 667.61, subds. (a), (d)(2) & (e)(1).) The trial court had to choose a principal term, and then determine whether the subordinate terms should run consecutively, and, if so, whether the subordinate consecutive terms were subject to the normal one-third midterm limitation (Pen. Code, 1170.1, subd. (a)), or should or must be imposed fully consecutively. (See Cal. Judges Benchbook: The Adjudication of Sex Crimes (CJER 2006) Sentencing, 14.49, p. 297.)
After describing the brutal nature of the attack and the defendants prior convictions and poor performance while on probation, the trial court stated that defendant is deserving of the full sentence, the maximum sentence that can lawfully be imposed. The trial court imposed a term of 25 years to life for each of the four sex offenses. The trial court then stated:
Probation further addressed the sentencing scheme for the Court to consider with respect to the imposition of these indeterminate terms under [Penal Code section] 667.6(d) which relates to sentencing under the mandatory consecutive based on the factual scenario set forth in this case which involves multiple crimes committed against a single victim, but separated clearly by an opportunity on the defendants part to reflect between each, making them each distinct crimes warranting them punishable as consecutive terms. So each of the terms imposed by the Court will be ordered to run consecutive.
The trial court imposed and stayed a life sentence for count one (aggravated kidnap) and imposed a concurrent sentence for count seven (robbery), leading to an aggregate unstayed sentence of 100 years to life on this case, which was ordered to be served consecutively to a life sentence in another case.[1]
Penal Code section 667.6, subdivision (d) provides that full term consecutive sentences must be imposed for specific sex crimes if the crimes involve separate victims or involve the same victim on separate occasions. [] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.
The burden of proof for finding that sex crimes occurred on separate occasions is by a preponderance of the evidence. (People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231; Cal Judges Benchbook, supra, 14.53, at p. 298.) As we stated in a similar case, Once a trial judge has found under [Penal Code] section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior. [Citations.] (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
The trial court found that based on the probation report, this case involves multiple crimes committed against a single victim, but separated clearly by an opportunity on the defendants part to reflect between each, and therefore imposed fully consecutive sentences.
The probation report, to which there was no objection, contains more details about the offenses than were revealed at trial. Because defendant did not object to the facts stated in the probation report, the trial court was entitled to accept them as true for purposes of sentencing. (People v. Bartell (2009) 170 Cal.App.4th 1258, 1262; see People v. Welch (1993) 5 Cal.4th 228, 234-235.)
The probation report states in part: The subject told the victim to take off all her clothes. At that point, the subject forced the victim to orally copulate him by sticking his penis in her mouth (Count 2). The subject pulled the victim up and attempted to make the victim kiss him. He then forced her back on the ground onto her hands and knees. The subject forced his penis into the victims anus (Count 3). The victim was in pain and screamed loudly. The subject punched her in the stomach and said, Shut up! He forced her to get down on her elbows and repeatedly sodomized her (Counts 4 and 5). [] The subject pulled a tampon out of the victims vagina then placed his penis inside her vagina from behind (Count 6).
This factual summary amply shows that defendant had a reasonable opportunity to reflect in between sex acts. After the forcible oral copulation, defendant pulled the victim up and tried to kiss her, then forced her down onto her hands and knees and sodomized her. This shows a significant break between oral copulation and the first act of sodomy. After the first act of sodomy, the victim screamed loudly, and defendant punched her in the stomach and said, Shut up! He forced her to get down on her elbows and sodomized her again. His act of punching her and then trying to silence her shows another significant break. Finally, after the second act of sodomy, defendant pulled a tampon out of the victims vagina and raped her. This shows yet another significant break between sex acts -- this time, between the sodomy and the rape.[2]
Accordingly, defendant has failed to demonstrate that the trial courts finding was in error. (See People v. Garza, supra, 107 Cal.App.4th at p. 1092.)
We also reject defendants claim that the trial courts statement of reasons was inadequate because it does not show why the trial court concluded defendant had a reasonable opportunity to reflect between the various sex offenses. The trial court found the sex crimes were separated clearly by an opportunity on the defendants part to reflect between each crime. That adequately explained the trial courts reasons, and the trial courts statement of reasons, in part incorporating the probation report, shows a break between each sex act. This was adequate.
DISPOSITION
The judgment is affirmed.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
BUTZ , J.
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[1] The recent amendments to Penal Code section 4019 do not entitle defendant to time credits other than which he received, because he was convicted in this case of several serious felonies. (Pen. Code, 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, 50.) Each of his convictions for kidnapping, forcible oral copulation, forcible sodomy, rape, and robbery qualifies as a serious felony. (Pen. Code, 1192.7, subd. (c)(3), (4), (5), (19) & (20).)
[2] The victims trial testimony, although less detailed, was consistent: She testified that she orally copulated defendant while she was on her knees or squatting, defendant pulled her up, then pushed her back down to sodomize her, pulled out her tampon and raped her, all while ignoring her pleas and screams.
