P. v. Presley

Filed 2/23/06 P. v. Presley CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

Bob S. Bowers, Jr., Judge. Affirmed.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.

Appellant Willie John Presley was convicted by jury of three counts each of forcible rape (Pen. Code, § 261, subd. (a)(2))^[1], forcible sodomy (§ 286, subd. (c)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), and one count of forcible sexual penetration (§ 289, subd. (a)(1)). The jury also found that appellant personally used a firearm in committing each offense (§§ 667.61, subd. (e)(4), 12022.53, subd. (b)), and, with respect to all but the penetration count, found that appellant had committed offenses against more than one victim (§ 667.61, subd. (e)(5)). Upon waiver of jury, the court found that appellant had suffered two prior serious felony and strike convictions, including one for forcible rape (§§ 667, 667.6, subd. (a)).^[2] Under sections 667.61 and 667, subdivisions (b)-(i), the one-strike and three strikes laws, appellant was sentenced to three consecutive terms of 75 years to life and seven consecutive terms of 25 years to life, with ten 10-year firearm enhancements and two five-year serious felony enhancements, for a total term of 110 years plus life with a minimum of 400 years.

On appeal, appellant raises contentions about admission and exclusion of evidence, prosecutorial misconduct, giving and withholding of jury instructions, propriety of the firearms use enhancements, application of 654 to the sexual penetration count, and right to a jury trial before imposition of consecutive sentences. We find most of these contentions to be without merit, and we conclude that the few that are well taken do not, separately or together, warrant reversal. We accordingly affirm the judgment.

FACTS

The charges and evidence against appellant involved sexual assaults and offenses against three victims. Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed that about midnight on July 7, 2002, M.S., age 20, began walking from a motel near Jefferson Boulevard and Normandie Avenue to her mother-in law's home nearby. After she crossed the street, appellant grabbed her around the waist, covered her eyes with his other hand, and dragged her to a white, four-door hatchback automobile. After forcing M.S. into the passenger's seat, appellant removed his hand, allowing her to see him – and to identify him at trial. Appellant took a handgun from a shirt that hung in the car, and told M.S. he would knock her teeth out with the gun if she didn't do what he said.

Appellant drove for about 20 minutes, stopping in a residential area. He told M.S. to get in the backseat and undress. She moved to the back and, wearing no underwear, took off her pants. Appellant unzipped his, and, pointing the gun at M.S., ordered her to put his penis in her mouth. He then grabbed her by the hair and forced his penis into her mouth. Appellant then got on top of and penetrated the victim vaginally, ejaculating. He next sodomized her, using lotion after she protested it hurt. Throughout, appellant dismissed M.S.'s calls to stop. Asthmatic, M.S. lost her breath. When she regained it, appellant, who had lost his erection, had her perform oral sex again. He then raped her once more. Appellant also lifted M.S.'s shirt and licked her breasts.

Appellant told M.S. to dress and get into the front seat. As she stepped out and toward the open front door, he rapidly drove away. M.S. reported what had happened to a homeowner, who let her call 911. She underwent a medical examination, and experienced pain for two weeks.^[3] Reiterating her identification of appellant with certainty, M.S. stated he had worn a baseball cap during the sex acts, and had sweated to an unusual extent. Along the way he had asked why she was out so late, and she replied she was going to see her mother.

On cross-examination, M.S. stated she had consumed no drugs that night, and appellant had not offered to sell them to her, for sex or otherwise. Nor did he speak of paying for sex with her. M.S. stated she had never noticed that appellant's penis was pierced with a ring. The court sustained a relevance objection to the purpose for which M.S. had rented the motel room for that night. On redirect, M.S. affirmed that she had not willingly performed any of the sex acts.

The second victim was P.S. Her brother first testified that at 2:30 a.m. on July 16, 2002, she had phoned him and asked for a ride home. He had not responded. At about 4:30 a.m., she had called again, hysterical, saying she had been raped. When he picked her up, she was crying and bore scratches and bruises on her face.

P.S. herself testified that at 4:00 a.m on July 16, 2002, she was waiting for a bus at the corner of Adams and La Brea. Appellant drove up, in a white compact car, and asked if she wanted a ride. She declined. He circled the block twice, then asked if she was sure. She accepted the ride.

Appellant drove about a block, to a darker area. He stopped and told P.S. to remove her clothes. When she responded, â€