P. v. Stubblefield























Filed 3/24/17 P. v. Stubblefield CA4/2





NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

ANTAWON STUBBLEFIELD,

Defendant and Appellant.



E066003

(Super.Ct.No. FSB1600003)

OPINION


APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. Dismissed.
Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Antawon Stubblefield was arrested after raping and sexually assaulting a 67-year-old woman in her apartment after climbing in through the bedroom window. After his arrest, he admitted the crimes, and DNA testing conducted on biological material collected demonstrated that defendant was the assailant. He was convicted by jury of five counts of forcible rape, forcible oral copulation, forcible penetration by a foreign object, attempted forcible sodomy, and residential burglary, with a true finding that the rape was committed during the commission of a burglary. He then admitted an enhancement relating to the fact he committed the crimes while on his own recognizance in another case. He was sentenced to an indeterminate term of 25 years to life for the rape, and a consecutive determinate term of 11 years for the remaining counts and special allegations. Defendant appealed.
BACKGROUND
On the afternoon of December 8, 2015, Jane Doe was sitting in her rocker-recliner in the living room of her apartment, watching television and polishing her nails, when she noticed something out of the corner of her eye. She turned and saw defendant, a stranger, coming towards her; defendant pushed her back into her chair and directed her to shut up and not to scream. Jane Doe screamed, and defendant stuck his fingers down her throat so that she felt she was choking, at which point she stopped screaming. When she screamed a second time, defendant repeated the action of forcing his fingers into her mouth until she stopped screaming.
Although Jane Doe tried to push his hands away, defendant pulled her out of her chair and flung her on the floor. Jane Doe begged him to just leave, telling him she had not looked at his face so she could not identify him. Jane Doe told defendant she was poor, and that she had no jewelry or money to steal, but defendant responded that he was not interested in any of that; he wanted to have sex with her. Defendant then proceeded to remove Jane Doe’s pants and underpants and raped her.
After raping Jane Doe vaginally, he tried to force his penis into her rectum, but he could not penetrate. Instead, he demanded that Doe orally copulate him, grabbing her hair and pushing her down onto him. Jane Doe estimated that she performed oral sex on defendant three or four times. Defendant also orally copulated Doe, and inserted his fingers into her vagina. Defendant used lotion from a bottle of lotion that was on the floor for lubrication. Over the course of the assault, which took hours, defendant dragged Doe around by her ankles. Eventually defendant ejaculated by masturbating himself, causing semen to get onto Doe’s hand.
After several hours of repeated sex acts, Doe told defendant she had to go to the bathroom. Defendant objected, telling her he was not finished, but Doe angrily told him he had been there for five hours and she needed to use the bathroom. When she came out of the bathroom, defendant was gone, having taken her cell phone, onto which he had downloaded pornographic material that was played as accompaniment to his sexual assaults, and cash from her purse. Doe dressed herself and went to a neighbor’s apartment to call police. After giving a statement, Doe was taken to a hospital where a sexual assault examination was conducted.
The evidence collected from Doe was subjected to DNA testing, and two of the swabs contained a mixture of DNA from two people, one of whom was male. A buccal swab taken from defendant was compared against the DNA profile of the male contributor and matched. Latent fingerprints were lifted from Doe’s cell phone case and the bottle of lotion. Three latent prints were found on the lotion bottle, and those were compared with defendant’s prints, resulting in a match.
Defendant was charged with forcible rape (Pen. Code, § 261, subd. (a)(2),[1] count 1), oral copulation by force (§ 288a, subd. (c)(2)(A), count 2), forcible rape by a foreign object (§ 289, subd. (a)(1)(A), count 3), attempted forcible sodomy (§§ 664, 286, subd. (c)(2)(A), count 4), residential burglary (§ 459, count 5), and robbery. (§ 211, count 6.) It was further alleged in connection with counts 1 through 4 that the violent sex acts were committed during the course of a burglary (§ 667.61, subds. (a), (d)), and that all six counts were committed while defendant was out on bail or on his own recognizance (§ 12022.1).
Defendant was tried by a jury. At the close of the People’s case in chief, the court dismissed the robbery count for insufficient evidence, upon defendant’s motion for acquittal (§ 1118.1). Defendant was convicted of the remaining counts, with the jury making a true finding that the rape was committed in the course of a burglary, within the meaning of section 667.61, subdivisions (a) and (d). Defendant admitted the on-bail enhancement, which had been bifurcated.
At sentencing, defendant was committed to state prison for an indeterminate term of 25 years to life for count 1, consecutive to the determinate sentence on the remaining counts. As to the determinate portion of the sentence, the court imposed the upper term of eight years for count 2, which was designated the principle term, a consecutive term of two years for the on-bail enhancement, a concurrent term of six years for count 3, and a concurrent term of two years for count 4. A term of six years was stayed pursuant to section 654 for count 5. With the addition of one year from another case, the total determinate sentence was 11 years, consecutive to the indeterminate term on count 1. Defendant received 128 days credit for time actually served in local custody, plus 19 days conduct credit pursuant to section 2933.1. On May 11, 2016, defendant appealed.
DISCUSSION
At his request, this court appointed counsel to represent appellant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered appellant an opportunity to file a personal supplemental brief and he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record. First, we examined the adequacy of the pretrial instructions, required by section 1122, subdivision (a). Section 1122 provides that after the jury panel has been sworn, but before opening statements, the court must instruct the members of the jury to not converse among themselves, or with anyone else, conduct research, disseminate information on any subject connected with the trial, and that they shall not read or listen to any accounts or discussions of the case reported by newspapers or other news media, or visit the scene of the crime (§ 1122, subd. (a)).
The minute orders for the case show that during voir dire, the court admonished the jurors prior to adjournment, and the minutes for each successive day include a similar notation that “[j]urors admonished.” When the jury selection was complete and after the jury had been sworn, the court gave the jury some basic information and instructed them to return on Monday morning, stating, “You have not heard any evidence in the case; so, again, do not form or express any opinions about the case, do not discuss the case or allow anyone to discuss the case with you or in your presence.”
After the first two witnesses had testified and the court took its recess, the court again admonished the jury to “keep in mind the admonitions previously give to you, not to form or express any opinions about the case, not to discuss the case or allow anyone to discuss the case with you. And that includes not discussing anything about the case, any of the witnesses’ testimony, exhibits, parties, or attorneys.”
Unfortunately, the record on appeal does not include the proceedings relating to voir dire, or jury selection. Because section 1122 specifically requires the instruction be given after the panel is sworn, the instruction would have been given in an unreported part of the record.
Nevertheless, although the reporter’s transcript does not include a specific admonition precluding the jury from conducting research, disseminating information on any subject connected with the trial, or reading or listening to any accounts or discussions of the case reported by newspapers or other news media, or visit the scene of the crime, this does not mean that the instruction was not given in an unreported portion of the record. Further, we cannot presume error and there is no attempt to show any prejudice resulting from the instances in which the record is silent. (People v. Jordan (1937) 24 Cal.App.2d 39, 56.) “[A] defendant must show prejudice from failure to admonish, to be entitled to a reversal.” (People v. Trubschenk (1955) 134 Cal.App.2d 796, 799.) Given the state of the record, it will be presumed, in the absence of a showing to the contrary, that the court did its duty and gave the proper admonition at each adjournment. (People v. Russell (1909) 156 Cal. 450, 458; People v. Montgomery (1955) 135 Cal.App.2d 507, 514-515; see also, Evid. Code, § 664.)
We have completed our independent review of the record and find no arguable issues arising from any appealable judgment or order.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.


We concur:

HOLLENHORST
J.

McKINSTER
J.



Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com



[1] All further statutory references are to the Penal Code unless otherwise indicated.