P. v. Gonzalez 6/2/10 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G041178

Case Date: 08/19/2010

Preview:Filed 6/2/10 P. v. Gonzalez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, v. PEDRO GONZALEZ, Defendant and Appellant. G041178 (Super. Ct. No. 06CF3931) OPINION

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed in part, reversed in part and remanded. Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was sentenced to 35 years to life in prison for committing a string of attacks against three female victims. He contends: 1) The trial court erred in failing to instruct the jury that voluntary intoxication can be a defense to the crimes of kidnapping and rape; and 2) his conviction for bringing drugs into jail should be reversed because he did not enter the jail of his own accord. We agree with his second contention and will therefore reduce his conviction from bringing drugs into jail to the lesser included offense of simple possession. In all other respects, we affirm. FACTS1 Aracely V. and her boyfriend Roberto Marquez encountered appellant as they were walking back to Aracelys apartment one evening. Believing that Marquez was staring at him, appellant stopped his bicycle and confronted the couple, demanding to know what Marquez was looking at. When Marquez didnt answer, appellant shoved him. The two men fought and Marquez hit appellant in the face. Then, appellant threatened Marquez and rode off. Believing the conflict was over, Marquez walked Aracely home before going back to his own apartment. After some time had passed, Aracely decided to call Marquez to make sure he had arrived home safely. When he didnt answer his phone, she grew worried and convinced her friend Alfonso to go out with her to search for him. A block away from their apartment, they ran into appellant. Recognizing Aracely, appellant grabbed her by the arm and placed a knife against her stomach. He told Alfonso to leave and threatened reprisal if he called the police. Alfonso ran back to the apartment to get help. Once he was out of sight, appellant seized Aracelys cell phone and led her to a nearby garage, where he lived. Although Aracely tried to befriend appellant, he was not cooperative and instead demanded to know her boyfriends name and address. When Aracely wouldnt provide

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We will limit our statement of the facts to the counts at issue in this appeal.

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that information, he forced her to undress. She stood naked for five minutes as he stared at her. He then began laughing and insisted he wanted nothing to do with her. After ordering her to redress, he again demanded her boyfriends name and address. Aracely refused to tell him and begged him to let her go. They stayed like this in the garage for two hours before appellant decided to move her to a new location. Appellant eventually led Aracely out of the garage and down the street, carrying the knife and holding her by the arm. When a man approached from the opposite direction, he forced Aracely to crawl under a trailer parked along the side of the road. Appellant brandished the knife and threatened the stranger, telling him to turn around and go back the way he came. Aracely tried to escape while appellants attention was on the other man, but appellant stopped her. Once the stranger was gone, he allowed her to get out from under the trailer and led her to an old house with a car parked in the backyard. He ordered Aracely into the backseat of the car and forced her to undress. He then took off his pants and raped her. Although he had difficulty maintaining an erection and was unable to ejaculate, he was able to penetrate her vagina twice during a period of about ten to fifteen minutes. Aracely noticed that appellant smelled of alcohol. She threatened to call the police, but appellant just laughed. In fact, he burst into laughter several times during the assault. When it was over, he kept Aracely in the car for another three to four hours, while continuing to demand the name of her boyfriend. He then took her back to his garage and held her there for three more hours, until around 5:00 a.m., before he finally gave her back her cell phone and let her go. When Aracely got home, she told her roommate about the ordeal, but she did not call the police because she was in the country illegally. Nonetheless, when appellant was arrested several months later, she identified him as her assailant. While appellant was in custody, the police told him that, in addition to the crimes involving Aracely, he would have to face additional charges if he tried to bring 3

anything illegal into the jail. At the jail itself, there were signs warning of the consequences of bringing narcotics into the jail. However, when appellant was searched prior to entering the jail, deputies found 151 milligrams of methamphetamine in his shoe. Appellant said he didnt divulge the drugs because he was scared and he was saving them for later. I In counts 4 and 5, appellant was charged with kidnapping for rape and rape. The trial court instructed the jury it could consider the evidence of appellants intoxication in deciding whether he committed kidnapping for rape, but not whether he committed kidnapping or rape. Appellant contends it was error to limit the jurys consideration of intoxication in this regard, but we disagree.2 Arguably, appellant waived this claim by failing to raise it in the trial court. (People v. Saille (1991) 54 Cal.3d 1103, 1119-1120; People v. Lee (1994) 28 Cal.App.4th 1724, 1734.) In any event, the claim fails on its merits. Evidence of voluntary intoxication is relevant to the issue of whether the defendant formed the requisite intent for a specific intent crime, but it is not relevant in deciding whether the defendant is guilty of a general intent crime. (Pen. Code,

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