P. v. Reyes 5/9//07 CA2/7

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2007 » P. v. Reyes 5/9//07 CA2/7

State: California

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

Docket No: B185929

Case Date: 08/15/2007

Preview:Filed 5/9/07

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. HENRY O. REYES, Defendant and Appellant.

B185929 (Los Angeles County Super. Ct. No. BA265139)

APPEAL from a judgment of the Superior Court of Los Angeles County. William R. Pounders, Judge. Affirmed. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Lawrence M. Daniels and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

Pursuant to California Rules of Court, rules 8.1100 and 8.1110, only the Summary, part V of the Discussion, the Disposition, and the Concurring and Dissenting opinion are certified for publication.

*

SUMMARY

Henry Reyes was convicted of two counts of first degree burglary with a person present, one count of forcible oral copulation and two counts of forcible rape, with special allegations that he had committed the sexual assaults during the commission of a burglary with the intent to commit one of these sex crimes found true. The trial court sentenced Reyes to a term of 47 years to life in state prison. He appeals, claiming error in the trial court's denial of his motion to sever and admission of photographs of his tattoos, prosecutorial misconduct, insufficiency of the evidence and sentencing error. We affirm and publish the portion of this opinion (see section V., post) addressing Reyes's claim of error under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]. FACTUAL AND PROCEDURAL SYNOPSIS On April 24, 2004, Reyes knocked on the door of Irina Pryakhina's second-floor apartment and said something in Spanish.1 She said she did not understand Spanish, closed the door and went to sleep. Later that afternoon, she was startled by a "terrible loud racket" and immediately knew it was Reyes breaking into her apartment through the window. He had removed the screen and got tangled in the drapes before landing on the floor. Reyes came after her, "touching himself in [his groin area]." She was able to run out of her apartment, yelling, "Call for the police, call for the police." She was afraid no one could understand her because of "the lack of the language."2 Reyes tried to follow her, saying, "No, no, wait, wait," as she ran into her neighbor's apartment. He acted like he was trying to give her the phone from her own

Pryakhina identified Reyes in a photographic lineup on May 20, 2004--less than a month after he broke into her apartment.
2

1

Pryakhina testified through a Russian interpreter. 2

apartment. She yelled for him to give it back. Reyes tried to get back inside Pryakhina's apartment but the door had shut; he tried to climb back in through the window. "An American man" told Reyes not to go back in. Reyes came back toward Irina and tried to get in the neighbor's apartment. The neighbor got the phone back and got the door shut despite Reyes's efforts. The American man called the police. There was a wallet on the table, but Reyes did not take it so she concluded he had not broken in to commit theft.3 That same night, about two-and-a-half blocks away, Margaret M. and her roommate Autumn hosted a party in their new apartment to celebrate Margaret's 24th birthday with friends and meet their new neighbors. Margaret, a producer for a show on the National Geographic channel, noticed a few people who had not been invited, including Reyes. He told her he lived in another apartment. Autumn thought he was under the influence of a stimulant because he had a lot of energy, was pushing people and staring them down. Later, Margaret heard a scuffle outside. When she went out to investigate, she found Reyes laughing and yelling at her friend Peter. Peter said he had had a fight with his girlfriend, she left and he was going to go get her. Reyes jumped up and said, "If you're going to act like a little bitch, I'm going to treat you like one." He then slapped Peter with the back of his hand. Reyes took off his shirt, revealing tattoos all over his upper body, and taunted Peter: "Do you want to fight?" Autumn told Reyes he was not welcome and had to get out. Reyes laughed and did not leave.

3

She recalled that about two months before this incident, she had been smoking outside her apartment when Reyes appeared and asked for a cigarette. She said she did not have one and left. Ten minutes later, he knocked at her door and she asked him to leave. After that, she saw him through her window, sitting down and gesturing; then she heard the sound of shattering glass. A short time later, neighbors were standing outside and it turned out someone had called the police; she saw officers speaking with Reyes. 3

Trying to diffuse the situation, a guest at the party (Christopher Nahas) started talking with Reyes and walked with him to the corner outside.4 Reyes said he was from Los Angeles, had been in jail for the last five or ten years and was in a gang. Nahas believed he'd said it was 18th Street. He asked Nahas if he wanted to smoke crack and said he wanted to "get laid." He also asked Nahas if he thought any of the girls at the party wanted to smoke crack; Nahas said, "No." Reyes said he had been staying with someone on the third floor of the complex. He also said he had been seeing someone but found out the woman was in the porn industry and dumped her, calling her a "whore." Reyes had tattoos all over his body including horns on his head. Nahas received a call on his cell phone and left. Later, Peter told Autumn he was upset with her for letting Reyes back into the apartment. Autumn found Reyes on the couch and told him to leave. He wanted to know why he had to go; she told him people did not feel comfortable with him there and to "get the fuck out of here." Reyes left. Between 1:30 and 2:00 a.m., Scott Foster left the party with two friends. As they entered the elevator, Reyes exited. His speech slurred, Reyes said something complimentary about Margaret and how she was "great" as he walked toward her apartment. Foster was uncomfortable and concerned about Margaret so he called to ask her if everything was ok. Satisfied when she said she was, he did not tell her about Reyes. Margaret walked the last guests out at about 2:00 a.m. When she got back to the apartment, she realized Autumn and her friend Brandon were gone so she went back out to walk to Brandon's to get Autumn but Autumn had decided to stay at Brandon's. Margaret walked back to the apartment and started cleaning up. She heard a male voice calling her name from the family room in the dark. She saw Reyes laying on her futon, smoking a crack pipe. Reyes said he had been waiting for her all night. Margaret told
4

Nahas did not know Margaret; he attended the party with a friend and the friend's girlfriend. The girlfriend (Yvonna) was Margaret's friend. 4

him the party was over and he had to leave. Reyes told her, "[Y]ou need to relax, you need to . . . party some more with me." Margaret said, "No. The party is over. It's time for you to go." Reyes jumped up, grabbed her by the shoulders and pushed her down on the futon. He jumped on her and tried to kiss her on her mouth and neck. She tried to push him away and again said, "No," but he ignored her. Again, Reyes said he was "just trying to hang out, just trying to make the party last a little bit longer." She told him she didn't know what he was thinking--he needed to get out. He told her: "You need to relax. You're . . . strung too tight." Reyes put the crack pipe in Margaret's mouth and plugged her nose trying to force her to inhale as he laughed at her. She was not a smoker and swallowed the smoke instead of inhaling. She "felt terrible," "like she was choking." She lost her bearings in the room. Her eyes were watering so she couldn't see clearly. She tried to stay calm, hoping to find a moment to run for the door, but he kept himself between her and the doorway. Thinking she could move away from him, she tried to get up and said, "I just need to get a glass of water." He stood with her, saying he would get it, but pushed her down and kissed up her legs, pulling her underwear off from beneath her skirt. He put his mouth on her vagina. Again, she pushed him and said, "No." Reyes had taken all his clothes off; Margaret was still fully clothed except for her underwear. Reyes had devil horns tattooed on his forehead. He had "Latin Pride" tattooed across his chest and "South Central" on his stomach. His arms were also covered with blue and green tattoos. Reyes was on top of Margaret and pinning her shoulders and upper arms. His penis penetrated her vagina but Margaret was wearing a tampon. She said, "Well, you found out for yourself. This isn't going to happen, is it?" He said, "That's no problem." Then he pushed her onto the floor, with his knees on Margaret's shoulders and arms and tried to put his penis in her mouth. She kept her mouth closed and kept trying to move her head away from his penis, but it kept hitting her lips. He laughed, saying, "Yeah, I know you like that, don't you, you little bitch. Yeah[,] you're a whore. You're a f'ing whore. I know you like it." He slapped her with his forehand and backhand.

5

Then Reyes pulled out Margaret's tampon and repeatedly inserted his penis eight times, hurting her. He hit her anus once. He ejaculated, groaned and fell off of her. She sprinted up the steps to the bathroom and locked the door. He was knocking on the door and "back to the other personality of, `What are your doing? You're crazy. Where did you go? Why are you acting like this?'" She did not respond, instead jumping in the shower where she "just kept washing everything." She heard the front door slam. She ran to her bedroom, locked the door and fell asleep. After she woke up, she watched movies on her computer, something she did when bad things happened to her. When Autumn came home, Margaret "wasn't herself." Autumn found her "in her room in the dark. She was "abnormally quiet." Although Margaret straightened her hair "absolutely every day," it was very curly and slightly damp. She had "dark[,] dark purple bruises all the way around her neck." There was a knock at the door. When Autumn answered it, Reyes asked her for a glass of water and then asked if Margaret was home. She said if she ever saw him again, she was going to kill him and shut the door. Later, when Autumn told Margaret about Reyes asking for water and Margaret at the door, Autumn could see Margaret's body shaking. She got really quiet and stayed in bed the whole day watching movies. At 7:00 the next morning, Margaret picked up her boss at the airport. Although it was supposed to be 80 degrees that day, she wore a black turtleneck. She drove herself and her boss into work. When she signed onto her instant messager, one of her friend's who had been at the party wrote about how Reyes had been bragging about being in jail for six years, being in a really notorious gang, being from South Central, having lots of drugs he could get if anyone wanted and "lots of other terrible things." He also bragged that he was going to "hookup with one of the girls" at the party that night. It was the "push over the edge" that made Margaret realize it didn't matter about her job, and it didn't matter what people would think. What mattered was that Reyes had done this to her, he knew where she lived and he would do it again to her or someone else and she needed to do something about it because she didn't want to be a statistic, hiding and regretting it for the rest of her life. She knew she had been raped but she hadn't 6

been able to admit it to herself before that because she felt she had been weak, that she let it happen, that she hadn't done what the books tell you to do "which was not to take a shower afterwards" and then hadn't been able to stand up for herself. She asked a friend from work to drive her to the police station where she filed a police report. Detectives then took her to the Valley Trauma Center at Northridge Hospital where Nurse Practitioner Marilyn Stotts interviewed and examined Margaret on April 26, 2004. She described the events of the night of the party. She had one shot of tequila and three margaritas within the seven hours before the assault. She had vaginal and rectal discomfort as well as discomfort in her upper back and the sides of her neck. The amount of force she described was corroborated by her injuries which were photographed. She had a laceration on her finger, an abrasion on her left arm, very large injuries on her neck, an abrasion on her vagina and two anal lacerations. Margaret was "just different" after that; she never felt comfortable again. She had been very active, running or hiking every morning, but she stopped doing that. She would call for Autumn to meet her if she had to go in the elevator or to bring her up from the parking garage. As a result of what Reyes did to her, she moved out of her apartment, gave up her entertainment career and moved out of state. Reyes was charged with two counts of burglary (counts 1 and 5), one count of forcible oral copulation (count 2) and two counts of forcible rape (counts 3 and 4). As to counts 2 through 4, it was alleged that Reyes committed these offenses during the commission of a burglary with the intent to commit rape and by the use of force, violence, duress, menace and fear of immediate and unlawful bodily injury. As to counts 1 through 4, it was further alleged that Reyes had served three prior prison terms. At trial, the People presented evidence of the facts summarized above. Both sides entered into a stipulation that a comparison of a swab of cells taken from inside Reyes's mouth confirmed that it was Reyes's sperm found in Margaret's sexual assault kit. Nurse Practitioner Stott testified that most people do not receive injuries during consensual sex, and said Margaret's vaginal abrasion was a typical injury from a sexual assault.

7

Gail Abarbanel, director of the Rape Treatment Center at Santa Monica UCLA Medical Center and trained as a social worker, testified about rape victims' reactions, including defenses and delays or failures to report their attack. "[I]n the immediate aftermath a lot of victims are . . . just really in shock, they're kind of numb." She explained that it is "very common" for many victims to "dissociate during the attack" as a way to escape psychologically after they are physically unable to do so. The most common presentation of victims in the first hours or days after their assault is "exactly the opposite of what most people expect." Rather than crying or showing anger, they usually present with "very flat affect"--dazed, numb, in shock. Reyes testified in his own defense. On the night of the party, he said, he was going to see his friend John "Juice" Born. When he got there, he saw Peter and his girlfriend (Ashley) arguing outside. Peter pushed Ashley into a wall. Reyes stepped between them and said everything was alright. Ashley told him she was going to a party and invited Reyes to go with her.5 He went inside with Peter and Ashley. Everyone there was drunk, including Margaret. Later, Peter raised his voice to Ashley again and Reyes suggested he speak to her differently. Peter came toward Reyes, and Reyes hit him. Peter challenged him to go outside, but Reyes then apologized to Peter. He left to visit his friend Juice, but he was not home. He was going to leave, but a Cuban man said, "You know, man, you got to stay, man, kick it;" "you all right." Autumn saw him and said he could stay. After that, Margaret and Autumn approached him, discussing between themselves which one would get to talk to him. Margaret asked him to come inside. She was drunk and very friendly. Only Autumn and Margaret were inside the apartment by that time, and Margaret asked Autumn to leave. Margaret approached him, they looked at each other and hugged and kissed. Autumn and Margaret went upstairs giggling, then Autumn

In rebuttal, the People presented testimony that Ashley had not invited Reyes to the party and further disputing his account.

5

8

left again. At the same time, Margaret and Reyes hugged and kissed again and Margaret moaned. Reyes was "going down on her" when Margaret said she had her period. She grabbed him by the neck, lay down on the carpet and told Reyes to come to her. He kissed her neck and she said she liked that. Margaret pulled down her underwear, removed her tampon and had sex with Reyes. Margaret was "messy" so she went up to take a shower but told Reyes to wait for her. When he went to look for her, she called him into her room and he lay down on her bed. Later, Margaret said she was tired and was going to bed; she told Reyes to come back the next day. Reyes admitted he had prior convictions for sales of a controlled substance and taking a vehicle without the owner's permission. He also admitted lying about his name and his birthdate on multiple occasions. Born was called as a defense witness but denied he was Reyes's friend. He said his name was not John; it was Justin. Around Halloween of 2003, he met Reyes and they went back to Born's apartment for about two hours and smoked crack that night. The next day, Reyes unexpectedly just walked in the open door of Born's apartment which Born found strange because it was a secure building. Reyes displayed a lot of "jailhouse tattoos" and was "threatening and menacing" to Born's friends. He talked like he wanted to start a fight. Born said, "They're my friends. What are you doing? We're just hanging out." He grabbed Born's phone and said he was calling his wife in Mexico. He kept saying, "I'm Killer," and "They call me Killer," like "Don't mess with me." Although Born didn't tell people he had one, Reyes asked to borrow Born's gun, but Born did not give it to him. Reyes left with a girl who had been at Born's apartment. Reyes returned unannounced to Born's apartment two more times when Born was out but his roommates were home. Finding Reyes to be "a little bit more than he could handle as a friend," Born had a phone conversation with Reyes. He said it was "nothing personal," but he didn't "want to hangout." He tried to be diplomatic because Reyes was "dangerous." Reyes's reaction was one of "denial," like "There is no way, you know, that you are saying this to me . . . ." This conversation took place about five months prior 9

to April 24, 2004 (the night of Margaret's party). It was the last time Born spoke with him; he never invited him back, but Reyes returned the night of the party. The jury found Reyes guilty on all counts and found true the special allegations relating to counts 2 through 4 that Reyes had committed these offenses during the commission of a burglary with the intent to commit rape. On the People's motion, the prior conviction allegations were dismissed. The trial court sentenced Reyes to a state prison term of 47 year to life as follows: on the principal term (count 4), 25 years to life; the upper term of 8 years on count 2; the upper term of 8 years on count 3; and the upper term of 6 years on count 5. (The sentence on count 1 was ordered stayed pursuant to Penal Code section 654.) Reyes appeals.

DISCUSSION I. Reyes Has Failed to Demonstrate Prejudicial Error in the Trial Court's Denial of His Motion to Sever the Burglary Count Involving Irina Pryakhina.

As relevant, Penal Code section 954 provides: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. . . ." (All undesignated statutory references are to the Penal Code.) "The law prefers consolidation of charges. [Citation.] Where, as here, the offenses charged are of the same class, joinder is proper under section 954. . . ." (People v. Ochoa (2001) 26 Cal.4th 398, 423, citations omitted.) "The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citation.] [

Download P. v. Reyes 5/9//07 CA2/7.pdf