P. v. White 12/15/04 CA2/4

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State: California

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

Docket No: B166502

Case Date: 03/23/2005

Preview:Filed 12/15/04

CERTIFIED FOR PUBLICATION

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

THE PEOPLE, Plaintiff and Respondent, v. KEITH L. WHITE, Defendant and Appellant.

B166502 (Los Angeles County Super. Ct. No. VA072175)

APPEAL from a judgment of the Superior Court of Los Angeles County, James M. Sutton, Jr., Judge. Affirmed in part, reversed in part and remanded. Patricia A. Scott, 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, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Keith White appeals from his conviction on charges of forcible rape, forcible oral copulation by future threats, and robbery. In his original appeal, he contended that the evidence was insufficient to support the charge of oral copulation through threat of future injury. We sent a letter to counsel asking them to address whether the 1998 changes in Penal Code1 section 288a, which separated the various methods of committing forcible oral copulation into different subdivisions, were intended by the Legislature to be technical and not substantive. While the appeal was pending, the United States Supreme Court issued its decision in Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] (Blakely), which casts doubt on certain aspects of California's sentencing scheme, particularly the manner in which judges impose upper prison terms. Accordingly, we granted leave to file supplemental briefing on sentencing issues raised by Blakely. Finally, in August of this year, appellant sought, and we granted permission, to file a second supplemental brief seeking review of purported nunc pro tunc orders issued by the trial court after notice of appeal was filed. The effect of the orders was to substantially increase appellant's sentence on the robbery charge by increasing the enhancement. We conclude that substantial evidence supports appellant's conviction of forcible oral copulation, but agree with appellant that Blakely requires reversal of the sentence imposed. Additionally, as respondent concedes, the trial court compounded its sentencing error by improperly increasing the enhancement on the robbery in its nunc pro tunc orders. Accordingly, we remand for resentencing only.

1

All statutory references herein are to the Penal Code unless otherwise specified.

2

FACTUAL AND PROCEDURAL BACKGROUND On March 10, 2003, a four-count amended information was filed, charging appellant with: forcible rape by means of force, violence, duress, menace, or fear of immediate and unlawful injury in violation of Penal Code section 261, subdivision (a)(2), in counts 1 and 3; forcible oral copulation by future threats in violation of section 288, subdivision (c)(3), in count 2; and second degree robbery in violation of section 211 in count 4. It was alleged as to counts 1, 2, and 3 that appellant was ineligible for probation or suspension of sentence pursuant to section 1203.065, subdivision (a), and that he used a firearm or deadly and dangerous weapon within the meaning of section 667.61, subdivisions (a), (b), and (e). It was alleged as to all four counts that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b). Appellant pled not guilty to all charges. He was found guilty by a jury of one count of forcible rape; forcible oral copulation through future threats as alleged in count 2; and robbery as alleged in count 4. He was found not guilty on count 3. The jury found the weapons allegations to be true. Sentencing For count 2, the court imposed the upper term of eight years. Reviewing the aggravating factors, the court stated at the sentencing hearing that appellant's crime "involved unspeakable violence, great bodily harm, [and] the threat of bodily harm," in addition to being "vicious" and "callous." The victim was said to be "particularly vulnerable" due to her "slight physiognomy." The court further noted that appellant was on probation or parole at the time of the crime for robbery, and that appellant "personally used a firearm in the commission of the crime." The court believed that the crime involved "planning" but chose to "disregard that as an aggravating factor."
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Appellant was sentenced to 37 years and 4 months to life, consisting of: 15 years to life for count 1; the upper base term of 8 years enhanced by 10 years for count 2; and one-third the base term or 1 year enhanced by a term of one-third the prescribed term or 3 years and 4 months for count 4, all to run consecutively.2 He was given 288 days of custody credit, and restitution and parole revocation fines were imposed pursuant to section 1202.4, subdivision (b) and section 1202.45.3 Trial The victim, Rita B., testified that on July 27, 2002, between 1:00 and 2:00 p.m., she went out for a walk on the bicycle trail that ran along the San Gabriel River. She first spotted appellant wearing a blue shirt and dark pants, climbing over the fence that separated the path from a nearby back yard. He appeared to be walking away from her. A short time later, she heard angry shouting behind her. The words she heard were initially incomprehensible, but she came to understand that someone was saying "Turn around, bitch. Stop. Turn around, bitch. Look at me." She turned around and saw appellant pointing a gun at her. The gun was only about a foot from her face. He said he was going to shoot her and told her not to turn around. He forced her to walk backwards toward a freeway underpass. He kept telling her to keep walking and threatening to shoot her, and also kept telling her to look at him.

As is discussed below, the minute order and abstract of judgment conflict with the reporter's transcript, and shows a sentence of 16 months plus 3 years for the enhancement on count 4.
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2

Appellant was under 18 at the time, and was therefore remanded to juvenile authorities until age 21.

4

Once they were in a somewhat more secluded area, appellant told Rita to empty her pockets. She had a radio, and offered it to him. He told her to remove her clothing. She initially refused, but he put the gun to her head. He told her to get down on her knees and open her mouth or he would shoot her. He placed his penis in her mouth. She tried to pull away. Putting both his hands on her neck, he pulled her back towards him, propping the gun briefly against a nearby wall. He next told her to stand, and tried to put his penis inside her anally. He then led her further down toward the riverbed. He made her lie down and put his penis inside her vaginally. At that point, she was not looking at him and did not know whether the gun was in his hands or on the ground. While the attack was going on, a man riding a bicycle on the path came within view. Appellant lay down and told Rita to sit on him, facing towards him. He smiled at the bicyclist and gave him a "thumbs up" sign. He told Rita he would shoot her if she said anything. She waived her hands behind her back, trying to signal to the bicyclist that something was wrong. When the bicyclist moved away, appellant got up and told Rita to stand up and get her clothes. She started to run one way down the path, and he ran the other way. Rita immediately encountered a young couple on bicycles and told them she had been raped. She indicated appellant who could still be seen running away. The young man chased after appellant. The young woman called 911, and sheriff's deputies soon arrived. A few hours later, the deputies took Rita to view appellant, who had been placed in custody. She positively identified him as the attacker. Steven Hernandez testified that he was riding his bicycle on the path on the day in question when he saw Rita sitting naked on top of an African-American man Hernandez could not identify. Rita waved her hand behind her back. Hernandez loudly said that what they were doing "wasn't right." A few moments later he saw the man running away. He appeared to have a long stick in his hand.
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Brianne Gomez confirmed seeing Rita on the path in a frantic state on the day in question and calling 911 on her behalf. Her boyfriend, Oscar Castillo, testified that he chased after the person pointed out by Rita, and saw the man, whom he was able to identify as appellant, jump a fence. Deputy John Steele took the information concerning where the assailant was last seen and set up a containment area. He observed fresh footprints going toward a particular residence's yard. Appellant was located at the residence, along with a rifle. He was wearing clothing that did not match the description given to the police, but clothing matching that description and Rita's radio were found inside the house. The footprints observed leading to the residence matched appellant's shoe size. A nurse examined Rita and found injuries consistent with her description of the assault. The defense presented no witnesses or evidence. With respect to count 3, the jury was instructed that appellant was accused of having committed the crime of "unlawful oral copulation in violation of section 288a subdivision (c)(3) of the Penal Code," which was defined, in pertinent part, as follows: "Every person who participates in an act of oral copulation against the will of the victim by threatening to retaliate in the future against the victim or any other person and there is a reasonable possibility that the perpetrator will execute the threat, is guilty of the crime of unlawful oral copulation in violation of Penal Code section 288a subsection (c) subdivision (3). . . . Threatening to retaliate means a threat to kidnap or falsely imprison or inflict extreme pain, serious bodily injury, or death. In order to prove this crime each of the following elements must be proved: (1) a person participated in an act of oral copulation with an alleged victim; and (2) the act was accomplished against the alleged victim's will by threatening to retaliate in the future against the alleged victim or any other person;
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and there was a reasonable possibility that the perpetrator would execute the threat." In closing argument to the jury, the prosecutor stated in reference to count 2: "Count 2 . . . is a charge of oral copulation. . . . The elements are that a person participated in an act of oral copulation with an alleged victim . . . and this act was accomplished against her will by threatening to retaliate in the future against her, and there was reasonable possibility that the perpetrator would execute the threat." Concerning the latter element, the prosecutor stated: "[T]he second element has to do with the defendant making threats, a threat to retaliate in the future, with the reasonable probability that the perpetrator would execute the threat. With regard to the oral copulation, the threat in this case was [appellant] threatening to shoot [the victim]. You'll remember Rita said: [`]I don't want to do this. I can't do this. I can't do it. No. Please, no.['] But the defendant pointed the gun at her and said: [`]I'll shoot you. I'll shoot you. You do it now. Do it now, bitch. Do it now.['] This was the threat, the threat to retaliate, the threat to inflict bodily injury on her." DISCUSSION I The sole original issue raised on appeal was whether the evidence was sufficient to support appellant's conviction for oral copulation accomplished by threat of future retaliation under section 288a, subdivision (c)(3). Appellant argued that his threat to shoot Rita could not be construed a threat to retaliate in the future. Instead, it was an immediate threat that should have been charged under subdivision (c)(2). A review of the history of section 288a and the similar provisions of section 261, and their interpretation by the courts, establishes that the variance between the information and the facts proved at trial was, at most, harmless error.
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Section 288a, subdivision (c) is divided into three subparagraphs. Subdivision (c)(3) provides: "Any person who commits an act of oral copulation where the act is accomplished against the victim's will by threatening to retaliate[4] in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison . . . ." The other two subparts of subdivision (c) make it a felony to participate in oral copulation with a person "under 14 years of age and more than 10 years younger than [the assailant]" (

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