P. v. White 5/1/07 CA5

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State: California

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

Docket No: F050184

Case Date: 07/12/2007

Preview:Filed 5/1/07 P. v. White CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F050184 Plaintiff and Respondent, (Super. Ct. No. F05908615-8) v. ADRIAN JOE WHITE, Defendant and Appellant. OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge. Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Adrian Joe White was convicted of several sex crimes. Additional findings included that he was convicted of a prior serious felony within the meaning of the Three Strikes law, that he served four prior prison terms, and that he suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a).1 He was sentenced to prison for 69 years. He appeals, claiming the upper and consecutive terms were imposed based on facts not found by the jury, there was a dual use of facts in imposing full consecutive sentences, and the court erroneously imposed a security fee for offenses committed before the effective date of the statute. Most significantly, we are called upon to apply the recent United States Supreme Court case of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] to determine if defendant's sentence was properly imposed. We remand the matter to the trial court for further proceedings. FACTS AND PROCEEDINGS In the early morning hours of January 4, 1996, 14-year-old Elizabeth was asleep in the living area of an apartment she shared with her mother, her 16-year-old brother, her four-year-old sister, and her 46-year-old grandfather. Her brother and grandfather were asleep in the bedroom. Her mother and sister were sleeping nearby. She awoke when she felt someone rubbing her vagina underneath her panties. She was told by defendant, an intruder, that if she did not cooperate he would kill her. He told her he had a gun; if she did not remain quiet, he would kill her sister. She was raped (count 1) and orally copulated (count 4), and defendant sexually penetrated her vagina and anus by force with a finger (counts 2 & 3). Elizabeth's mother woke up when defendant dropped something. Defendant told the mother not to move, that he had a gun. Defendant left.

1

All future code references are to the Penal Code unless otherwise noted.

2.

The mother called the police. Elizabeth was examined at the hospital and swabs were taken from her. In addition, the sleeping bag she was using at the time was kept as evidence. In September of 2003, DNA from the sperm gathered from Elizabeth and from the sleeping bag was identified as belonging to defendant. Neither Elizabeth nor her mother was able to identify defendant at trial. Because of the passage of time, Elizabeth was not able to recall all the details of the assault at trial. The officer who took her statement testified about the statement Elizabeth gave shortly after the attack. Defendant did not challenge that a sexual assault on Elizabeth had occurred. His defense was that the DNA wrongly identified him as the perpetrator. Defendant was convicted of forcible rape (

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