P. v. Baccari

 

 

 

 

 

 

 

 

 

 

 

Filed 6/20/13  P. v. Baccari CA3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Placer)

----

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   PATRICK GREGORY BACCARI,                           Defendant and Appellant.

C069981   (Super. Ct. No. 62098288)

 

 

 

            Defendant
Patrick Gregory Baccari was convicted after a jury trial of rape of an
unconscious person, sexual penetration of an unconscious person, first degree
burglary, and assault with intent to commit rape during the commission of href="http://www.mcmillanlaw.com/">first degree burglary.  On appeal, he challenges the sufficiency of
the evidence to support his burglary-related convictions and the legality of
his first degree burglary conviction.  We
dismiss his first degree burglary conviction and otherwise affirm the judgment.

Facts and Proceedings

            On March 21, 2009, Jane Doe held a party
in her home to celebrate Lorraine G.’s birthday.  After decorating the house, Doe, Lorraine G.,
Amy B. and Michelle P. prepared for the party in Doe’s upstairs bedroom.  During this time, Doe drank one to two mixed
drinks, containing beer, vodka and limeade. 
She also smoked some marijuana and shared an Ecstasy pill with one of
the women.  The women then made their way
downstairs sometime between 8:00 p.m.
and 10:00 p.m. to meet the party
guests. 

            Once
downstairs, Doe began to socialize and mingle. 
She had an additional one to two mixed drinks downstairs.  The party guests were told they were not
allowed upstairs and were instructed to use only the two downstairs
bathrooms.  The stairway was taped off
with caution tape. 

            Defendant
arrived at the party sometime before 11:30 p.m.
or midnight and was introduced to Doe
and others by a mutual friend, Jason K. 
Defendant was subsequently seen interacting with Crystal--one of the
women Jason K. had introduced him to earlier. 
Defendant was touching her arms, putting his hands around her, and
attempting to kiss her.  Crystal
appeared intoxicated and uncomfortable, so one of her friends helped her out of
her situation by pretending to be her boyfriend.  Crystal
eventually had to be carried away from the party because she was so
intoxicated. 

            Defendant was
seen going upstairs some time before midnight.  Lorraine G. told him he was not allowed to be
upstairs and defendant said he was attempting to use the bathroom.  Lorraine G. told him he had to stay
downstairs and to use one of the two bathrooms down there. 

            Around 1:00 a.m., Doe went back upstairs to smoke some
marijuana with friends.  After taking one
or two hits, she sat down on her bed and immediately felt sick.  She went to her adjoining master bathroom and
started vomiting.  Lorraine G. and Michelle
P. cared for Doe as she knelt over the toilet. 
By the time Amy B. came upstairs to help, Doe had already vomited
several times and passed out.

            Doe
remained on the bathroom floor, first vomiting and then passed out, for over an
hour.  During that time, several party
guests made their way upstairs, despite the rule to the contrary.  R.R., who arrived at the party with Jason K.,
went upstairs and saw Doe lying on the floor next to the toilet in the master
bathroom.  Jason K. also went upstairs
twice and, on both occasions, saw Doe lying on the floor next to the
toilet.  On both occasions, Jason K. was
accompanied by defendant. 

            Doe’s
friends removed her pants, underwear and shirt because she had urinated on
herself.  They put her in her bed,
wearing a bra and shirt, and wrapped in blankets.  The friends then went back downstairs,
leaving Amy B. with Doe in the bedroom where Amy B. intended to stay for the
rest of the night.  After awhile,
however, she went downstairs briefly to say goodnight to guests who were
leaving.  When she left the room, Doe was
asleep in her bed, covered in blankets, and the lights were off. 

            Not long
thereafter, Doe was awakened by defendant ejaculating with his penis inside of
her vagina.  She was unable to move and
fell back to sleep.  She was then
awakened again by pain in her vagina or anus. 
Defendant was kneeling by her bed and had his fingers inside her.  Doe slid her feet up and down in an effort to
escape but defendant continued.  When Doe
finally managed to call out for Amy B., defendant retreated toward the
door. 

            Amy B.
entered the room to find defendant at the threshold.  She pulled him from the room and asked him
what he was doing there.  Defendant said
he was using the bathroom.  She noticed
that his jacket was wet and asked him why. 
He responded that he was using the bathroom.  She told him there was a closer bathroom in
the hall that did not require him to enter Doe’s bedroom. 

            Amy B. went
over to Doe and found her curled up and shaking.  She asked what had happened and found out
defendant had touched Doe.  Amy B.
summoned Lorraine G. who, after discovering what had happened, confronted
defendant.  Defendant did not act shocked
or deny the accusation.  The party guests
were told to leave.  Lorraine G. called
the rape hotline and followed the instructions on how to care for Doe.  Doe was taken to the hospital the following
day and underwent a sexual assault examination. 


            When Jason
K. left with defendant, he asked him “What the hell happened?”  Defendant replied, “Nothing happened.  It was all bullshit.  They were accusing me of some crap.”  Jason K. later asked defendant if he had
raped Doe and defendant said he did not and that it was “bullshit.” 

            Officers
had significant difficulty executing a warrant to collect defendant’s DNA,
including making numerous attempts to locate him at his home, leaving multiple
unreturned voicemails, placing a GPS tracking device on his car, and eventually
finding him at his mother’s residence. 

             Doe’s rectal, labia majora and external
genital swabs produced sperm matching defendant’s referenced DNA profile.  Doe’s vaginal swab yielded DNA of a male
contributor and defendant could not be excluded as that contributor. 

            Defendant
ran away to Philadelphia during trial, after Doe completed her testimony.  The trial proceeded in his absence.  The jury found him guilty of rape of an
unconscious person (Pen. Code, § 261, subd. (a)(4); unless otherwise stated,
all statutory references that follow are to the Penal Code), sexual penetration
of an unconscious person (§ 289, subd. (d)), first degree burglary
(§ 459), and assault with intent to commit rape during the commission of
first degree burglary (§ 220, subd. (b)). 
He was later arrested and extradited from New York. 

            The trial
court sentenced defendant to life with the possibility of parole for assault
with intent to commit rape during the commission of first degree burglary,
three years (stayed pursuant to section 654) for rape of an unconscious person,
two years (stayed pursuant to section 654) for first degree burglary, and a
concurrent three years for sexual penetration of an unconscious person. 

Discussion

I

>Sufficiency of the Evidence

            Defendant
challenges the sufficiency of the evidence to support his burglary-related
convictions.  Specifically, he argues
there was insufficient evidence he intended to commit rape, sodomy, or sexual
genital penetration of an unconscious woman when he entered Doe’s room. 

            When the
sufficiency of the evidence is challenged on appeal, we review “the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence--that is, evidence which is reasonable,
credible, and of solid value--such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.”  (People v. Johnson (1980)
26 Cal.3d 557, 578.)  A conviction
will be reversed for insufficient evidence only if it “clearly appear[s] that
upon no hypothesis whatever is there sufficient substantial evidence to support
it.”  (People v. Redmond (1969)
71 Cal.2d 745, 755.)  “If the
circumstances reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.”  (People v. Albillar (2010)
51 Cal.4th 47, 60.)

            Defendant’s
specific intent to commit a crime may be inferred from all of the facts and
circumstances disclosed by the evidence. 
(People v. Guerra (2006) 37 Cal.4th 1067, 1130, disapproved
on other grounds in People v. Rundle (2008) 43 Cal.4th 76,
151.)  “Intent is rarely susceptible of
direct proof and usually must be inferred from the facts and circumstances
surrounding the offense.”  (People v.
Pre (2004) 117 Cal.App.4th 413, 420.)

            Defendant
insists that the inference of felonious intent is “based entirely on the
suspicions and conjecture of the prosecutor” and that the “only reasonable
conclusion supported by the evidence” is that defendant entered the room
intending to use the bathroom.  We
disagree. 

            Even if it
is possible to infer from the evidence that he entered the room with the intent
to use the bathroom, our standard of review requires us to draw inferences most
favorable to the judgment in an effort to determine whether the circumstances
reasonably justify the trier of fact’s findings.  (People v. Boyer (2006) 38 Cal.4th 412, 479-480;
see also People v. Bean (1988)
46 Cal.3d 919, 932-933.)  Viewing
the evidence in the light most favorable to the judgment, and drawing
inferences that the jury could have drawn in support of its verdict (see Boyer,
at pp. 479-480), we
find the evidence supports the judgment.

            First,
there was evidence that defendant was interested in sexual contact with women
at the party.  Earlier in the evening, he
was observed with Crystal, touching her arms, putting his hands around her and
attempting to kiss her.

            Despite
being told that he was not allowed to go upstairs in the house and should use
the downstairs bathrooms if needed, defendant went upstairs on at least two more
occasions when he was able to see the victim lying on the floor, apparently
passed out, by the toilet.  Later the
victim’s friends returned to the party downstairs without the victim.

            After the
assault, when confronted by Amy B. at the door to the victim’s bedroom,
defendant claimed that he was only there to use the bathroom.  When asked why his jacket was wet, he claimed
that happened while he was using the bathroom. 
When confronted by Lorraine G. concerning a possible sexual assault,
defendant neither acted shocked nor denied the accusation.

            Based on
this evidence, contrary to defendant’s assertion, the jury could reasonably
infer defendant knew it was likely Doe was passed out in the room when he
entered.  And the jury could have
inferred he intended to commit rape, sodomy, or sexual genital penetration of
an unconscious woman when he entered Doe’s room by the fact that it is
precisely what defendant did after he entered the room.  There is no better proof that defendant
entered the room with the intent to commit the sex-related felonies than
showing that he did in fact commit them after entry.  (See, People
v. Abilez (2007) 41 Cal.4th 472, 508.) 
If he had intended only to use the bathroom, he could have done so and
left.

            In sum, we
conclude that the evidence is sufficient to support the verdicts as to each of
the burglary-related counts.

II

>The Conviction for First Degree Burglary

            Multiple
convictions cannot be based on necessarily included offenses.  (People
v. Reed (2006) 38 Cal.4th 1224, 1227.) 
Defendant contends, and the People concede, that his conviction for
first degree burglary must be dismissed as a lesser included offense to the
assault with intent to commit rape during the commission of first degree
burglary conviction.  We agree.

            Under
section 459:  “Every person who enters
any house, room . . . with intent to commit . . . any
felony is guilty of burglary.”  And
section 460 provides in relevant part: “Every burglary of an inhabited dwelling
house . . . is burglary of the first degree.”

            For assault
with intent to commit rape during the commission of first degree burglary,
section 220, subdivision (b) provides in relevant part: “Any person who, in the
commission of a burglary of the first degree, as defined in subdivision (a) of
Section 460, assaults another with intent to commit rape, sodomy, oral
copulation, or any violation of Section 264.1, 288, or 289 shall be punished by
imprisonment in the state prison for life with the possibility of parole.”

            “Thus,
first degree burglary is a lesser included offense of section 220, subdivision
(b)” because “assault with intent to commit rape during the commission of first
degree burglary cannot be committed without also committing first degree
burglary.”  (People v. Dyser (2012) 202 Cal.App.4th 1015, 1021.)

            We,
therefore, modify the judgment by dismissing count five as a lesser included
offense of count six.

Disposition

            The
judgment is modified to dismiss the first degree  burglary conviction (count five).  As modified, the judgment is affirmed.  The trial court is directed to prepare an
amended abstract of judgment and forward a certified copy thereof to the href="http://www.mcmillanlaw.com/">Department of Corrections and
Rehabilitation.

 

 

 

                                                                                              HULL                           ,
J.

 

 

 

We concur:

 

 

 

          BLEASE                       ,
Acting P. J.

 

 

 

          MAURO                       ,
J.