P. v. Blakaj

Filed 11/13/09 P. v. Blakaj CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed.

Bernstein Law Offices, Inc., Bob Bernstein and Alison Minet Adams for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, Kristen Kinnaird Chenelia and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction^[1]

Defendant Kujtim Blakaj attended a friends birthday party, where he drank heavily, ingested LSD, and sexually assaulted four women guests, including the honoree.

A jury convicted defendant of nine sexual offenses (six felonies and three misdemeanors): counts 1, 2, 3, 4 and 6 for sexual penetration ( 289, subds. (a)(1) and (e)); count 5 for rape ( 261, subd. (a)(4)); counts 7, 8, and 9 for sexual battery ( 243.4, subd. (e)(1).) Counts 3 and 6 for forcible sexual penetration were committed against more than one victim. ( 289, subd. (a)(1), and 667.61, subd. (e).)

The court sentenced defendant to a prison term of 30 years to life.

On appeal, defendant challenges his convictions based on the sufficiency of the evidence, the application of section 667.61, and the legitimacy of his sentence. We reject his claims of error and affirm.

2. Factual and Procedural Background

On the evening of July 30, 2005, S.F. celebrated her twenty-fifth birthday by inviting about 25 friends and family members for a luau dinner. Defendant had been invited by S.F.s roommate, Tobias. Throughout the evening and continuing to the next morning, defendant prowled around the party, subjecting four different women to various sexual offenses, as described more fully below.

a. S.F. (Counts 1, 2, 3, and 4)

S.F. was drinking White Russians,^[2]starting about 6:00 p.m. By 9:00 p.m., she had had four drinks and felt intoxicated. Defendant was drinking beer but was not visibly intoxicated.

After S.F.s fifth drink at 11:00 p.m., she felt disoriented and vomited. She could not stand and her husband carried her inside the house with defendant helping by holding her legs. Her husband laid her down on the floor of one of the bedrooms. S.F. fell asleep but heard the bedroom door open. Defendant came in and lay down beside her in a spooning position. He touched her genital area over her bathing suit and the grass skirt she was wearing. S.F. tried to squirm away. When her sister entered the room to check on S.F., defendant left. S.F. did not want to be touched and did not consent to being touched. S.F. crawled out of the bedroom into the kitchen where her husband discovered her. Her husband carried her into the master bedroom.

S.F. fell asleep again and awoke to find defendant lying on top of her with one hand inside her bathing suit, his fingers penetrating her labia and vagina. She sat up and announced she had to find her husband. Defendant left and shut the door.

Defendant returned a third time and hovered over her before leaving again. The fourth and last time, she awoke as defendant touched her in the genital area, penetrating the labia and vagina. As she tried to leave, defendant tugged at her bathing suit bottoms, pulling her back. She left the room and found her husband at approximately 2:30 a.m. She complained to him defendant would not leave her alone.

At 4:30 a.m. S.F. awoke because L.W. was screaming in the backyard that defendant had raped her. S.F. called 911 and took L.W. to the hospital.

b. L.W. (Counts 5 and 6)

L.W. came from Torrance and planned to stay overnight. She had met defendant once a few weeks before. L.W. drank about six beers during the evening. At 2:00 a.m., defendant approached L.W. when she was getting a change of clothes from her truck. He suggested she could sleep naked and followed her back into the house. L.W. changed in the bathroom and went to sleep in one of the bedrooms in the company of a male friend, Tristan.

She woke up with someone pressing against her back and holding her shoulders. She also felt like something [a penis] was in [her] vagina. She pushed the person away, believing it was Tristan. She was shocked and hoped he would go back to sleep. But sometime later, a person approached her again and put his hands on her neck. He said, Its okay, I love you. She realized the person was defendant. He shoved his fingers into her vagina. She tried to push him off. She tried to hide under the sleeping bag and wake up Tristan. She also saw defendant pull up his pants, take out a flashlight, and shine it on them.

L.W. kept pretending to sleep. Defendant renewed his approaches by spooning against her and putting his hands on her waist. At that point, L.W. jumped up screaming, What the fuck are you doing? Get the fuck out of the room. He protested that he did not understand why she was yelling at him. Tristan awoke and defendant tried to apologize. Tristan and L.W. woke up some of their friends while defendant continued to say he was sorry. Defendant left when the police were called.

c. G.W. (Counts 7 and 8)

When G.W. was swimming after dinner, defendant approached her and commented that she was very beautiful. When defendant swam up to G.W. and straddled one of her legs, she struggled to push him away as he tried to grope her genitals and breast. She could feel his erect penis against her leg.

d. F.S. (Count 9)

F.S. attended the party and had two drinks. She and her husband met defendant who did not seem intoxicated. F.S. fell asleep on the living room couch, wearing Capri pants and a T-shirt. She was awakened by someone touching her. When she realized it was not her husband but defendant, she pushed his hand away and fell back asleep. Defendant touched her a second time on her left breast. Again she pushed him away and hit him. The next thing she remembered was a woman screaming and running through the house at close to dawn. Defendant followed the woman, asking what he had done.

e. Other Prosecution Testimony

Tristan testified that he gave two hits of paper LSD to defendant. Later, he was sleeping in a bedroom with L.W. He was confused when she woke him up and defendant was leaving the room. L.W. was upset and described how a man had tried to insert his penis in her vagina.

S.F.s roommate, Tobias, testified he saw defendant wrestling with a woman in the pool. During one conversation, defendant told Tobias, I am not to be trusted. [] . . . [] . . . I would fuck your mother. When Tristan and L.W. woke Tobias up, L.W. told him defendant had held her down and forced his fingers into her vagina. Then S.F. told how someone had been touching her. Tobias confronted defendant who said he did not know what had happened, But if I did what they are saying I did, something really bad just happened. Tobias told defendant to leave.

After the party, defendant went to his parents home in New York on August 5, 2005. On August 13, he went to Paris, returning to Los Angeles on January 10, 2006, when he was arrested. In email correspondence, defendant wrote about legal problems, being on the run, and his fear of being arrested and going to jail.

f. Defense Evidence

One witness, defendants high school friend, testified defendant was very drunk by 9:00 p.m. He did not believe defendant was capable of the alleged misconduct. Another friend testified defendant never behaved inappropriately toward her. Defendants former girlfriend testified he behaved well toward her during and after their relationship.

Defendant testified that he knew many of the people at the party and he brought flowers for S.F. At the beginning of the party, he joined in shotgunning beers, drinking four in 15 minutes. He continued drinking and took one tab of acid. He does not remember any interaction with G.W. in the pool. He had an animated conversation with L.W. He did not remember any misconduct with any of the women. He did not remember taking a second tab of LSD. He remembered wandering around in an altered state and then sleeping in one of the bedrooms and dreaming about having intimate contact with a woman before he awoke to screaming and people running around. He was confused and left when Tobias told him to go. He made arrangements to leave California and flew to New York and then Paris. He returned to face charges.

A forensic psychologist testified that defendant did not meet the criteria for being a sex offender. She believed the alcohol had caused him to suffer partial memory loss.

3. New Trial Motion/Sufficiency of Evidence

Defendant contends the trial court erred by denying his new trial motion because there was insufficient evidence of force and other elements of his offenses and because the court did not instruct the jury properly about force and misdemeanor assault.

The standard of review is well-established: On a motion for a new trial, a trial court must review the evidence independently, considering the proper weight to be afforded to the evidence and then deciding whether there is sufficient credible evidence to support the verdict. (People v. Davis (1995) 10 Cal.4th 463, 524.) A trial courts ruling on a motion for new trial is so completely within that courts discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion. [Citation.] (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.) (People v. Lewis (2001) 26 Cal.4th 334, 364.)

Defendants convictions on counts 3 and 6 for forcible sexual penetration against S.F. and L.W. ( 289, subd. (a)(1)) required a showing of force, meaning enough physical force to overcome another persons will. (People v. Cochran (2002) 103 Cal.App.4th 8, 13; People v. Griffin (2004) 33 Cal.4th 1015, 1026-1029.) In In re Asencio (2008) 166 Cal.App.4th 1195, 1204-1205, the court stated: We must decide whether sexual penetration committed by force . . . requires physical force substantially greater than that amount of force inherent in the act of sexual penetration. [] . . . [] . . . We conclude that forcible sexual penetration within the meaning of section 289, subdivision (a)(1) is proven when a jury finds beyond a reasonable doubt that the defendant accomplished an act of sexual penetration by the use of force sufficient to overcome the victim will.

As in Asencio, we must determine whether, on the record as a whole, any rational trier of fact could find defendant guilty beyond a reasonable doubt: We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (In re Asencio, supra, 166 Cal.App.4th at p. 1205.)

The evidence in this case is sufficient to support the jurys determination that defendant used force, as that term is commonly used and understood, to accomplish forcible sexual penetration against the will of S.F. and L.W. Defendants persistent actions against S.F. when she was significantly impaired and in spite of her resistance demonstrate the requisite force. Similarly, defendants repeated conduct toward L.W., grabbing her neck and pressing himself against her constituted force. A reasonable jury could find on this evidence that the sexual penetrations were committed against the victims will and that defendant used sufficient force to overcome their will.

We reject any assertion that there must be a showing of force to support defendants convictions on counts 1, 2, and 4 against S.F. for attempted penetration of an intoxicated person. ( 289, subd. (e).) Force is not an element of those offenses. Without any authority, defendant generally contends the victim could not be too intoxicated to consent while still being able to describe what happened to her. We disagree that simple reason supports this argument. Instead, the jury could evaluate the credibility of the victims testimony.

Similarly, force is also not an element of count 5 against L.W. for rape of an unconscious person. ( 261, subd. (a)(4).) Counts 7, 8, and 9 involve sexual battery against F.S. and G.W. ( 243.4, subd. (e)(1)) but, again, do not involve force.

Finally, we do not find instructional error. Either the trial court misspoke in giving CALCRIM No. 915 or the reporter erred in the transcription, changing the phrase defendant did that act willfully to defendant did not act willfully. But the jury received a correct copy of the written instruction, curing any misunderstanding. (People v. Wilson (2008) 44 Cal.4th 758, 803, citing People v. Osband (1996) 13 Cal.4th 622, 717 and People v. Crittenden (1994) 9 Cal.4th 83, 138.) There was no danger of conflicting instructions when the jury was instructed about two different crimes: sexual battery with restraint (CALCRIM No. 935) and sexual penetration by force (CALCRIM No. 1045.)

4. Section 667.61

The One Strike law Section 667.61 mandates indeterminate sentences of 15 or 25 years to life for specified sex offenses that are committed under one or more aggravating circumstances, such as when the perpetrator . . . sexually victimizes more than one person, . . . (People v. Palmore (2000) 79 Cal.App.4th 1290, 1295, 667.61, subd. (e)(1)-(7).) The purpose of the One Strike law is to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction, where the nature or method of the sex offense place[d] the victim in a position of elevated vulnerability. [Citation.] (People v. Palmore, supra, 79 Cal.App.4th at p. 1296, italics in Palmore.) (People v. Alvarado (2001) 87 Cal.App.4th 178, 186.)

On counts 3 and 6, the court sentenced defendant to two consecutive sentences of 15 years to life as provided by section 667.61, as in effect in 2005:

(b) Except as provided in subdivision (a), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j).

(c) This section shall apply to any of the following offenses: [] . . . []

(5) A violation of subdivision (a) of Section 289. [] . . . []

(e) The following circumstances shall apply to the offenses specified in subdivision (c): [] . . . []

(5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim. [] . . . []

(f) If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law. Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e).

Subdivision (f) dictates the court give defendant consecutive sentences. (People v. Jackson (1998) 66 Cal.App.4th 182.) Defendant asserts multiple challenges to his sentence, all of which are fundamentally based on his contention that his conduct did not justify so harsh a sentence as 30 years to life.

Defendants first claim is that his conduct was not within the proscribed conduct contemplated by the Legislature when enacting section 667.61 in 1994 because the definition of force was changed in 2004 by People v. Griffin, supra, 33 Cal.4th at pp. 1026-1029. The Legislature, however, presumably knew about Griffin but it did not amend section 667.61 until 2006, at which point it made no relevant changes to the statute. (Stats. 2006, ch. 337, 33 (SB 1128); Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145, citing Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734.) Therefore, we do not agree that Griffin changed section 667.61, making it inapplicable to defendants conduct.

Defendants second claim is the trial court should have dismissed the enhancement charged under section 667.61. Defendants position contradicts the California Supreme Court: The law expressly divests trial courts of authority to avoid these severe sentences: it provides that courts are barred from exercising their traditional discretion to strike any of the triggering circumstances specified in the One Strike law. (People v. Hammer (2003) 30 Cal.4th 756, 761-762, citing 667.61, subd. (f).)

Defendant next asserts that his sentence violated equal protection because section 667.61 treats forcible sexual penetration ( 289, subd.(a)) of multiple victims more harshly than sexual penetration of multiple victims who cannot consent. ( 289, subds. (b), (d), & (e).) The former offense receives a life sentence, the latter only eight years. Defendants argument fails in view of the meaningful distinction which exists between forcible and nonforcible penetration.

Equal protection means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness. (People v. Romo (1975) 14 Cal.3d 189, 196.) In determining whether such a deprivation has occurred, the courts ultimate task is to examine the validity of the underlying purpose, and the extent to which the disputed statutory classification promotes such purpose. [Citations.]

As a foundational matter, however, all meritorious equal protection claims require a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (In re Eric J. (1979) 25 Cal.3d 522, 530, original italics.) In other words, neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution [citations] precludes classification by the Legislature or requires uniform operation of the law [for] persons who are different . . . with respect to the legitimate purpose of the law. [Citations.] (People v. Wutzke (2002) 28 Cal.4th 923, 943-944.)

Equal protection does not mean identical treatment. (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1216.) Persons convicted of different, albeit similar, crimes do not qualify for equal protection. (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565; People v. Kilborn (1996) 41 Cal.App.4th 1325, 1330.)

Sexual penetration by force is a different crime than sexual penetration without force even if both require lack of consent by the victim. The Legislature could reasonably find the former to be a more serious offense under the One Strike law: It is the prerogative, indeed the duty, of the Legislature to recognize degrees of culpability when drafting a Penal Code. [Citation.] (People v. Mitchell (1994) 30 Cal.App.4th 783, 796, citing People v. Peace (1980) 107 Cal.App.3d 996, 1004.) There is no equal protection violation in sentencing defendant more severely due to the added element of force necessary to complete his crimes.

Defendants fourth claim is that his sentence constitutes cruel and unusual punishment because there is no evidence he used force. Instead, he characterizes the record as showing that, under the influence of LSD and alcohol, he was simply overcome with feelings of sexual love for all women. The tragedy is that his intoxication prevented him from realizing his attentions were not welcome, . . . We cannot endorse defendants view of his behavior as a benign misunderstanding.

Punishment is cruel and unusual when the penalty is grossly disproportionate with the crime so that it shocks the conscience and offends fundamental notions of human dignity. (Lockyer v. Andrade (2003) 538 U.S. 63, 72; In re Lynch (1972) 8 Cal.3d 410, 424; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) Lynch identified three prongs for the relevant analysis: In examining whether a sentence is cruel and unusual under California law, this court: (1) examines the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society [citation]; (2) compares the challenged punishment with punishments prescribed for more serious offenses in the same jurisdiction; and (3) compares the challenged punishment with punishments prescribed for the same offense in other jurisdictions [citation]. (People v. Cline (1998) 60 Cal.App.4th 1327, 1337.)

Here defendant has relied only on the first prong but even that does not favor his argument. Defendant spent hours serially preying on the four victims, taking advantage of the circumstances and their vulnerability. He committed rape and two other counts of forcible penetration. Without the application of section 667.61, he might have received a lesser sentence but he was not eligible for probation. ( 1203.065, subd. (a).) Nor was he entitled to a lesser sentence.

Much more, or equally, severe sentences have withstood a claim of cruel and unusual punishment. (Harmelin v. Michigan (1991) 501 U.S. 957 [life without parole for possession of a large quantity of drugs]; Ewing v. California (2003) 538 U.S. 11 [sentence of 25 years to life for the theft of three golf clubs]; Lockyer v. Andrade, supra, 538 U.S. 63 [50 years (two consecutive terms of 25 years) to life for two thefts of videotapes.]) Compared to those sentences, defendants sentence is not constitutionally infirm.

Defendants final argument regarding section 667.61 is that it deprives the trial court of its traditional sentencing discretion to impose consecutive or concurrent sentences. Defendant cites Oregon v. Ice (2009) __ U.S. __ [129 S.Ct. 711], in which the Supreme Court held only that the determination to impose a consecutive, rather than a concurrent term, need not be based on findings made by a jury.

California courts have long recognized the legislative authority to restrict a trial courts sentencing discretion to strike enhancements under section 1385: [C]lear legislative intent to abrogate trial courts authority to strike under section 1385 exists where there is a statutory scheme designed to effect a particular result and where the invocation of section 1385 would nullify that result. (People v. Luckett (1996) 48 Cal.App.4th 1214, 1219.) As identified by the People, there have been many statutes expressly restricting discretion under section 1385 in the same manner as section 667.61.

5. Disposition

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/King

J.

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^[1] All statutory references are to the Penal Code.

^[2] A White Russian is a sweet cocktail made from vodka, coffee liqueur (e.g., Kahla or Tia Maria), and cream served in an old-fashioned glass with ice.