P. v. Hendricks



















Filed 2/5/13 P. v. Hendricks CA2/7

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
SEVEN




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THE PEOPLE, Plaintiff and Respondent, v. GEROME HENDRICKS, Defendant and Appellant.

B238049 (Los Angeles County Super. Ct. No. MA040987)

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Kathleen
Blanchard, Judge. Affirmed.

Thien Huong Tran, under appointment
by the Court of Appeal, for Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Blythe Leszkay
and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________





Jerome
Hendricks was previously convicted of spousal
rape (Pen. Code,href="#_ftn1"
name="_ftnref1" title="">[1]> § 262, subd. (a)(1)).
In an earlier appeal, this court concluded that the trial court erred
when it ordered him to register as a sex offender under the mandatory
provisions of section 290. We remanded the
matter to permit the trial court to assess whether Hendricks should be
subjected to sex offender registration under section 290.006. The trial court ordered him to register as a
sex offender under this provision, and Hendricks appeals. He asserts that the court’s order that he
register as a sex offender, with its attendant residency restriction, violates
his Sixth Amendment right to a jury
trial because the judge, not a jury, made the factual findings upon which the
registration order was based. We affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

Hendricks pleaded no contest to spousal rape. All facts in this portion of this opinion
pertaining to the offense are taken from the transcript of the href="http://www.mcmillanlaw.com/">preliminary hearing; Hendricks and his
counsel stipulated that the preliminary hearing transcript afforded a factual
basis for the plea.href="#_ftn2"
name="_ftnref2" title="">[2]> As of January 13, 2008, T.B. had been married to Hendricks for eight
years. Although they were married, T.B.
did not permit Hendricks to sleep in her house because he had sexually
mistreated her in the past, forcing her to engage in anal intercourse without
her consent.

At approximately 3:00 in the morning on January
13, Hendricks drove T.B. to the hospital because she was sick with the
flu. After her hospital visit, the two
walked back to Hendricks’ big-rig truck.
T.B. lay down in the back of the big rig because she was vomiting.

Hendricks joined T.B. in the back of the truck, lying
down next to her. In a demanding tone,
he told her to turn over. T.B. knew
Hendricks wanted to engage in anal intercourse, and she did not want it. She said, “Please don’t do this.” She told him she did not want to have anal
intercourse. Hendricks responded
angrily, “Shut the fuck up and turn over.”
T.B. was afraid and felt she had no choice; she turned over.

Hendricks told T.B. to take her pants down. T.B. pleaded, “Please don’t do this
again. I don’t want to do this. I’m sick.
I have diarrhea, and I’m vomiting.”
Hendricks pulled down his pants and underwear, exposing his penis.

T.B. said to Hendricks, “Gerome, if you are going to
do this, do you have any Vaseline?”
Hendricks grabbed some Vaseline and said, “Don’t move. If you move, I’m going to hurt you.” T.B. began to cry. Hendricks told her to “[s]hut the fuck up”
and spread Vaseline in her anal area.

Hendricks forced his penis into T.B.’s anus. T.B. cried and said, “Stop, it hurts, and I
don’t feel good.” Hendricks told her,
“Shut the fuck up. You talk too
much.” T.B. reported that Hendricks
appeared to be “enjoying it.”

Hendricks removed his penis from T.B.’s anus and
placed it in her vagina. T.B. did not
consent to this either. She said,
“Please stop. It hurts. I don’t want to do this. I’m your wife. How could you do me like this?”

T.B. had been on her back while Hendricks penetrated
her vagina. He then instructed T.B. to
turn over again. He inserted his penis
into her anus again. According to T.B.,
“he was enjoying what he was doing. He
was making noises, like I could tell he was enjoying it. It felt good, like ooh, aah. I mean, just the normal sexual noises.”

T.B. was still crying and she was in pain. She told him to stop. She asked if she could use the restroom because
she was vomiting and having diarrhea. He
gave her a bag from the floor, which she placed beneath her buttocks.

At some point Hendricks permitted T.B. to sit up. She told Hendricks that he was “dealing with
a demonic spirit.” He told her, “Shut
the fuck up,” and “How are you going to tell me I’m dealing with a demonic
spirit[?]” and then ordered her to turn over again. Hendricks then inserted a water bottle into
her anus. T.B. was in pain. She told him, “I can’t take it anymore. Please let me go.”

Hendricks finally stopped. T.B. asked him to take her home so that she
could clean herself. He accused her of
planning to call the police, but eventually he permitted her to put her clothes
on and he drove her home. T.B. was
experiencing pain in her anal area.

When she got home, T.B. drove to her mother’s
home. After she got there, diarrhea and
blood began running down her legs. She
went to the police station and was directed to go to the hospital. The subsequent medical examination revealed
cuts and tears in her vaginal and anal areas, as well as a hickey on her neck.

Hendricks was H.I.V. positive. He did not use a condom.

Hendricks was charged with spousal rape, two counts of
sodomy by use of force (§ 286, subd. (c)(2)), sexual penetration by a
foreign object (§ 289, subd. (a)(1)), and corporal injury to a spouse
(§ 273.5, subd. (a)). He pleaded no
contest to spousal rape and was found guilty of that offense. The remaining counts were dismissed.

The court sentenced Hendricks to four years in href="http://www.fearnotlaw.com/">state prison and ordered him to register
as a sex offender under section 290.
Hendricks appealed, and this court concluded that the trial court had
erred when it ordered him to register as a sex offender under section 290. (People
v. Hendricks (Nov. 10, 2010, B218791) [nonpub. opn.].) We remanded the matter to permit the trial
court to assess whether Hendricks should be subjected to sex offender
registration under section 290.006. (>Id. at p. 6.)

On remand, the trial court stated that at the original
sentencing hearing it should have “ma[d]e the record I’m making now, which is
that I absolutely believe, without a shadow of a doubt, that this crime was
committed for the purpose of sexual gratification. The defendant made that very clear in both
his actions and his words to the victim.
Therefore, I am ordering the registration under Penal Code section
290.006.” The court added, “Inherent in
the fact that I have the discretion [to order registration], it also means that
I have the discretion not to. I can’t
imagine an individual that should register any more than Mr. Hendricks. What he put this woman through is exactly why
he needs to be on the registry, needs to be—have law enforcement know where he
is, make sure that he’s living at an appropriate place when he does get out of
state prison because he poses a huge danger to society at large and this victim
also, in particular.”

Hendricks appeals the sex offender registration
requirement.

DISCUSSION

Section 290 provides for mandatory sex offender
registration for those convicted of enumerated sexual offenses. Section 290.006 permits the trial court to
order sex offender registration on a discretionary basis for those who have
committed offenses other than those that trigger mandatory registration under
section 290. Discretionary registration
may be ordered “if the court finds at the time of conviction or sentencing that
the person committed the offense as a result of sexual compulsion or for
purposes of sexual gratification.”
(§ 290.006.) The trial court
made such a finding here, and ordered that Hendricks be subject to sex offender
registration under section 290.006.

All registered sex offenders in California are barred
from residing within 2,000 feet of a school or park where children gather. (§ 3003.5, subd. (b).) Hendricks contends that being subjected to
this residency restriction constitutes punishment that increases the penalty
for his spousal rape offense beyond the maximum punishment permitted by statute,
and that he could not constitutionally be subjected to sex offender
registration without a jury finding the facts supporting registration to be
true beyond a reasonable doubt. (See,
e.g., Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).) The question of
whether this residency restriction is an increase in penalty for the purposes
of the Sixth Amendment and cases interpreting the right to a jury trial is
presently pending before the California Supreme Court. (People
v. Mosley, S187965, review granted Jan. 26, 2011.)

Assuming for the sake of argument that Hendricks is
correct that the trial court erred in requiring him to register as a sex
offender without having a jury find beyond a reasonable doubt the predicate
facts required to impose a registration requirement under section 290.006, we
determine whether the failure to submit the factual question of whether the
offense was committed as a result of sexual compulsion or for purposes of
sexual gratification (§ 290.006) was prejudicial. Apprendi
error is not reversible per se but is reviewed under the harmless error
standard set forth in Chapman v.
California (1967) 386 U.S. 18. (>People v. Sandoval (2007) 41 Cal.4th
825, 838.) We therefore decide whether
we are convinced beyond a reasonable doubt that a jury would have determined
that the offense was committed as a result of sexual compulsion or for purposes
of sexual gratification. (See >id. at pp. 838-839.)

We have no difficulty in concluding that under the
circumstances presented by this case, a jury would have found beyond a
reasonable doubt that the spousal rape was committed for the purpose of sexual
gratification. According to the
probation report, which Hendricks stipulated could be relied upon at
sentencing, Hendricks told T.B., “I want that ass,” and “I want that pussy!”
prior to forcing his penis into her anus and vagina. When she protested, he told her that “other
women love what he does to them.” During
the sexual assault, T.B. testified, Hendricks “was enjoying what he was doing. He was making noises, like I could tell he
was enjoying it. It felt good, like ooh,
aah. I mean, just the normal sexual
noises.” Hendricks moaned while he
penetrated her. There is no doubt that a
jury faced with this evidence would have determined Hendricks committed spousal
rape for purposes of sexual gratification.
Accordingly, even if the Sixth Amendment is interpreted to require that
this factual determination be made by a jury, the court’s determination that
Hendricks committed the crime for sexual gratification did not prejudice
Hendricks.

DISPOSITION

The judgment is affirmed.





ZELON,
J.

We
concur:





WOODS, Acting P. J. JACKSON,
J.