P. v. Saravia

Filed 6/14/06 P. v. Saravia CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Luis Saravia of several sexual offenses (those relevant on appeal are kidnapping for the purpose of rape or sodomy, forcible rape with a kidnapping enhancement, and forcible sodomy with a kidnapping enhancement) and simple kidnapping. (Pen. Code, § 207, subd. (a), § 209, subd. (b)(1), § 261, subd. (a)(2), § 286, subd. (c)(2), § 667.61, subd. (c)(1), (c)(6), (d)(2), (e)(1).)^[1] The trial court sustained recidivist allegations and sentenced him to a determinate prison term and a consecutive indeterminate life term of at least 25 years.

On appeal, the defendant argues that there is insufficient evidence to support various elements of the kidnapping offenses and enhancements, that he cannot be convicted of both simple kidnapping and aggravated kidnapping (a point that the People concede), and that the trial court impermissibly relied in its sentencing decisions on facts not embraced in the verdicts (a point that he concedes is raised only to allow federal review of the issue, as it is without merit under California law (People v. Black (2005) 35 Cal.4th 1238)). We shall affirm as modified.

Facts

The victim's home was the middle of three houses that shared a private lane running south from Lincoln Avenue in Carmichael. Her house was about 300 yards from the street. (A house at the street end of the lane had a driveway directly on Lincoln Avenue.) The Blake family had owned the house farthest from the street, but was in the process of moving in July 2003. The private lane was not heavily trafficked.

The victim's substitute caretaker on the day of the offenses (her second cousin), her regular caretaker (the girlfriend of her uncle), her mother, and a psychologist who evaluated her at the request of the prosecutor, all testified that the victim (who was born in February 1984) was developmentally disabled with cortical blindness, cerebral palsy, and microcephaly. She had the mental acuity of a child four to six years old, was incapable of making adult decisions or living independently, and was hyperactive with a limited short-term memory and attention span. She tested at the very bottom on all measures of intelligence. Her vision was akin to having a hundred layers of plastic wrap over her eyes, leaving her able to see only shades and shapes from very close up. Consequently, she could recognize people only by their voice and smell. She had slurred speech and her right side was weak, which resulted in a limp. In the anecdotes of her relatives, she did not understand the difference between hot and cold or the danger presented in walking into the street, could not carry on a conversation for any length of time, and did not understand the distinctions between types of money or food. She could mostly dress herself with some assistance, and could perform simple tasks such as turning on the sprinklers, raking leaves, sweeping, taking the trash containers to the street, making her bed, and attending a special-needs exercise class. She was not fully able to tend to her menstrual hygiene. Her mother believed that sexual activity for her would be inappropriate, so relatives had never discussed sexual relations with her beyond emphasizing that others should not touch certain areas of her body; and she never previously manifested any sexual interest. In the psychologist's opinion, anyone should have been able to discern the victim's developmental disability.

The prosecutor also called the victim, not as a witness but to demonstrate her capabilities. In response to questioning, she was unable to give her full name, properly give her birthday or her age, and said that a blue pen was the same color as a red pen (the color of which she had previously described correctly).

On July 30, 2003, the victim was at the end of her menstrual cycle. She left her house to take the trash containers to the street. She was gone for about 20 minutes, which was not an unusual amount of time for her to do this task. Alerted by the victim's complaints of pain in the general region of her crotch, her relatives determined that she was the victim of a sexual assault at the Blake house and summoned the police. The Blakes provided a copy of their surveillance video to the police, which recorded the views of four outdoor cameras in a continuous rotation of a few seconds each.

A tall wooden fence separated the Blake property from the victim's yard. A wooden fence also ran along the Blake property where it bordered on the private lane, ending at their driveway. There was a grassy yard at the top of the Blake driveway beyond a three-foot bamboo fence that made a corner with a wrought-iron fence on the north side of the driveway and a tall wooden fence on the south side of the driveway on the property line. The grassy yard went about 20 feet back from the bamboo fence, and was about 30 feet wide.

In the videotape (the full frame of which was visible only on a compact disc prepared from the videotape), the defendant's truck arrives at 11:22 (according to the tape's time stamp). The defendant backs the truck out of view, and walks back along the wrought-iron fence until he reaches the three-foot bamboo fence separating the driveway from the small yard at 11:23:08; he stares into it before walking away. Five minutes later, the defendant appears at the right end of one camera view, and then in the next with the victim following him along the wrought-iron fence. At 11:28:42, they reach the low bamboo fence, where the defendant pulls the victim (who is nearly his size) over the fence by her arms after she grabs onto him. At 11:31, the victim is running around on the camera side of the wrought-iron fence. At 11:38, the defendant steps back over the bamboo fence, and by the next rotation is well along the driveway, looking back as the victim now climbs over the bamboo fence on her own. He continues walking quickly away. The victim follows him briefly, then stops and stares off in the direction where he went.

The Blakes had requested the disconnection of their cable service, as they were moving. The defendant was a technician who worked for a Comcast subcontractor that assigned the service call at the Blake home to him on July 30, 2003. He never performed the job.

Forensic investigators retrieved sperm from the victim's rectum, external genitalia, menstrual pad, and panties. The genetic profile of the sperm from each location matched the defendant's, an outcome with a probability in the trillions regardless of the ethnic subpopulation.

Discussion

I

The defendant asserts the evidence is insufficient with respect to several elements of kidnapping in its various roles in the present case.^[2] He contends the victim's asportation was not a function of force or fear, was merely incidental to underlying offenses, and did not substantially increase the risk of harm to the victim.

A

As is apparent from the evidence at trial, the victim was incapable of exercising informed consent. The concept of consent is inexorably commingled with the element of force in kidnapping. (In re Michele D. (2002) 29 Cal.4th 600, 609 (Michele D.).)

Michele D., drawing from People v. Oliver (1961) 55 Cal.2d 761 (in which a defendant also carried away a toddler), concluded that under such circumstances the absence of any manifestation of resistance in a youth or in a person with a mental incapacity does not render the asportation consensual. Rather, the element of force is present in the physical force necessary to accomplish a substantial asportation if the defendant harbors an illicit purpose at the time. (29 Cal.4th at pp. 606-610; § 207, subd. (e) [which codifies holding of Michele D. as being a statement of â€