P.
v. Kelly
Filed
9/13/13 P. v. Kelly
CA4/3
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JEROME EUGENE KELLY,
Defendant and Appellant.
G046870
(Super. Ct. No. 04NF0689)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, William L. Evans, Judge. (Retired judge of Orange Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed as modified.
Martha L. McGill, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, A. Natasha Cortina and Sean M. Rodriguez,
Deputy Attorneys General, for Plaintiff and Respondent.
Jerome Eugene Kelly
appeals from a judgment after a jury convicted him of
force, forcible oral copulation, kidnapping, and sodomy by force, and found
true movement of the victim and multiple victim enhancements. Kelly argues the trial court erred in
admitting evidence, instructing the jury, and sentencing him. We agree Kelly’s sentencing claim has
merit. None of his other contentions
have merit, and we affirm the judgment as modified.
FACTS
One June evening in 2003
about dusk, Michelle, who was living in a homeless shelter because she was a
victim of domestic violence, arrived
at a bus stop after ingesting methamphetamine at a friend’s house. She was “lightheaded,
paranoid,
. . . [and] nervous[,]†and wanted to go to the hospital but was afraid she
would be arrested. Michelle sat at the
bus stop sans shoes for about two hours when Kelly sat down and started talking
to her. She told Kelly that she was not
feeling well, and he offered to take her to the hospital and get her
shoes. She felt so bad she accepted his
offer and got into his car.
When Kelly drove past
the hospital, Michelle asked him where he was going. Kelly replied he wanted to get her some shoes
before he took her to the hospital. Kelly
drove to a motel, said he was going to get some shoes, and got out of the
car. She tried to get out of the car, but
the doors were locked. After talking to
a man, Kelly returned to the car without any shoes.
Kelly drove towards the
hospital but did not stop and drove in circles.
During the drive, Kelly asked Michelle what her drug of choice was. She denied using drugs. Kelly said he would take Michelle to his
house to get her shoes and take her to the hospital. Kelly got onto the 91 freeway. Michelle asked him to take her to her
sister’s house and to be let out of the car.
Kelly grabbed Michelle’s
hand and tried to put it on his penis, but she pulled her hand away. He asked her if she was going to work for him
as a prostitute. Kelly got off the
freeway and drove to a park where he stopped the car. Kelly said Michelle could get out of the car,
and he opened the passenger side door for her.
When she got out of the car, he hit her on the head, and she fell to the
ground. He picked her up and
apologetically helped her back into the car, drove around, and returned to the
park. Kelly told her that he was going
to get her shoes and to follow him.
Kelly held Michelle’s
elbow as he led her through the park to his house. Michelle saw a man practicing martial arts
with a stick. Kelly told Michelle to be
quiet or he would kill her and the man. They
walked for about 10 minutes to a dark and secluded ravine in the park. Kelly, who was wearing gloves, grabbed
Michelle by the neck and told her to take off her pants. She started to comply with his demand but then
refused. Kelly threatened to kill her, but
she still refused. He threw her to the
ground, pulled her pants down, and told her to spread her legs. Michelle refused and rolled into the fetal
position. Kelly had anal intercourse
with Michelle and ejaculated inside and outside her body. Kelly said he was going to kill her and
started choking her. A dog started
barking and someone turned on lights at a nearby home, which scared Kelly and
he fled.
Michelle went to a few
houses and knocked on the doors but no one answered. She went to the parking lot and saw a man in
a white Jeep. Michelle told him a man
had raped her, but the man said he did not want to get involved and drove
away. She saw Kelly drive away. She eventually stopped two police officers
and told them what had happened. She was
hysterical and disheveled. They drove
around and looked for Kelly but could not find him. The officers took Michelle to a rape center
where she had a sexual assault examination and was interviewed.
Michelle said her
assailant was an African-American male, about 20 to 25 years old, 170 pounds,
and clean shaven. She said he wore a
black shirt, tan shoes, and gloves. She
emotionally and candidly described what had transpired. There were no injuries or evidence of anal
intercourse.
One evening seven weeks
later, Elaina left her boyfriend’s house.
As she walked past a 7-Eleven, Kelly shouted at her from his car. Elaina kept walking, and Kelly drove beside
her. He asked her name, age, and
nationality. She told him her age and
nationality but gave him a false name. Kelly
told her to get into his car, but she refused.
She saw three Hispanic men who appeared to be intoxicated but did not
ask them for help because she thought they would assault her. Elaina walked faster, and Kelly told her to
get into the car or he would shoot her. Kelly
got out of the car and told Elaina to get in the car. She saw an item in his waistband and thought
it was a gun. Kelly tapped his finger
against the object, and it sounded hard.
Kelly pushed her into
the car. Elaina cried and told Kelly to
let her out. Kelly told her to “shut the
fuck up.†She told him that she was a
diabetic, and he said he would take care of her. Kelly drove onto the 91 freeway. Elaina begged him to let her go and said she
needed insulin and food. Kelly remained
on the freeway for 10 minutes, exited the freeway, and stopped at a dark and
secluded park.
Kelly and Elaina sat in
the car for about 10 minutes listening to music. Elaina noticed a tattoo on Kelly’s right arm
that says, “respect.â€
name="_ftnref1" title="">[1] Elaina did not try to flee because she
thought Kelly had a gun. Kelly told her
that she was pretty and he had never had sexual intercourse with a woman of her
nationality before.
Kelly told Elaina to get
out of the car and he led her to the top of a hill in the park. She repeatedly asked him to let her go, but
he refused. Kelly put his arm around her
and tried to kiss her, but she pushed him away.
Kelly hit her on the mouth with his fist, and she fell to the ground
face down. Kelly removed her pants and
underwear and tried to have intercourse with her. He also touched her vagina with his
finger. As Elaina was on her hands and
knees, Kelly had anal intercourse with her for two to three minutes without a condom
and without ejaculating. Kelly stopped,
and told her to pull up her pants and immediately perform oral sex on him. Elaina complied because she did not want to
die. She performed oral sex on him until
he ejaculated in her mouth. Kelly told
her to swallow his ejaculate, but she spit it out and vomited. Elaina offered to give Kelly $200 that she
had at her parents’ house if he let her go.
Kelly walked to a nearby fence and smoked a cigarette. Elaina asked him to let her go. Kelly told her to stay where she was, and he
left. After he left, Elaina awkwardly and
painfully walked away.
Elaina had the same
misfortune as Michelle when she asked a man in a truck to help her. A woman eventually stopped and drove Elaina to
a gas station. Elaina went into a
7-Eleven and told the cashier what had happened, but the cashier did not
believe her and would not let her use the telephone. A married couple finally helped Elaina
contact the police, who took her to the hospital for a sexual assault examination.
Elaina told a forensic nurse
what had happened to her. Elaina had
injuries to her mouth and lips that were consistent with being punched and
engaging in oral copulation. She had
extensive lacerations in her vagina and anus.
In December 2003, Elaina
tearfully identified Kelly from a photographic lineup. In January 2004, Michelle also identified Kelly
from a photographic lineup.
In 2007, after an eight-count
information involving three victims was whittled down to six counts, the trial
judge, at a bench trial, found Kelly
guilty on five of the six remaining counts.
Kelly moved to relieve retained trial counsel, and the trial court
appointed the public defender to represent Kelly. Kelly filed a motion for new trial on the
grounds the prosecutor failed to disclose material evidence pursuant to
and he received ineffective assistance of counsel. In
April
2008, after hearing witnesses’ testimony and counsels’ argument, the trial
court granted the new trial motion based on the discovery violation. The public defender, alternate defender, and conflict
counsel all declared conflicts.
In December 2008, an
amended information charged Kelly with the following: Jane Doe No. 1-kidnapping to commit a sex
offense (Pen. Code, § 209,
subd.
(b)(1))
(count 1), sodomy by force (§ 286, subd. (c)(2)) (count 2), forcible oral
copulation (§ 288a, subd. (c)(2)) (count 3); and Jane Doe No. 2-kidnapping to commit
a sex offense (§ 209, subd. (b)(1)) (count 4), and sodomy by force (§ 286,
subd. (c)(2)) (count 5). As to counts 2,
3, and 5, the amended information alleged Kelly kidnapped the victim and the
movement substantially increased the risk of harm to the victim (§ 667.61,
subds. (a), (c) & (d)(2)), and he committed the offenses against more than
one victim
(§
667.61, subds. (b), (c)(6) & (e)(5)).
The amended information also alleged Kelly had one prior serious felony
(§ 667, subd. (a)(1)), and one prior strike conviction (§§ 667, subds. (d),
(e)(1), 1170.12, subds. (b), (c)(1)).
The trial court
eventually granted Kelly’s motion to represent himself. Ten months later, the trial court granted
Kelly’s request to revoke his in propria persona status and appointed
counsel. A jury trial finally commenced
in July 2011.
The prosecutor moved to
admit the following uncharged sexual offense evidence pursuant to Evidence Code
section 1108: (1) an April 1997
conviction for unlawful sexual intercourse with a minor (§ 261.5, subd.
(c)); and (2) an October 2003 conviction for unlawful sexual intercourse with a
minor (§ 261.5, subd. (c)). The prosecutor argued there is no
requirement the uncharged sexual offenses be sufficiently similar to the
charged offenses and the uncharged offenses were not too remote. Additionally, the prosecutor argued the
factors articulated in People v. Harris
(1998) 60 Cal.App.4th 727 (Harris),
did not require the evidence’s exclusion.
At an Evidence Code
section 402 hearing, Kelly objected to admission of the uncharged sexual
offense evidence. Defense counsel argued
the uncharged sexual offense must be similar to the charged sexual offense, and
in this case, the offenses were not similar.
Counsel also argued admission of the uncharged sexual offense would be
unduly prejudicial because the jury would be left to speculate the significance
of the dissimilar conduct.
The trial court stated
the uncharged sexual offense (statutory rape), and the charged sexual offenses
(forcible rape), were “quite distinct†and inquired of the prosecutor the
relevance of the uncharged sexual offense.
Relying on Evidence Code section 1108’s plain language, the prosecutor
argued the statute contemplates the admissibility of evidence that demonstrates
a propensity to commit unlawful sexual conduct and the Legislature included
statutory rape, section 261.5, in that statutory scheme. The prosecutor asserted Evidence Code section
1108 does not include a similarity requirement.
The prosecutor added the uncharged sexual offense was not unduly
prejudicial because it did not involve force.
The court and the prosecutor continued their discussion of the issue of
whether similarity is required. The
court took the matter under submission.
The next day, the trial
court explained that it had conducted the appropriate weighing analysis and
considered the differences between the uncharged sexual offenses and the
charged sexual offenses. The court ruled
the 2003 conviction was admissible pursuant to Evidence Code section 1108
because it demonstrates Kelly has a propensity “to commit illegal sexual
acts.†The court reasoned there is a
difference in elements between the uncharged sexual offense, section 261.5, and
the charged sexual offenses, particularly section 286, but “there is a
demonstration on [Kelly’s] part because of the similarity of those crimes for a
propensity to commit illegal sexual acts.â€
Relying on Evidence Code section 352, the court stated however the
prosecutor would only be permitted to introduce the 2003 conviction and not the
1997 conviction. After a brief discussion
concerning how the evidence would be presented to the jury, defense counsel
suggested a stipulation, which the prosecutor agreed to.
At trial, Michelle
testified that in November 2005 she pled guilty to lying under oath to receive
financial and welfare aid in the amount of $15,121.
The parties stipulated
Kelly’s DNA was found on sperm and non-sperm fractions of Michelle’s anal
area. The parties stipulated Kelly’s DNA
was found on a sperm fraction of Elaina’s internal rectal area. The parties also stipulated that in October
2003, Kelly was convicted of unlawful sexual intercourse with a minor that
occurred in July 2003. The trial court
stated: “Ladies and gentlemen, I once
again want to give you a limiting instruction.
This additional information you received with regard to an uncharged sex
offense that has just been read by stipulation that . . . Kelly has a prior
offense for unlawful sex with a minor, that’s to be limited in your use. [¶]
The law allows you to use it if you find it to be true to assist you in
making decisions. You cannot find him
guilty simply because he has a prior conviction of some other charge. It may provide you some evidence you can
choose to ignore; you don’t have to use it whatsoever. [¶]
I’ll give a specific limit[ing] instruction on it. You need to understand it’s just a limited
piece of information that you consider with all other information in the case
if you feel it provides any weight to you for any reason whatsoever. [¶] So
please know it’s not intended to demonstrate that . . . Kelly has a bad
character or anything of that nature.
Please accept it. It’s just
another piece you can use if you feel it’s worth anything to you. So keep it in its limited place.â€
There was also evidence
Kelly admitted he was convicted of a theft related offense involving dishonesty
in 2000.
Kelly testified on his
own behalf. Kelly admitted he sought the
services of prostitutes on many occasions.
With respect to Michelle, he thought she was a prostitute because she
was sitting at a bus stop late at night and the buses were not running. He said Michelle initiated the contact by
tapping on his window and getting into his car.
Kelly asked her if she wanted to go on a date, and she said yes for $30,
although specific acts were not discussed.
Kelly noticed she did not have shoes and appeared to be high. Kelly drove to a motel where he knew someone
to get her shoes but was unsuccessful; he did not lock her in the car. Kelly testified he drove to a park, which is
where he commonly took prostitutes. When
they got to the park, Michelle willingly walked to a secluded area of the park
with him. He removed Michelle’s pants
and put on a condom. Kelly said she did
not object when he put his penis in her anus, but the condom ripped and there
was “pre cum†on his penis and in the condom; he did not ejaculate. Kelly claimed he stopped because he did not
have another condom. Michelle demanded
the money, Kelly refused, and Michelle got angry and left.
As to Elaina, Kelly said
he was with his brother when he saw Elaina talking to three Hispanic men. Kelly said she was about to get into their
car when he called to her. Kelly asked
her what she was doing that evening, and after Elaina said she had gotten in a
fight with her boyfriend, he asked her if she wanted to “kick it†with
him. She agreed if he would take her
home later. Kelly’s brother moved to the
back seat, and Elaina got into the front seat.
Kelly went to 7-Eleven for cigarettes, took his brother home, and drove
to the same park he took Michelle. On
the way to the park, Kelly asked and Elaina agreed to have sexual intercourse
with him. Kelly claimed Elaina never
objected or asked to leave. After they
listened to music, Kelly unzipped his pants and Elaina performed oral sex on him
and swallowed his ejaculate. They walked
to a bench in the park and Kelly removed her clothes. Kelly had anal intercourse with Elaina
because he did not want to get her pregnant.
He claimed she did not object. Kelly
removed his penis from her anus and asked her if she preferred anal intercourse
or vaginal intercourse, and Elaina said “it doesn’t matter.†Kelly had anal intercourse with Elaina and
ejaculated in her anus. Kelly testified
that as they walked back to the car, Elaina talked about being together and
having kids. Kelly thought she was “a
little defective.†Elaina asked Kelly to
take her home but he offered to take her to a 7-Eleven and give her money for a
taxi. When they arrived, Elaina, who was
upset, got out, slammed the door, and walked into the store. Kelly testified he never forced Michelle or
Elaina to engage in any sexual acts with him.
After closing argument,
the trial court instructed the jury with
CALCRIM
No. 1191, “Evidence of Uncharged Sex Offense,†and CALCRIM No. 1190, “Other
Evidence not Required to Support Testimony in Sex Offense Case.â€
CALCRIM No. 1191
provided as follows: “The People
presented evidence that [Kelly] committed the crime of . . . [section] 261.5
that was not charged in this case. This
crime is defined for you in these instructions.
[¶] You may consider this
evidence only if the People have proved by a preponderance of the evidence that
[Kelly] in fact committed the uncharged offense. Proof by a preponderance of the evidence is a
different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact is
true. [¶] If the People have not met this burden of
proof, you must disregard this evidence entirely. [¶] If
you decide that [Kelly] committed the uncharged offense, you may, but are not
required to, conclude from that evidence that [Kelly] was disposed or inclined
to commit sexual offenses, and based on that decision, also conclude that
[Kelly] was likely to commit [f]orcible [s]odomy [section] 286[, subdivision]
(c)(2) and/or [f]orcible [o]ral [c]opulation [section] 288a[, subdivision]
(c)(2) as charged here. If you conclude
that [Kelly] committed the uncharged offense, that conclusion is only one fact
to consider along with all the other evidence.
It is not sufficient by itself to prove that [Kelly] is guilty of
[f]orcible [s]odomy [section] 286[, subdivision] (c)(2) and/or [f]orcible
[o]ral [c]opulation [section] 288a[, subdivision] (c)(2). The People must still prove each charge
beyond a reasonable doubt.â€
CALCRIM No. 1190 stated
as follows: “Conviction of a sexual
assault crime may be based on the testimony of a complaining witness
alone.†The court also instructed the
jury with CALCRIM No. 301 as follows:
“The testimony of only one witness can prove any fact. Before you conclude that the testimony of one
witness proves a fact, you should carefully review all the evidence.â€
A jury convicted Kelly
of counts 1, 2, 3, and 5, and found true the allegations with respect to counts
2, 3, and 5. The jury acquitted Kelly of
count 4 but convicted him of the lesser included offense of kidnapping (§ 207,
subd. (a)).
The trial court
sentenced Kelly to 100 years to life plus a determinate term of 20 years as
follows: count 2-50 years to life and
five years for the movement of victim enhancement; count 5-50 years to life and
five years for the movement of victim enhancement; count 4-the middle term of
five years; and the prior serious felony conviction-five years. The court imposed and stayed the sentence on
count 1, and ran the sentence on count 3 concurrent to count 2.
DISCUSSION
Evidence Code section 1108
Kelly argues the trial
court erred when it admitted evidence of his 2003 uncharged sexual offense conviction
because it lacked probative value and was unduly prejudicial. Not so.
Evidence of an uncharged
offense is generally inadmissible to prove criminal disposition. (Evid. Code, § 1101, subd. (a);
369.) Evidence Code section 1101,
subdivision (b), however, allows the trial court to admit “evidence that a
person committed a crime . . . or other act when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or whether a defendant in a prosecution for an
unlawful sexual act or attempted unlawful sexual act did not reasonably and in
good faith believe that the victim consented) other than his or her disposition
to commit such an act.â€
As relevant here, Evidence Code section 1108, subdivision (a), states,
“In a criminal action in which the defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence
Code] [s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence
Code] [s]ection 352.†(Italics
added.) Evidence Code section 1108,
subdivision (d)(1), defines “‘sexual offense’†as “a crime under the law of a state or of the United States that involved any of the following . . .
.†(Italics added.) One of those crimes is unlawful sexual intercourse with a minor (§ 261.5,
subd. (a)). (Evid. Code,
§ 1108, subd. (d)(1)(A).)
Evidence
Code section 352, however, authorizes a trial court to exclude prior sexual
offenses evidence offered pursuant to Evidence Code section 1108. Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.â€
“The
two crucial components of [Evidence Code] section 352 are ‘discretion,’ because
the trial court’s resolution of such matters is entitled to deference, and
‘undue prejudice,’ because the ultimate object of the [Evidence Code] section
352 weighing process is a fair trial.†(
736.) We are mindful that “‘“[t]he
prejudice which [Evidence Code section 352] is designed to avoid is not the
prejudice or damage to a defense that naturally flows from relevant, highly
probative evidence.†[Citations.] “Rather, the statute uses the word in its
etymological sense of ‘prejudicing’ a person or cause on the basis of
extraneous factors.â€â€™ [Citation.] Painting a person faithfully is not, of
itself, unfair.†(Harris, supra, 60 Cal.App.4th at
p. 737.)
We review the trial court’s admission of evidence pursuant to Evidence
Code sections 1108 and 352 for an abuse of discretion. (People
v. Wesson (2006)
138 Cal.App.4th 959, 969.)
In
Harris, supra, 60 Cal.App.4th
at pages 737 to 741, the court
articulated the following factors to determine whether evidence of prior sexual
acts was properly admitted pursuant to Evidence Code section 1108: (1) the probative value of the evidence; (2)
the inflammatory nature of the evidence; (3) the possibility of confusion of
the issues; (4) the amount of time involved in introducing and refuting the
evidence of uncharged offenses; and (5) remoteness in time of the uncharged
offenses.
Value
for unlawful sexual intercourse with a minor had little if any probative
value to the charged offenses because the 2003 conviction is not sufficiently
similar to the charged offenses. We
disagree.
Harris, supra, 60
Cal.App.4th at page 740, concerned Evidence Code section 1108 and whether evidence
of an uncharged violent sexual attack was admissible in a case where defendant
was charged with non-violent sexual offenses involving a breach of trust. The court stated, “Although this is not a[n]
[Evidence Code]
section
1101 case, the trial court properly took into consideration the degree of
similarity of the prior and current offenses, as similarity would tend to
bolster the probative force of the evidence.â€
(Harris, supra, 60 Cal.App.4th at p. 740.) Disagreeing with the trial court, the court
of appeal concluded there was no meaningful similarity between the uncharged
sexual offense and the charged offenses.
(Id. at pp. 740-741.)
Here,
the trial court did not abuse its discretion in admitting evidence of Kelly’s
2003 conviction for unlawful sexual intercourse with a minor. The court properly weighed the probative
value of the evidence against its prejudice and concluded its admission was not
unduly prejudicial. Although the
uncharged sexual offense was statutory rape and did not involve force, evidence
Kelly engaged in unlawful sexual intercourse with a minor does have some
relevance in assessing whether he committed a slightly different but equally
unlawful sexual offense, forcible rape.
Evidence Kelly preyed on a young woman and took advantage of her had
probative value in determining whether Kelly preyed on adult women and took
advantage of them. The uncharged 2003
conviction was no more inflammatory than the charged offenses because it did
not include any force or violence.
Contrary to Kelly’s assertion otherwise, this does not mean the 2003
conviction bore no similarity to the charged offenses. The 2003 conviction was sufficiently similar but
not more inflammatory. There is no
likelihood the jury would confuse the issue because Kelly suffered a conviction
from his 2003 conduct and the jury was not required to determine whether the
conduct occurred. (People v. Branch (2001) 91 Cal.App.4th 274, 284.) Admission of the 2003 conviction did not
consume an undue amount of time as it was admitted by stipulation. Finally, the 2003 conviction was not too
remote because the conduct occurred the month between the time he assaulted
Michelle and Elaina. Therefore, the
trial court properly admitted evidence Kelly suffered a 2003 conviction for
unlawful sexual intercourse with a minor pursuant to Evidence Code section
1108.
Because we have concluded the trial
court properly admitted Kelly’s 2003 conviction for unlawful sexual intercourse
with a minor, we need not address his claim he was prejudiced by its
admission. Nonetheless, he was not
prejudiced because it was not reasonably probable there would have been a
different result had the court not admitted the 2003 conviction—the evidence of
Kelly’s guilt was overwhelming. (
427-428.) Similarly, our conclusion also renders
meritless his assertion admission of the evidence violated his federal
constitutional rights. (
114 [violations state evidentiary rules do not constitute federal
constitutional error].)
Jury Instructions
CALCRIM No. 1191
he failed to object to the instruction and the case authority weighs against
his claim but raising the issue to preserve it for federal review, Kelly
contends the trial court erred in instructing the jury with CALCRIM No. 1191
because it violated his federal constitutional rights. We disagree.
In People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (
constitutionality of a substantially identical instruction, the 1999 version of
CALJIC No. 2.50.01, rejecting arguments similar to those raised by Kelly here. (People
v. Loy (2011) 52 Cal.4th 46, 71-74)
Additionally, other courts, citing Reliford,
have rejected identical challenges to CALCRIM No. 1191. (People
v. Miramontes (2010) 189 Cal.App.4th 1085, 1103; People v. Wilson (2008)
166
Cal.App.4th 1034, 1049; People v. Cromp
(2007) 153 Cal.App.4th 476, 480; People
v. Schanbel (2007) 150 Cal.App.4th 83.)
Likewise, we reject it here.
Kelly’s assertion those cases do not address the issue of whether the
instruction is internally inconsistent is forfeited for failing to object on
the specific grounds now asserted on appeal.
(People v. Geier (2007) 41
Cal.4th 555, 590, overruled on another ground in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, .)
CALCRIM No. 1190
acknowledging he failed to object and the weight of case authority is against
him but raising the issue to preserve it for future review, Kelly claims the
trial court erred when it instructed the jury with CALCRIM Nos. 1190 and 301
because they violated his federal
constitutional rights. Again, we
disagree.
The substantively
similar predecessor CALJIC instructions to
CALCRIM
Nos. 1190 and 301 have been found to be legally correct. As stated in People v. Gammage (1992) 2 Cal.4th 693, 700 (Gammage): “It is not
disputed that both
CALJIC
No. 2.27 [the predecessor of CALCRIM No. 301] and [CALJIC] No. 10.60 [the
predecessor of CALCRIM No. 1190], considered separately, correctly state the
law. ‘In California conviction of a sex
crime may be sustained upon the uncorroborated testimony of the prosecutrix.’ [Citation.]
We specifically upheld an instruction equivalent to CALJIC No. 10.60 as
long ago as 1912. [Citation.]†After explaining the two instructions
“overlap to some extent,†the court opined each instruction “has a different
focus.†(Gammage, supra, 2 Cal.4th at p. 700.) The court stated: “CALJIC No. 2.27 focuses on how the jury
should evaluate a fact (or at least a fact required to be established by the
prosecution) proved solely by the testimony of a single witness. It is given with other instructions advising
the jury how to engage in the fact-finding
process.
CALJIC
No. 10.60, on the other hand, declares a substantive rule of law, that the
testimony of the complaining witness need not be corroborated. It is given with other instructions on the
legal elements of the charged crimes.†(
both instructions in sexual offense cases.
(Id. at p. 702.) Despite Kelly’s claim “Gammage is flawed, for several reasons[,]†we are bound to follow
it. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Sentencing
sentencing contentions. Our resolution
to the first renders the second moot.
Section 654
argues the trial court erred in failing to stay the sentence on count 4 because
he committed count 4, kidnapping, in furtherance of and a means of committing
count 5, sodomy by force. We agree.
Section 654 provides
“[a]n act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.â€
Section 654 proscribes
multiple punishments for a course of conduct that violates more than one
statute but constitutes an indivisible transaction. (People
v. Beamon (1973) 8 Cal.3d 625, 637.)
Whether a course of conduct is indivisible under section 654 depends on
the intent and objective of the actor. (
Cal.2d 11, 19 (Neal), overruled in
part in People v. Correa (2012) 54
Cal.4th 331.) “If all of the offenses
were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.â€
(Neal, supra, 55 Cal.2d at p. 19.) Therefore, to permit multiple punishments,
the evidence must support a finding the defendant formed a separate intent and
objective for each offense for which he was sentenced. (Ibid.) A “defendant’s intent and objective are
factual questions for the trial court†(People
v. Adams (1982) 137 Cal.App.3d 346, 355), which may properly infer a
defendant’s intent from the circumstances surrounding his act.
The standard of review
for defendant’s appeal is substantial evidence.
(People v. Blake (1998) 68
Cal.App.4th 509, 512.) Under this
standard, we review the entire record in the light most favorable to the
prosecution to determine whether it contains evidence that is reasonable,
credible, and of solid value, from which a rational trier of fact could find
the facts required to support its decision beyond a reasonable doubt. (People
v. Kipp (2001) 26 Cal.4th 1100, 1128.)
In this analysis, we must presume the existence of every fact the court
could reasonably deduce from the evidence.
(People v. Jones (2002) 103
Cal.App.4th 1139, 1143.) The trial
court’s determination cannot be reversed on appeal unless it is unsupported by
evidence presented at trial. (
68, 75.)
In People v. Latimer (1993) 5
Cal.4th 1203 (Latimer), the California
Supreme Court held multiple punishment for kidnapping and rape is barred by
section 654, where the sole purpose of the
kidnapping was to facilitate the rape. (
1216.) The court explained where the
kidnapping is part of a continuous course of conduct motivated by one objective,
rape, the
kidnapping—even if completed before the rape
was committed—will be treated as incidental to and a means of committing the
rape precluding punishment for both offenses.
(Ibid.) Therefore, the court concluded where a
defendant perpetrates both kidnapping for the purpose of committing rape and
rape, imposition of separate sentences for both offenses is prohibited under
section 654. (Latimer, supra, 5 Cal.4th at p. 1216.).
Here, the evidence
demonstrated that from the outset Kelly intended to have a sexual encounter
with Michelle and thought she was a prostitute.
After they left the motel and Michelle begged Kelly to let her go and
she spurned his advances, Kelly refused and kept driving. To the extent this encounter could be
characterized as one between a prostitute and her client ended at this
point. Kelly forcibly detained Michelle
and drove her to the park knowing she wanted to be let go. Like Latimer,
based on the evidence Kelly intended to have a sexual encounter with Michelle
and he kidnapped Michelle, the evidence established the kidnapping had no
objective apart from facilitating the rape.
The fact the jury convicted Kelly of kidnapping, the lesser included
offense of kidnapping to commit a sex offense, does not alter our
conclusion. Because we conclude the
trial court should have stayed the sentence on count 4, we need not address
Kelly’s alternative claim the proper term on the consecutive sentence on count
4 is one-third of the middle term.
DISPOSITION
We affirm the
convictions but modify the judgment as follows:
The
five-year term imposed on count 4, kidnapping, is ordered stayed pursuant to
section
654. The clerk of the superior court is
directed to prepare an amended abstract of judgment consistent with this
opinion and forward it to the Department of Corrections and Rehabilitation,
Division of Adult Operations.
O’LEARY,
P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
name="_ftn1" title="">[1] A law enforcement officer confirmed Kelly
has such a tattoo.
name="_ftn2" title="">[2] All further statutory references are to
the Penal Code, unless otherwise indicated.
