PEOPLE v. ROSE

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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Edward Frank ROSE, Defendant and Appellant.

No. E018913.

Decided: February 11, 1998

Gregory Marshall, under appointment by the Court of Appeal, Palo Cedro, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont, Supervising Deputy Attorney General, and Esteban Hernandez, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

In an amended information filed on July 22, 1996, defendant Edward Frank Rose (herein “defendant”) was charged with seven felony sex crimes:  count I-forcible rape (Pen.Code, § 261, subd. (a)(2) 1 );  counts II and III-forcible penetration with a foreign object (§ 289, subd. (a));  count IV-forcible sodomy (§ 286, subd. (c));  and counts V through VII, inclusive-forcible oral copulation (§ 288a, subd. (c)).  It was specially alleged that the rape occurred during a burglary (§ 667.61, subd. (d)(4)), and that defendant inflicted torture while committing count II (§ 667.61, subd. (d)(3)).   It was also alleged that defendant had served two separate prior prison terms.  (§ 667.5, subd. (b).)

Trial was had by jury.   Prior to the jury's verdict, the prosecution dismissed count VII. The jury found defendant guilty as charged on the remaining six counts and found true all the special allegations.   In a bifurcated court trial, the prison priors were found true.

Defendant was sentenced to a total term of 89 years to life, including two separate 25 years-to-life terms.   He appeals contending that (1) the evidence was insufficient to support his conviction of count III;  (2) imposition of two 25 years-to-life sentences under section 667.61 was erroneous;  and (3) section 654 prohibits imposition of a sentence based on the infliction of great bodily injury pursuant to section 667.61, subdivision (d)(3), along with an enhancement based on the same great bodily injury pursuant to section 12022.8.

FACTS

On August 1, 1995, Andrea R. got off work at about 2 a.m.   Her aunt picked her up and gave her a ride home to her one-bedroom apartment on Atwood in Moreno Valley.   The two visited for two hours before the aunt left.   Ms. R. then talked to a neighbor, Andrew, outside of her apartment.   They both noticed two men conversing near her door.   It was between 4 and 4:30 a.m.   Andrew left and returned a few minutes later wanting to borrow some money.   Ms. R. said she did not have any and Andrew left again.

About 10 minutes later, there was a second knock at her door.   Ms. R. assumed it was Andrew again and opened it.   Defendant stuck his foot in the door and asked Ms. R. if she wanted to get high.   She replied that she did not and that her boyfriend would be coming soon.   Defendant slapped her and shoved her onto the ground.   He entered the apartment, closed the door and locked it.

Defendant jumped on Ms. R.'s back and covered her mouth.   He pulled her head by her hair and told her to “shut the fuck up” or he would kill her.   Defendant dragged Ms. R. by her hair to her bed where he took off his clothes and hers, grabbed her all over her body and raped her.   Defendant groped Ms. R.'s anal area and she asked him not to do that.   He told her it was not going to hurt and to shut up.   He then rolled her over and sodomized her.

After sodomizing her for a while, he withdrew his penis and told Ms. R. to “suck his dick.”   She complied because she was scared and because he had already hit her.   Defendant was holding Ms. R.'s head down.   He stopped to move her around and then made her “go down on him” again.   Defendant wanted Ms. R. to take his penis deeper into her throat and to “suck his dick like [she] had never sucked a dick before” or he would “stuff his fist in [her] ass.”   While he was telling Ms. R. this, defendant “already had his fingers all in [her].”

Because Ms. R. could not comply with defendant's demand, he “forced his fist into [her] ass” and moved it around inside of her.   Ms. R. screamed from the pain, fell down limp and felt like she was going to pass out, go into convulsions or throw up.   There was a knock at her door.   Defendant covered Ms. R.'s mouth and would not let her answer the door.   Defendant then said, “Look it. [sic ] You shit all over the place.   Why'd you do that?”   He was referring to the fact that Ms. R. was profusely bleeding from her rectum.

Believing she was going to die, Ms. R. started to cry and asked defendant if he would tell her mother that she loved her.   Defendant did not answer but continued groping her and raped her again.   Defendant wanted Ms. R. to orally copulate his penis again, but she would not do it.   When defendant moved to her side, Ms. R. ran to the kitchen.   Defendant followed her saying, “Come here, bitch.”   Ms. R. picked up a frying pan from the stove and hit defendant in the head.   Defendant did not stop.   Ms. R. ran for the door and was trying to unlock it when defendant grabbed her shoulder and hit her.   Defendant started pulling Ms. R.'s hair and she reached up and pulled his.   Defendant slugged her in the face with his fist.   Ms. R. reached up and grabbed defendant's testicles and pulled them down to the ground.   When this did not appear to faze him, Ms. R. gave up fighting.

Defendant dragged Ms. R. back to the bed and said, “Here, just suck it.”   Ms. R. refused, stating that she would rather die.   At that moment, defendant and Ms. R. heard a screech outside.   Ms. R. said, “That's probably the police.”   Defendant looked out the window and said it was not the police.   He then dressed, washed up in the bathroom, combed his hair with her comb, put a clear shower cap on his head, walked in a circle around Ms. R. and told her that he would be back with some of his “niggers.”   After he left, Ms. R. ran for help.

It was stipulated that Ms. R.'s initial description to the police of her assailant was as follows:  a Black male adult;  6 feet, 1 inch tall;  thin build;  dark skin;  black, short straightened greasy hair;  light mustache;  dark eyes;  last seen wearing dark blue work pants, white tennis shoes, and a black T-shirt with the sleeves cut off and an unknown logo on the front.   Subsequently, Ms. R. told the police about a tattoo defendant had on his chest of a rose with some handwriting.   Defendant displayed the tattoo to the jury and Ms. R. positively identified it as being the same one she had seen when defendant had attacked her.

Defendant's stepmother testified in defendant's defense.   She stated that she was positive that defendant arrived home on August 1, 1995, at 4:50 or 4:55 a.m.   She believed he was wearing a shower cap on his head because he always wears one.   Defendant usually walked everywhere and Ms. R.'s apartment was about two miles from his stepmother's house.

SUFFICIENCY OF THE EVIDENCE ***

IMPOSITION OF TWO “25 YEARS-TO-LIFE” SENTENCES

Pursuant to section 667.61, subdivision (a), a 25 years-to-life term is imposed for “[a] person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d)․”   Here, both counts I (forcible rape) and II (forcible penetration with foreign object) charged offenses “specified in subdivision (c)” of section 667.61, and the jury found true one subdivision (d) circumstance as to count I (burglary, subd. (d)(4)) and one subdivision (d) circumstance as to count II (torture, subd. (d)(3)).   Thus, the trial court imposed consecutive terms of 25 years to life on counts I and II. However, subdivision (g) of section 667.61 provides:  “The term specified in subdivision (a) ․ shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion․  Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law․”  Defendant contends that the trial court erred in imposing two 25 years-to-life terms because the instant case involved only one victim and only one occasion.   We disagree.

As respondent points out, section 667.61 fails to define what it means by “single occasion.”   Respondent suggests that we look to other related code sections and general case law regarding the punishment of defendants who commit multiple sex offenses against a single victim during what appears to be a single occasion.   We agree with such suggestion.

Section 667.6, subdivision (d) provides:  “In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.   Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.”

Former section 654 provided, “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

Case law discussing when sex offenders who commit multiple sex crimes against a single victim during what appears to be a single occasion is also instructive.   For example, People v. Scott (1994) 9 Cal.4th 331, 340-348, 36 Cal.Rptr.2d 627, 885 P.2d 1040, provides that fondling and sexual intercourse with a minor were divisible acts which could be separately punished as different acts of lewd and lascivious conduct with a child as each unlawful sexual act was completed, i.e., the perpetrator stopped then resumed unlawful activity.   In People v. Brown (1994) 28 Cal.App.4th 591, 601-602, 33 Cal.Rptr.2d 678, separate sentences for eight counts of forcible rape of one victim in one incident were upheld because each time the victim struggled and defendant's penis came out, he could have chosen to stop his attack.   And finally, in People v. Plaza (1995) 41 Cal.App.4th 377, 384-385, 48 Cal.Rptr.2d 710, the court found that changing position from vaginal intercourse to oral copulation in which defendant forced his penis into the victim's mouth while warning her not to do anything “weird” supported a finding of separate occasion as it demonstrated defendant's conscious awareness of his separate sexual act.

Here, Ms. R. estimated that defendant was in her apartment for approximately one hour.   Between the time that defendant raped her (when he first entered her apartment) and the time that he shoved his fist up her anus (shortly before he left her apartment), many other events transpired.   Defendant groped Ms. R.'s anus and digitally penetrated her, he sodomized her, and, on two separate occasions, he forced her to orally copulate his penis.   Each time defendant initiated another sexual assault on Ms. R. he forced her to change positions while he was making verbal demands.   Specifically, his verbal demand between the two forced oral copulations demonstrates defendant's conscious awareness of his separate sexual act:  Defendant put his penis in her mouth and told her to “suck his dick.”   She complied because she was scared and because he had already hit her.   Defendant was holding Ms. R.'s head down.   He then stopped, moved her around, and made her “go down on him” again.   He wanted her to take his penis deeper into her throat.   He demanded that she “suck his dick like [she] had never sucked a dick before” or he would “stuff his fist in [her] ass.”   Because Ms. R. was unable to comply with defendant's demands, he carried out his threat.

Based on the above, we find that defendant had a reasonable opportunity to reflect on his actions between his sexual assaults on Ms. R. Thus, we conclude that counts I and II involved separate occasions warranting separate, consecutive terms of 25 years to life.

SECTION 654†

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

HOLLENHORST, Associate Justice.

RAMIREZ, P.J., and RICHLI, J., concur.

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