People v. Bell

3 Cal.App.5th 865

208 Cal.Rptr.3d 102

The PEOPLE, Plaintiff and Respondent,

v.Michael X. BELL, Defendant and Appellant.

B263022

Court of Appeal, Second District, Division 8, California.

Filed September 29, 2016

Christopher Hawthorne, Los Angeles, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

RUBIN, J.

Michael Xavier Bell appeals from the judgment imposed after he was resentenced to a combined state prison term of 43 years to life for multiple violent acts, including robbery, rape, and assault with a firearm that occurred when he was 14, contending that his parole eligibility date at age 55 violates the equal protection and cruel and unusual punishment provisions of the state and federal Constitutions. We disagree and affirm the judgment.

FACTS

The lengthy, quoted portion of our statement of facts, including the first five footnotes, is taken verbatim from this court's first decision in this matter. (People v. Bell (July 31, 2003, B158891, 2003 WL 21766497 ) [nonpub. opn.] (Bell I ).) “Appellant's offenses occurred on the evening of December 10, 2000, nine days before his fifteenth birthday, at two homes on a block in Torrance where he had previously resided. Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103] ), the evidence showed that shortly after 6:00 p.m., appellant knocked on the door at the home of Locke Lane, Jr., a former neighbor and friend. Lane opened the door and found appellant standing with another young male.¹ They asked if they could use the phone, and Lane admitted them, explaining that his father was using it. The three went into the living room, where Lane resumed playing games on a PlayStation that was attached to the television.

“Appellant's accomplice left to use the bathroom. When he returned, he held an automatic handgun to Lane's head, and told him to put the video gear on the bed. Lane put the game controller there, and the accomplice told appellant to throw a Nintendo system on the bed too, which he did. When Lane's 15–year–old brother appeared, appellant's accomplice placed the gun inside his jacket. The brother departed, and appellant and his accomplice unhooked the PlayStation. Appellant asked Lane where he could put it. Lane indicated a pillowcase, and appellant placed the two video game systems into it, together with some games.

“Lane's mother entered the living room from the kitchen, and asked Lane where the PlayStation was. Lane said he didn't know. His brother reappeared and dumped out the contents of the pillowcase. Although appellant then claimed that Lane had offered to lend him and his accomplice the systems, Mrs. Lane told them to leave, and they did. Lane, nervous and upset, told his mother not to go outside, because the visitors had a gun.

“About an hour later, appellant and his accomplice rang the doorbell at the home of E.M. and her son, a few houses down the block. Appellant had previously lived in the house in back of Ms. M.'s, and she recognized him. When Ms. M. answered the door, appellant and his accomplice asked if they could use her phone. She declined and closed the door, but it remained partly open. When she moved to shut it fully, Ms. M. saw appellant and his accomplice inside the house, the accomplice holding an automatic handgun. She demanded to know what they were doing, and they told her to shut up, one of them saying, ‘I'm going to kill you.’ Appellant's accomplice pointed the gun at Ms. M.'s eight-year-old son and told him not to scream. The accomplice demanded to know where Ms. M.'s money was, and she informed him and told him to take it.

“Appellant then took the gun from his companion. He asked where the clip was, and the accomplice told him it was loaded. Appellant put the gun to Ms. M.'s head, and told her that she was going to give him ‘head.’ He forced her into the kitchen, ripped open her sweater, and ordered her to remove her pants, which she did, along with her underwear. Appellant sat on a chair and made her unbuckle his pants and open them. Holding the gun to her head, he forced her mouth onto his penis. Ms. M. saw her son pressing his head into a pillow on a couch, as appellant had commanded. Appellant then made her lie on the floor, saying, ‘You're going to like this.’ He proceeded to rape her, then dismounted her and recommenced, the gun still at her head.

“During the acts, appellant's accomplice reappeared, stepped over appellant and Ms. M., and inquired if there were any ‘brewskies.’ Referring to Ms. M., appellant asked the accomplice if he wanted ‘some of this.’ The accomplice declined. Appellant eventually got up and went into Ms. M.'s son's room. At that point, Ms. M. ran to the door in an attempt to escape, but the intruders caught up with her and pushed her onto the couch, where her son was sitting. Appellant's accomplice then took Ms. M. into the kitchen, saying ‘You're going to give me some head.’ He sat on the chair, opened his pants, and told her to put her mouth on his penis. She complied. He then told her to stand up and bend over the counter, and tried without success to penetrate her. After failing to do so with her seated on him, he ordered her to lie on the floor, got on top of her, and raped her, holding the gun to her head.

“When the accomplice stopped and went to Ms. M.'s bedroom, she sat down with her son, who tried to cover her with a blanket. Appellant appeared, pointed the gun at her, and ordered her to remove her gold jewelry and give it to him, which she did. Appellant's accomplice told her to wash herself, and she did so with a sponge in the kitchen sink. The accomplice told Ms. M. to understand that they were looking for Christmas gifts. He said he was just 15 and had three children.² He also told Ms. M.'s son to stay in school, ‘so this doesn't happen to him.’

“Appellant's accomplice then asked to use Ms. M.'s car, which was in her driveway, and she gave him the keys, telling him he could take it. Handing appellant the gun, he went out to the car. Appellant then took Ms. M., who was still naked, back into the kitchen, and raped her again. Ms. M. heard the car's horn honking, but appellant did not get off of her until his accomplice returned and told him, ‘C'mon.’

“Appellant stated that they had to tie up Ms. M. and her son, and the accomplice said he would take her with him. He repeated this when appellant displayed a telephone with a cord that had been ripped from the wall. Ms. M. put on some clothes, as the accomplice directed. Appellant then told him not to forget the television in the son's room. The accomplice handed appellant the gun and got the TV.

“Appellant's accomplice walked outside, followed by Ms. M., who was “sandwiched” close between him and appellant. They walked toward her car, which was now on the street with the engine running, at least 36 feet from the door they had exited. When the accomplice bent down to put the TV in the car, Ms. M. ran screaming down the street.³ A neighbor let her phone the police. When she returned home, the intruders were gone with her car, having left the television in the street.

“Ms. M. flagged down a police car that had responded to her call. Officers took her and her son to San Pedro Peninsula Hospital, where a sexual assault nurse examined her and took swab samples from her genital area, breasts, and mouth area. The examination disclosed vaginal lacerations, consistent with forcible intercourse. While at the hospital, Ms. M. identified appellant from a photographic display. She also identified him at trial.⁴ The next day, Ms. M. returned to her house and found that the bedrooms had been ransacked and numerous additional items of jewelry were missing.

“On December 14, 2000, Los Angeles police officers went to the home of appellant's girlfriend, and found appellant, dressed in his underwear, hiding in her closet. After being arrested and handcuffed, appellant broke away and fled outside. He was apprehended more than an hour later, hiding in a trash bin. The officers recovered items of Ms. M.'s jewelry that appellant's girlfriend was wearing, having been given them by appellant the day before. Subsequently, the girlfriend's mother found a loaded semiautomatic handgun in a neighbor's car in her apartment building's carport.

“A Los Angeles police detective obtained oral swab samples from appellant, for DNA comparison with Ms. M.'s samples. The forensic laboratory director at Cellmark Diagnostics testified that, upon analysis, the vaginal sample contained DNA consistent with appellant's, with a one–in–21–billion frequency, and that he was a possible donor to the breast sample.

“Appellant did not offer an affirmative defense. In closing argument, his attorney contested the sufficiency of the proof of kidnapping, which the information alleged both as a substantive offense and as an aggravating circumstance of the sexual offenses ( [Pen. Code,] § 667.61, subd. (e)(1) ). Counsel suggested that there might have been only an attempted kidnapping, and an attempted rather than completed robbery of Locke Lane, Jr. After the jury retired to deliberate, the court granted appellant's motion under section 1118.1 with respect to the kidnapping charge under section 667.61.⁵ ”Bell was convicted of: three counts of robbery (Pen. Code, § 211 ); three counts of forcible rape (§ 261, subd. (a)(2)); two counts of forcible oral copulation (§ 288a, subd. (c)); one count of kidnapping to commit rape or robbery (§ 209, subd. (b)(1)); and one count of assault with a firearm (§ 245, subd. (a)(2)).⁶ The jury also found true allegations that he committed those crimes during the commission of a residential burglary for purpose of the One Strike law (§ 667.61, subd. (e)(2), (3) ) and that a principal was armed...