People v. Lindsey

THE PEOPLE, Plaintiff and Respondent, v. ARTHUR EUGENE LINDSEY, Defendant and Appellant.

B263506

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

February 14, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. MA059832)

APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Judgment of conviction affirmed; sentence vacated and remanded for resentencing.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Defendant Arthur Eugene Lindsey was convicted by a jury of multiple sexual offenses, including rape and oral copulation of an unconscious person.¹ The trial court sentenced Lindsey to 50 years to life plus an additional determinate term of 52 years and four months.

Lindsey contends the trial court erred by denying his post-verdict Marsden² motion and argues the court's instructional errors require reversal. In addition, Lindsey claims the trial court erred by finding that both of his prior Indiana convictions qualified as serious or violent felonies for purposes of the three strikes law. He also argues the court erred by imposing multiple serious felony enhancements on his determinate and indeterminate sentences. We find no Marsden or instructional error but agree the sentence was erroneous. Consequently, while we affirm the judgment of conviction, we vacate the sentence and remand for resentencing.

FACTS

A. The Case Begins With a Parole Visit to Lindsey's Home

In June of 2013, Lindsey lived in a trailer park near Acton in the Santa Clarita Valley. He was 73 years old at the time and was a lifetime parolee due to his prior convictions for rape and murder. He was considered a high risk sex offender, wore a GPS ankle monitor, and was subject to unannounced visits from parole officers.

Thomas Foster, a state parole agent recently assigned to Lindsey's case, made an unannounced visit to Lindsey's trailer on the morning of June 5, 2013.³ When he entered, Foster observed a partially dressed young woman whom Lindsey identified as Tiffany. Lindsey said he brought Tiffany home the night before because she needed help. Foster attempted to question Tiffany, but Lindsey kept interrupting and answering his questions. Foster asked if they had sex, and Lindsey said they had not.

Foster took Tiffany outside to question her. He asked her if she had sex with Lindsey; she said she did not remember. Tiffany appeared to be under the influence of an unknown intoxicant. She had difficulty walking and speaking and seemed to nod off during the interview.

Foster told Lindsey he did not want Tiffany spending another night at the trailer. Foster left and called his supervisor, Larry Dorsey, for advice on how to proceed. Dorsey and another parole agent, Kyle Smith, met Foster in Acton, and the three of them went to the trailer park.

Dorsey opened the door and entered Lindsey's trailer. Tiffany was naked, and Lindsey was orally copulating her. Tiffany looked dazed and disheveled, her speech was slurred, and she appeared to be drifting in and out of consciousness. Smith handcuffed Lindsey.

Dorsey handed Tiffany her clothing and told her to get dressed. She had difficulty following his directions and getting dressed. Dorsey took her outside the trailer, and he and Smith attempted to talk to her while Foster stayed with Lindsey. Tiffany had trouble walking and talking; her speech was slurred, she could not complete a sentence, and she kept drifting in and out of consciousness. She was unable to tell Dorsey her name, so he looked in her purse for identification. He found a pill, which Tiffany identified as Xanax.

Tiffany spontaneously blurted out that she had been raped, then she started crying and became hysterical. Dorsey called the sheriff's department, and deputies came and took Lindsey into custody. Paramedics took Tiffany to the hospital.

A search of Lindsey's trailer revealed a vodka bottle, a bag of marijuana, a marijuana pipe, and a penis pump. At one point Lindsey told Dorsey, "I pumped my dick up and fucked her all night." A shovel and a rope were found in the trunk of Lindsey's car. Lindsey's cell phone contained a photograph of Tiffany lying down with her eyes closed, as well as photographs of a vagina and breasts.

Two tablets found on a table outside Lindsey's trailer contained alprazolam, a benzodiazepine contained in Xanax. Two containers with clear liquids and one with a red liquid were found inside Lindsey's trailer, but they did not contain any controlled substances.

B. Forensic Evidence

Lindsey was given a sexual assault examination at the hospital. The examination revealed bruising on Lindsey's penis. Lindsey told a nurse practitioner he used the penis pump the previous day in order to have sexual intercourse. Blood and urine specimens revealed a blood alcohol level of .01 percent and the presence of cannabinoids. Tiffany's DNA was present on Lindsey's hand, mouth and penis.

Tiffany had a blood alcohol level of .20 percent. Her urine tested positive for amphetamines, benzodiazepines, cannabinoids and opiates. Benzodiazepines increase the effects of alcohol and combining the two can impair thinking or reactions and cause drowsiness or dizziness.

C. Lindsey's Statements to Law Enforcement

Lindsey initially told Los Angeles County Sheriff's Deputy Scott Short that he was driving through Acton on his way home when he saw Tiffany standing in front of the post office, looking lost. She asked for a ride to an address in Canyon Country, and Lindsey said he would take her there but needed to stop at his home first.

Lindsey said that once they arrived at his trailer, Tiffany drank vodka and took a pill from her purse. Tiffany began rubbing Lindsey's back, "one thing led to another," and they had sexual intercourse. Lindsey used a penis pump to obtain an erection. Lindsey took some pictures of Tiffany using his cell phone. The following morning Tiffany drank three pints of vodka and took another pill from her purse. She again rubbed his back, and then he orally copulated her.

The day after Lindsey's arrest, detectives interviewed him at the sheriff's station. Lindsey said he was at a bar with Sandra Venables when he saw Tiffany standing on the curb. Tiffany gestured toward him, and he asked if she needed a ride. She said she did. He asked her where she wanted to go, and she said she had no place to go. He believed she was a "party girl" because she was wearing a tank top and hot pants. He gave her a ride to his trailer, stopping on the way to buy two beers.

Tiffany had alcohol with her: three full, pint bottles of vodka; one that was half full. Tiffany was already "high." After arriving at Lindsey's trailer, she finished the half full bottle. She took some pills from her pocket, crushed and snorted them. She spilled Kool Aid on herself and was acting silly, but she was not incoherent or falling down drunk. She asked if Lindsey could get heroin, morphine or cocaine. He said he could not.

Lindsey had sexual intercourse with Tiffany two times. At first he was able to get only half an erection due to treatment for prostate cancer. He then used a penis pump to get a full erection. He also inserted his finger in Tiffany's anus.

The following morning Tiffany suggested going for a walk. Before leaving, she drank two pints of vodka and a beer, and she snorted another pill. On the way back to Lindsey's trailer, Tiffany was staggering and had to lean on Lindsey. Back at the trailer, she took her shorts off, sat down and told Lindsey, "There it is." He began orally copulating her.

Lindsey agreed that Tiffany was "wasted," but he said that she never passed out, and she knew what she was doing. He denied raping her or taking advantage of her. While in hindsight he recognized he should not have had sexual relations with someone who was so intoxicated, Lindsey, nonetheless, statedthat when she initiated sexual relations, he was not going to make her stop.

Lindsey told the detectives he served 33 years in prison for first degree murder. He did not recall the events of the murder. He remembered he drank a case of beer, then went to a bar and drank more beer and hard liquor, and was convicted of rape and murder. As a result, he no longer drank more than two or three beers.

D. Tiffany F.'s Testimony

In 2013, Tiffany F. was 28 years old, married, with a six-year-old child. In April, she entered a rehabilitation facility in Acton to be treated for drug and alcohol abuse. At the beginning of June, she was given a 30-hour pass so she could visit her family. During that visit she relapsed and began drinking alcohol. Her husband dropped her off in front of the facility on June 4. Knowing she would not be allowed back into the facility because she had alcohol in her system, Tiffany left her luggage and walked away.

Tiffany walked to a market and stole three half-pint bottles of vodka. She drank half of one of the bottles and began walking down the street. Lindsey drove up and asked if she needed a ride. She said she did and got into Lindsey's car. Lindsey asked where she was going, and Tiffany said she had no idea. She said she needed to sober up so that she could return to the rehabilitation facility. Lindsey offered to take her to his trailer, and she agreed. He stopped on the way and bought two beers. The drive to the trailer took longer than Tiffany expected, and she got nervous.

Once t...