People v. Perkins

5 Cal.App.5th 454

209 Cal.Rptr.3d 517

The PEOPLE, Plaintiff and Respondent,

v.Arthur Lee PERKINS, Jr., Defendant and Appellant.

C072545

Court of Appeal, Third District, California.

Filed November 14, 2016

Certified for Partial Publication.^*

Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernsteinand Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

NICHOLSON, J.

Defendant appeals his convictions arising from the kidnapping and rape of a 17–year–old girl and the rape and sodomy of his 11–year–old former stepdaughter. He attacks (1) his one-strike sentences on his sex crimes on numerous grounds; (2) the joinder of the two cases; (3) the trial court's denial of his motion to suppress DNA evidence; (4) the lack of instructions on his out-of-court admissions; (5) the lack of a Marsden¹ hearing; and (6) cumulative error. He also seeks a stay of one of his sentences and corrections to the abstract of judgment.

We reverse the life without parole sentences imposed as enhancements under the one-strike rule for lack of substantial evidence. We affirm the judgment in all other respects and remand the matter for resentencing only.

FACTS

Victim A.—July 10, 2008

On the evening of July 10, 2008, 17–year–old A. went to a party. She wore a new blue dress her grandmother gave her that day. She was intoxicated when she arrived at the party, and she continued to drink alcohol while she was there. A friend arrived at the party with defendant. The friend introduced defendant to A. as JR, a friend of her father's.

About a month before, A. broke her jaw. On the night of the party, her jaw was wired almost completely shut. She could open her jaw only about an inch or so.

A. was uncomfortable at the party. Her ex-boyfriend was there with another girl. Defendant and A. sat on a couch and talked. He tried to comfort her. A. was not attracted to defendant. He was 36 years old, about 300 pounds in weight, and intimidating in looks.²

At approximately 1:00 a.m., A. left the party and began walking to the nearby home of a friend, where she hoped to spend the night. Although there were a few street lamps, businesses were closed, and it was dark. She saw some people walking on the street at a distance. After she walked across a set of train tracks, someone came up from behind her and punched her in the face, knocking her out.

When A. regained consciousness, she was in pain. Her back hurt from being dragged, and her face hurt from being hit. She had blood on her lips. She was on her back on the ground next to a small wall by an automotive shop some 500 to 600 feet from where she had been hit. The first thing she saw was defendant's face.

Defendant was on top of A. trying to have sexual intercourse with her. Her underwear had been removed. A. screamed, but defendant put his hands on her throat and told her to "shut the fuck up" or he would kill her and her family. She tried to get away, but defendant dragged her back, telling her he would kill her if she tried to escape.

A. eventually "gave up" because she was not going to fight someone who said he would kill her and her family. Defendant penetrated A., but not fully because she was menstruating and was using a tampon. Defendant also orally copulated her. He told her she had better say she liked it. He said if she screamed, he would kill her.

Defendant became frustrated when he could not penetrate A. He sat down next to the wall and told A. to orally copulate him. She told him her mouth was wired shut and she could not do it. He told her to do it or he would kill her. She complied with his demand. Afterward, he took all of her belongings and ran away.

Law enforcement investigated the crime. Photographs of A.'s injuries depicted bruising on the inside of her right bicep, consistent with her being held down. She also had fresh abrasions on her lower back and elbows, and swelling in her face. DNA recovered from semen stains on A.'s dress matched defendant's DNA profile.

A. identified defendant as the person who raped her in a police photographic lineup, and by a tattoo on his leg. She also identified defendant in court as the culprit.

Victim T.—July 8–9, 2011

On July 8, 2011, 11–year–old T. spent the night at her mother's new apartment. With her that night in the apartment were her mother, C.H. (mother); her sisters M., aged eight, and three-week-old J.; and defendant. T. knew defendant as JR. Defendant was J.'s father, but not T.'s. Although mother and defendant were no longer married, mother asked defendant to help her move into the apartment.

The apartment had one bedroom. T. and M. slept on couches in the living room. That night, mother and defendant argued for hours near the living room. T. thought they stopped arguing around 4:00 a.m. when she went to bed. She did not go to bed earlier because she was making sure M. and J. were all right.

T. awoke early to defendant shaking her. He told her to go feed J. T. went into the bedroom, where J. was lying on the bed, and she gave her a bottle. Mother was not there; defendant told T. her mother had left to pick up things from her old apartment.

Defendant then told T. to go into the bathroom. She thought he told her to go into the bathroom because maybe she was going to help him fix something. She did not want to, or need to, go into the bathroom.

Defendant followed T. into the bathroom, and he began to undo his belt. T. thought he was going to spank her, but she did not know what she had done wrong. Defendant told her to bend down. She bent over at her waist and put her hands on the bathtub. At that point, she thought defendant was trying to do something "creepy." He pulled down her shorts and underwear, and then he pulled down his pants. T. did not try to get out of the bathroom at that point because she was frightened.

Defendant sodomized T. She saw him put cream on his penis. He penetrated her but not completely. It hurt her. T. tried to yell for help, but defendant put his hands around her throat and told her that if she yelled, he would hurt her. She did not try to get away because she feared he would do something. Defendant sodomized her for at least three minutes.

Defendant then told T. to go back into the bedroom. She did not want to go into the bedroom, thinking defendant would "do more stuff" there. She did not want to be anywhere near him, but she went into the bedroom because he told her to, and she was afraid that if she did not comply, he would hurt her.

Defendant told T. to get down on her knees on the floor. T. complied. She did not try to run out of the room and go to her sister M. She feared that if she woke up M., defendant would kill her or hurt her. She was concerned about her sisters because defendant said if she told anybody, he was going to hurt baby J. and kill her mom, her father, and M.

Defendant again pulled T.'s underwear down and sodomized her. Only part of his penis penetrated her. It hurt her. This lasted for about three or four minutes. Then defendant turned T. over on her back and had sexual intercourse with her, inserting his penis partway into her vagina. He asked her if it felt good. She said no, it hurt.

T. told defendant she had to go to the bathroom. He told her to go. She used the bathroom, and afterward went into the living room. Defendant came into the living room, held a butter knife to T.'s neck, and said if she ever told anyone, "you know what I was going to do."

Some minutes later, mother returned to the apartment. Mother had left the apartment earlier to get coffee. On her return, she did not want to have another argument, so she sat in her car, drank her coffee, and had "a moment of peace for my own head." She had been gone about 30 or 45 minutes when defendant called her, wanting to know where she was. He said T. had awakened and was "freaking out" thinking her mother was not coming back. So mother went into the apartment. She talked with defendant in the bedroom, and during the conversation, he stuck a knife in the ceiling.

Back in the living room, T. asked her mother if she could go to her father's house. Mother asked why. With defendant standing nearby, T. said, "I can't tell you anything because he'll hurt you. He'll hurt us." Mother reassured T., and eventually T. told her what happened. Mother checked T.'s genital area in the bathroom, and noticed redness, irritation, and discharge. Enraged, mother attacked defendant, choking him until he turned blue and fell to the ground. She told T. to call 911, and as defendant got up, mother threw him against the kitchen cupboards. Defendant ran out, and mother got the girls into her car to take T. to the hospital. Later, upon returning to the apartment, mother found all of her kitchen knives had been wrapped in a towel and placed behind her dresser in the bedroom.

Police arrived at the apartment complex and found defendant attempting to leave on foot. The police officers repeatedly demanded defendant to stop and place his hands up, but he refused and continued walking toward them. He reached into his front pants pocket and pulled out a knife in a sheath. He threw it against a building. The officers drew their guns, defendant stopped, and the officers arrested him. Officers found a Methadonepill in defendant's possession. The knife had a finger hole in it for better grip.

Police processed the apartment for evidence. The bathroom was visible from the living room. The bathroom door was about 10 feet from the bedroom door, and the bathtub in the bathroom was approximately 30 feet from the bed in the bedroom. The bathtub was a bathtub-shower combination enclosed by three walls. The bathroom medicine cabinet was open, and officers found a bottle of Baby Magic baby lotion on the bottom shelf. Officers also found latent palm prints on the bathtub's outside edge and latent fingerprints on...