People v. Sasser

THE PEOPLE, Plaintiff and Respondent,

v.DARREN DERAE SASSER, Defendant and Appellant.

A127431

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Dated: July 27, 2011

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. 156534)

Defendant Darren Derae Sasser (appellant) appeals his October 13, 2009 conviction by jury trial of the following offenses against Jane Doe 1 (JD1): forcible oral copulation (Pen. Code, § 288a, subd. (c)(2))¹ (count 2), sodomy by use of force (§ 286, subd. (c)(2)) (count 5), and three counts of forcible rape (§ 261, subd. (a)(2)) (counts 6, 7 & 8); and the following offenses against Jane Doe 2 (JD2): two counts of forcible oral copulation (counts 10 & 15), two counts of sodomy by use of force (counts 11 & 17), and two counts of forcible rape (counts 13 & 16).² As to counts 10, 11, 13, 15, 16, and 17 involving offenses against JD2, the jury found true a firearm use enhancement(§§ 667.61, subd. (e)(4), 12022, subd. (b), 12022.3, 12022.5, 12022.53, subd. (b)). As to counts 2, 5, 6, 7 and 8 involving offenses against JD1, the jury found true the deadly weapon use enhancement (§§ 667.61, subd. (e)(4), 12022, subd. (b), 12022.3). As to the counts involving offenses against both JD1 and JD2, the jury found true the multiple victim special circumstance allegations under the "One Strike" law (§ 667.61, subd. (c)) and the special circumstance allegations under Jessica's law³ that the offenses were one of several/many "involv[ing] the same victim on separate occasions." (§ 667.6, subd. (d).)⁴ Appellant was sentenced to 458 years four months to life in state prison. He raises numerous claims of error on appeal. We conclude the court erred in failing to instruct the jury as to attempted sodomy and committed sentencing error. We reverse the sodomy counts against JD2 (counts 11 & 17) and remand for resentencing.

BACKGROUND

JD1 Offenses

In November 2005, JD1 lived in an apartment on Courtland Avenue in Oakland with her two minor sons and her friend, Adelia De La Cruz. At about 9:30 a.m. on the morning of November 9, De La Cruz heard a knock at the front door. She looked through the screen door and saw a man wearing blue jeans and a white T-shirt. The man said he was from Comcast and asked if there was a computer in the apartment. When De La Cruz said, "No," the man left and went to the door of a neighbor's apartment. A few minutes later, De La Cruz heard noises and saw the same man trying to open the back door. Five minutes later the man again knocked on JD1's apartment door and askedDe La Cruz for the laundry room key and asked where the apartment complex's laundry room was located. He asked De La Cruz to accompany him to the laundry room, but she declined. De La Cruz was "kind of suspicious." She left the apartment around 10:30 a.m. Because she was in a rush, De La Cruz did not tell JD1, who was asleep, about the suspicious man.

After De La Cruz left the apartment, JD1, who was in her bedroom, heard noises coming from outside. She went to the front door and saw a man, later identified as appellant, standing outside her apartment. When she asked him what he was doing he said he was from Comcast and replacing the corroded wiring. When appellant asked her for keys to the laundry room she complied. He took the keys and walked toward the laundry room. Appellant returned a couple of minutes later saying he wanted to return the keys. From inside the apartment JD1 told him to put the keys on the table outside the apartment door.

When JD1 walked to the front door and opened the gate to get the keys, appellant forced himself inside her apartment. He held a sharp object to her neck and physically directed her into the kitchen. Inside the kitchen he grabbed a knife from a drawer, held it to JD1's neck and took her into her bedroom. There, appellant said, "Bitch, give me your money." When she said she had none, he asked for her jewelry. After she said the two necklaces on her neck were all she had, he ripped them off her neck. He then pushed her onto the bed face down, unbuckled his pants, and, despite her protests, pulled her off the bed onto her knees and forced her to orally copulate him.

Appellant then forced JD1 into the living room where he raped her multiple times. In between some of the rapes, he forced her into a closet with her nine-month-old son while he looked through her other closets. Appellant would then drag JD1 out of the closet by her hair and sexually assault her in the living room. On one occasion appellant forcibly sodomized her. During each act appellant held the knife in his hand. During the two hours he was inside JD1's apartment, he smoked "crack" and tried to force her to smoke it. He also demanded that she take off her clothes and lie on the floor with her hands on her buttocks while he masturbated.

Appellant then wrapped wire around the necks of JD1 and her son and tied them together on the bed. She thought appellant was going to kill her and her son. Appellant stood in the bedroom doorway and then eventually left the apartment.

JD1 untied herself, retrieved the knife from the living room couch and returned it to the kitchen drawer. She then asked a neighbor to call the police. According to the neighbor, JD1 was wrapped in a blanket, her hair was "all over," she was crying, and she said she had been raped. JD1 also said her assailant had put a knife to her neck and sodomized her.

The police arrived and JD1 was transported to the hospital where she was interviewed and examined by a sexual assault response team (SART) practitioner. She told the practitioner she had been raped, sodomized and forced to orally copulate her assailant multiple times. The physical exam findings were consistent with JD1's report of what occurred.

The next day, JD1 noticed that DVD players, some money and a cell phone were missing from her apartment. When she called her cell phone number, a man answered; JD1 recognized the voice as belonging to appellant.

When JD1 was initially shown a photo lineup she identified someone other than appellant as her assailant; however, that person's DNA did not match that on the DNA swab taken from her. Subsequently, appellant's name came up as a result of a computer database DNA match. A DNA expert testified that the match between appellant's DNA and the DNA swab taken from JD1 occurred in one in 113 billion DNA profiles. In January 2006, JD1 was shown a photo lineup containing appellant's photo and identified him as her assailant.

According to a Comcast Cable representative, no Comcast jobs were scheduled or completed at JD1's address on the day of the assault.

JD2 Offenses

On the evening of November 17, 2005, JD2 drove her van to the area of East 20th Street and and 23d Avenue in Oakland to buy crack cocaine. When JD2 parked and told "Moe" she wanted to purchase crack, he directed her to appellant. Appellant got into thefront passenger seat of JD2's van, gave her crack cocaine in exchange for $10 and asked her for a ride to the area of East 27th and Wallace Streets to meet his partner. She agreed. Appellant directed her to stop the van at a specific location; while he remained in the van, she told him she was going to go to the casino in Richmond. He then asked her to move her van a little farther down the street so his partner's mom would not get upset.

After JD2 moved the van to 2600 Wallace Street, appellant turned toward her and said, "Bitch, you finna . . . suck my dick." He then locked the van's automatic door lock and took a silver pistol from "out his back." At trial, JD2 said, "I really didn't see him take it. It hit the floor."⁵ Because she thought appellant was going to hurt her, she complied with his demand to orally copulate him. He then grabbed her, pushed her into the van's second row of seats, directed her to pull down her pants and raped her. At that point she did not know where the gun was and did not see it again. Appellant kept telling her to put her hands up where he could see them. He then demanded that she "hold [her] ass cheeks" and "hold [her] ass open" and successfully "tried to stick his penis in [her] rectum." She did not know how long his penis was inside her anus. Appellant then again forced JD2 to orally copulate him. He repeated the acts "over and over again." JD2 never hit him or tried to push him off of her because she knew he had the gun.

Appellant then drove JD2's van, with JD2 in the second row of seats, to the Embarcadero. En route, he told her she was lucky that he did not have "all his partners come and have sex with [her]." Appellant parked the van in a secluded construction area and he and JD2 then smoked some crack. He then directed her to orally copulate him. She complied because she knew he had a gun "and it was a possibility that [she] could die." Appellant then raped and sodomized her again.

Appellant then began driving the van; JD2 moved into the front passenger seat. She unsuccessfully attempted to jump out of the van at Lakeshore. Appellant told her if she did that again he would "kill [her] ass." When they stopped at a traffic light, shejumped out of the van. Appellant then gunned the engine and drove off onto the freeway. JD2 walked to a nearby gas station where she unsuccessfully sought help. She then walked to the hospital.

At the hospital, JD2 was examined by SART practitioner Hillary Larkin. Larkin opined that her examination was consistent with the history given by JD2. The oral and vaginal swabs taken from JD2 matched appellant's DNA. Thereafter, JD2 was shown a photo lineup and identified appellant as her assailant.

The Defense

Testifying in his own defense, appellant said he...