The People v. Badio

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THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER BADIO, Defendant and Appellant.

B319351

California Court of Appeals, Second District, Eighth Division

May 11, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. No. LA086982 Martin L. Herscovitz, Judge. Affirmed.

Cynthia L. Barnes, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

STRATTON, P. J.

Defendant and appellant Alexander Badio was convicted of multiple crimes after sexually assaulting two women. On his first appeal, we affirmed his convictions but remanded for resentencing. In this appeal, Badio contends his indeterminate sentence of 30 years to life constitutes cruel and unusual punishment in violation of the California Constitution and the Eighth Amendment to the United States Constitution. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On two separate occasions in early 2017, Badio approached a vulnerable woman and offered her assistance, then sexually assaulted her. With respect to M.A., Badio was convicted of sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1))^[1] (count 1); rape of an unconscious person (§ 261, subd. (a)(4)) (count 2); and assault with intent to commit a felony (§ 220, subd. (a)(1)) (count 3). As to D.O., Badio was convicted of sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1) (count 5); sexual battery with restraint (§ 243.4, subd. (a)) (count 6); false imprisonment by violence (§ 236) (count 7); rape (§ 261, subd. (a)(2)) (count 8); and dissuading a witness (§ 136.1, subd. (b)(1)) (count 10). Additionally, the jury found true the special allegation that counts 1, 5, and 8 were committed against more than one victim.

Because the constitutional claim Badio raises requires consideration of the nature and circumstances of his crimes, we adopt the statement of facts from our first appeal in this matter. (People v. Badio (Aug. 26, 2020, B298367) [nonpub opn.].)

I. Prosecution's Case-in-Chief

A. D.O.

D.O. testified that in February 2017, she was an 18-year-old student staying in Los Angeles without family or close friends nearby. Badio approached her while she was waiting for her bus near the North Hollywood train station. He said he was a personal trainer and promised to give her a membership to his gym so that she could work out with him.

D.O. and Badio scheduled a workout for February 24, 2017. That night, he picked her up at a convenience store. She believed they were going to go to a gym. He drove around for approximately one hour, then parked the car and told her that he would give her a massage before their workout. D.O. did not agree to a massage. Badio pulled out massage oil or lotion and began touching D.O.'s breasts and vagina underneath her clothing. He kissed her, but she did not kiss him back. Badio inserted his fingers into her vagina, causing her pain. D.O. told him to stop several times before he stopped. She tried to get out of the car, but the doors were locked and Badio told her it was not safe outside.

Badio drove for another 30 minutes. More than once D.O. tried to get out of the car when they stopped at a red light, but Badio grabbed her arm and prevented her from leaving. It was late at night when Badio parked the car and angrily told her to get out of the car. D.O. was afraid, but she did not try to run because she was unfamiliar with the area.

Badio took D.O. into a house. She thought they were going to pass through the house and then go to the gym. Badio brought her into a bedroom, took her phone, dragged her onto a bed, and began touching her. He held her down on the bed with one arm and inserted the fingers of his other hand into her vagina. D.O. was crying and telling him no, but he did not stop.

Badio undressed D.O. and himself. He yelled at her and called her obscene names. He touched her all over her body, including her breasts, buttocks, and vagina. He placed his erect penis in D.O.'s vagina and thrust his body against hers while holding her down with his legs and hands. Badio unsuccessfully attempted to insert his penis into her anus, and then he reinserted it in her vagina. D.O. continued to cry and to tell him to stop, but he did not stop.

Badio instructed D.O. to fellate him, pulled her face toward his penis, and pulled her hair. D.O. turned her head away, but he pulled her back. Badio tried twice more to place his penis in her mouth but was unsuccessful. He inserted his fingers into D.O.'s vagina a third time, then placed his penis inside her vagina again. He held her down and painfully pushed his body against hers. Next, Badio removed his penis from D.O.'s vagina and briefly forced her to put her mouth on it. He inserted his penis in D.O.'s vagina a fourth time, and he slapped her, hard, on her back.

Badio forced D.O. to lie on the bed while he touched her. He would not allow her to dress and claimed not to know where her phone and purse were. D.O. told him she wanted to leave, but Badio told her it was too late at night and held her tightly so she could not leave the bed.

At some point, D.O. dressed and tried to leave. Badio blocked the door at first, but she was able to leave when he stepped away from the door to prevent her from finding her purse and phone. Badio followed D.O., called her names, told her not to call the police, and threatened he would find her if she reported him to the police. D.O. feared Badio would harm her.

D.O. eventually reported the incident to the police and underwent a limited sexual assault examination. The forensic nurse examiner who examined her testified that D.O. had redness, bruising, and abrasions in the genital area consistent with repeated nonconsensual digital and penile penetration. D.O. complained of tenderness, and the pelvic examination was so painful for her that the examiner could not insert a speculum to perform an internal examination.

B. M.A.

M.A. testified that as of early 2017 she was a college student without stable housing: she showered at a gym and slept on the Red Line train, at a North Hollywood fast food restaurant, or in the gym. She did her homework at the school library until it closed for the night, at which time she studied at a coffee shop. She had no money, and she carried her possessions in a rolling suitcase.

In February 2017 M.A. met Badio while she was on her way to the coffee shop after the library closed. She accepted his offer of a ride because she was encumbered by her suitcase. Badio also offered to buy M.A. a meal. M.A. thought Badio was "okay at first." He bought her coffee and told her about himself. M.A. thought, "[T]his is okay. This is safe enough." M.A. never told anyone that she was homeless, but she told Badio that she was "in between places" to live.

Badio offered to let M.A. sleep in his car, and he drove them to a park. She awoke around 4:00 a.m. to the feeling of Badio touching her back. M.A. angrily demanded he drive her to the coffee shop. Angered by M.A.'s reaction, Badio called her a profane name. He drove her to the train station.

A few weeks later, Badio saw M.A. on the train and invited her to come home with him; she declined the offer.

On the night of March 12, 2017, M.A. had a lot of homework. She was headed to the coffee shop when Badio approached her and suggested that she come to his house, "no strings attached." The offer appealed to M.A., because, she explained, "I needed to do my homework. I needed a place to sleep. I was hungry, and . . . I didn't have the expectation he was violent. Maybe rude, but not violent." They collected M.A.'s belongings, purchased food, and walked to Badio's home. There, M.A. did her homework on Badio's bed while he cooked.

Later that night, after they ate, M.A. dozed off while doing her homework. She awoke to find her clothing unfastened and Badio over her, trying to push her legs open. M.A. testified that he was "easing into my, you know, pelvis area. My legs were open, and he didn't have . . . really any clothes on. Him trying to, like, push his self on me." Badio tried to put his erect penis into her vagina. M.A. testified, "[H]e pushed my legs open and I could not close them." Her movement was restricted when Badio held her legs open.

M.A. testified that she recalled telling the police on the night of the incident that Badio had digitally penetrated her, but by the time of trial she could not "see it in [her] mind." She had a clear visual memory of Badio pushing her legs open and trying to enter her vagina, and she remembered that Badio "tried to touch [her] vagina with his hand." M.A. could not remember if Badio put his hand on her vagina before or after he attempted to insert his penis, and she struggled to remember exactly what he did with his hand: "I-I somewhat remember him trying to-grazing at my-his hand against my thigh and my vagina and-but I don't completely remember. I have to be honest. Maybe because I'm nervous, but I really don't-."

M.A. demanded that Badio stop, and he complied after approximately two minutes. Badio told M.A. in an aggressive tone to stop playing; he dressed and left the room. M.A. resumed her homework.

Later Badio and his roommate came into the bedroom to go to sleep. M.A. kept her clothes on and positioned her body so that her head was near Badio's feet to discourage him from any further sexual advances. Badio became angry and instructed her to lie in the other direction. M.A. felt uncomfortable but did not leave because she did not want to be outside in the...