People v. Dearborne

246 Cal. Rptr. 3d 63, 34 Cal. App. 5th 250
CourtCalifornia Court of Appeal, 5th District
DecidedMarch 21, 2019
DocketG054763
StatusPublished
Cited by46 cases

This text of 246 Cal. Rptr. 3d 63 (People v. Dearborne) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Dearborne, 246 Cal. Rptr. 3d 63, 34 Cal. App. 5th 250 (Cal. Ct. App. 2019).

Opinion

IKOLA, J.

*253A jury convicted defendant of human trafficking ( Pen. Code, § 236.1, subd. (b) ; count 1);1 kidnapping to commit a sex offense (§ 209, subd. (b)(1); count 2); two counts of forcible rape in concert (§ 264.1, subd. (a); counts 3 & 4); two counts of forcible oral copulation in concert (§ 288a, subd. (d)(1); counts 5 & 6); second degree robbery (§§ 211/212.5, subd. (c); count 7); two counts of pimping (§ 266h, subd. (a); counts 8 & 11); and two counts of pandering (§ 266i subd. (a); counts 9 & 12). The jury also found that in the commission of the crimes charged in counts 3, 4, 5 and 6, defendant kidnapped the victim within the meaning of section 667.61, subdivisions (a) and (d)(2). Defendant admitted he had a prior strike (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), a prior serious felony conviction (§ 667, subd. (a)(1)), and three prison priors (§ 667.5, subd. (b)).

The court sentenced defendant to state prison for 205 years to life plus 28 years. The sentence was comprised of the following: 50 years to life on the principal count - count 3 (rape in concert with kidnapping); a consecutive term of 50 years to life on count 4 (rape in concert with kidnapping); a consecutive term of 50 years to life on count 5 (oral copulation in concert with kidnapping); a consecutive term of 50 years to life on count 6 (oral copulation in concert with kidnapping); a consecutive term of 28 years on count 1 (human trafficking), which was the 14-year-midterm, doubled because of defendant's prior strike; a concurrent term of six years on count 7 (robbery), which was the three-year midterm doubled because of *66defendant's strike; two concurrent terms of eight years on counts 8 and 11 (pimping), which was the four-year midterm doubled because of defendant's strike; and *254a consecutive five-year term for the prior serious felony. The court imposed a seven-year term on count 2 (kidnapping to commit sex offense) but stayed execution of sentence pursuant to section 654. The court also stayed execution of sentence on counts 9 and 12 (pandering) pursuant to section 654. The court struck the three one-year terms for the prison priors.

Defendant kidnapped a victim, raped her, then forced her into prostitution. On appeal defendant contends the evidence was insufficient to show forcible rape because the two rapes at issue were accomplished by threats, a lesser offense, not force. Defendant also contends he cannot be liable for rape in concert because there was no evidence the victim's "customer" (the john) was aware the intercourse was without the victim's consent. Thus, the argument goes, the john did not commit rape, and defendant, therefore, cannot have committed rape in concert with the john. We conclude substantial evidence supports the verdict on both fronts.

Defendant also argues there was instructional error. He contends the instructions on forcible rape were unclear, but he forfeited that objection by failing to raise it at trial. He also contends the jury should have been instructed on mistake of fact as to the john's belief about the victim's consent. That was not his theory at trial, however, and there was no evidence to support mistake of fact. To the contrary, the uncontroverted evidence was that the victim told the john she did not want to have intercourse. Accordingly, the court had no sua sponte duty to instruct the jury on mistake of fact.

Finally, defendant raises various sentencing issues. First, defendant contends the court misunderstood it had discretion to impose the sentences on counts 3, 4, 5, and 6 either consecutively or concurrently. We agree. Second, we agree with defendant that the sentence on count 8 (pimping) should have been stayed pursuant to section 654. Third, the people concede defendant is entitled to two additional days of credit for time served, and we concur. Fourth, defendant argues he was entitled to conduct credit. There, we disagree. Finally, in a supplemental brief defendant contends he is entitled to a remand so the court may exercise its newly granted discretion to strike the five-year enhancement imposed pursuant to section 667, subdivision (a)(1). The People concede that issue, and we agree. We will remand the matter for resentencing.

FACTS

Yolanda (Counts 1-9)

In July 2015 the victim, Yolanda, and her boyfriend, who were homeless, were walking on either Beach Boulevard or Garden Grove Boulevard in *255Stanton at approximately 5:00 p.m., when defendant and his female companion, Destiny, offered them a ride. Yolanda reluctantly accepted and defendant dropped them off at a motel. A short while later, Yolanda and her boyfriend were "out and about" and got into an argument. Yolanda was walking back to the motel alone when she heard Destiny calling to her. Destiny invited Yolanda and her boyfriend to go with her and defendant to watch fireworks and offered to get them marijuana. Yolanda's boyfriend did not want to go but told Yolanda to go so she could get the marijuana. Yolanda went with defendant and Destiny.

After they watched fireworks and got marijuana, Yolanda told defendant and Destiny that she wanted to go home. But instead of taking Yolanda back to the motel, *67defendant drove to a parking lot in a loading dock area where they drank alcohol and smoked marijuana. Yolanda did not want to drink the alcohol but defendant made her drink it anyway. Yolanda again told defendant that she wanted to go home. Defendant told her she was not going home.

While they were in the car, Destiny began to orally copulate defendant. Yolanda told them "that was gross." At some point while Destiny was doing this to defendant, defendant began touching Yolanda's legs and breasts. Yolanda felt very uncomfortable and asked defendant to stop several times. Defendant ordered Yolanda to take off her clothes. When Yolanda refused, defendant told Destiny to get "the gun," and Destiny complied. Defendant held the gun to Yolanda's side and said, "Bitch, take off your clothes." Yolanda got undressed. Yolanda was afraid of defendant because he had a gun and was bigger than her. The "gun" was actually a phone charger, but Yolanda believed it was a real gun. It was dark inside the car.

Defendant got out of the car and got into the back seat with Yolanda and put on a condom. He then ordered Yolanda to orally copulate him. She did not want to do this and told defendant she did not want to, but she complied "because of the gun that was in the car." Yolanda was crying and gagging as she orally copulated defendant. Defendant ordered Yolanda to lay down on the back seat and he raped her. Yolanda cried and told defendant to stop several times. When Destiny said it was her turn, defendant and Destiny pinned Yolanda in the back seat and had sex on top of her. Defendant ordered Yolanda to put her mouth on Destiny's breasts.

After that, defendant got out of the car, opened the trunk and told Yolanda that she was "going to get dolled up." He told her she was going to be an escort and "vaguely explained" to her what that meant. Yolanda told defendant that she did not want to have sex with other men or be an escort. Defendant ignored her.

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Cite This Page — Counsel Stack

Bluebook (online)
246 Cal. Rptr. 3d 63, 34 Cal. App. 5th 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dearborne-calctapp5d-2019.