People v. Adams

• Decision Date: 12 October 1993
• Docket Number: No. H009744,H009744
• Citation: 19 Cal.App.4th 412,23 Cal.Rptr.2d 512
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dean Julius ADAMS, Defendant and Appellant.

Page 512

23 Cal.Rptr.2d 512

19 Cal.App.4th 412

The PEOPLE, Plaintiff and Respondent, v. Dean Julius ADAMS, Defendant and Appellant.

No. H009744.

Court of Appeal, Sixth District, California.

Oct. 12, 1993.

As Modified Nov. 9, 1993.

Rehearing Denied Nov. 10, 1993.

Review Denied Jan. 13, 1994.

[19 Cal.App.4th 418] Mark D. Greenberg, Berkeley, for defendant and appellant (Under appointment by the Court of Appeal).

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Sharon G. Birenbaum, Stan M. Helfman and Christopher W. Grove, Deputies Atty. Gen., for plaintiff and respondent.

PREMO, Acting Presiding Justice.

Appellant Dean Julius Adams was convicted of multiple counts of sexual assault with various enhancements. He was sentenced to a term of 59 years in state prison. He raises four issues on appeal: (1) the conviction was based on partially false testimony; (2) the provision of Penal Code section 868.5 for "support persons" for sexual assault victims is unconstitutional; ¹ (3)

the trial court's instruction on "acting in concert" misstated the law by implying that "aiding and abetting" was synonymous with "acting in concert"; and (4) there was sentencing error. We agree there is sentencing error, modify the judgment, and affirm.

FACTS

On October 20, 1990, 16-year-old Jamie M. got off work 2 hours early at the Taco Bell in Gilroy. Her father was not home to receive her telephone call to pick her up, so she stayed at the Taco Bell to eat.

While she was eating, she saw appellant, a co-worker, and Santiago Ponce, one of the managers, drive up. Jamie enjoyed a mild on-the-job flirtation with appellant, "[l]ike bumping into him, teasing, joking around. [p] [ ] [I]f I was passing by, I would kind of nudge him to the side." Jamie also flirted with other people, but she ignored Ponce's overtures "[b]ecause he was my manager, and because I had known he was married."

Jamie's conduct caused appellant to respond. He testified that he thought that she was "interested in [me] in a boy-girl type of situation" and he was "interested" in a "relationship" with her ever "[s]ince I met her...." Two days before the incident, "she actually grabbed my bottom."

Appellant engaged in titillating conduct also. On one occasion during a discussion of tattoos, Jamie testified, appellant "pulled his pants down to show us." The tattoo was "pretty close to his groin." It said "love" and "had an arrow pointing to his penis." ²

On October 20th, Ponce and appellant had gotten off work about 6 p.m. They spent two hours at a nearby pizza parlor drinking two or three pitchers of beer, then decided to return to the Taco Bell to eat. Ponce went into the restaurant, but appellant's friend Jimmy Blanco drove up, and he and Blanco decided to try to get some marijuana. Jamie came outside, and accepted appellant's invitation to go with them on condition that they get her home before 10:30 p.m.

The three drove off, but the plan to steal some marijuana plants was frustrated "[b]ecause the guy's car was in the driveway...." They returned to the Taco Bell and Jamie and appellant transferred to Ponce's car to accompany him to the pizza parlor.

Appellant and Ponce drank three or four pitchers of beer. Jamie, a diabetic who had only drunk alcohol twice before, and who had gotten intoxicated once before on two beers, drank and felt sick on five to six glasses of beer. She did not want to drink that much, but Ponce had insisted he would not take her home until she finished the beer. Other than that, the atmosphere was friendly and they joked, watched television, and played music on the juke box.

The subject of rape came up. Ponce said that "the lady who was giving the broadcast had been raped and she had not done anything about it.... [T]he scene changed to a guy giving, like, a live presentation type thing, and [appellant] had said that that was the guy who did it and they both started to laugh. [p] [ ] I laughed with them."

Before they left the pizza parlor, Jamie felt "sick to [her] stomach" and "couldn't walk straight." However, she accompanied appellant to a nearby Quick Stop store to buy cigarettes. On the way there, he kissed her. She pushed him away and said "no." He said, "come on," and that he knew she "wanted it." Jamie said that she did not. When they got back to the pizza parlor, appellant asked her to go out with him. Jamie replied that she already had a boyfriend. He responded, you want a man Appellant, Ponce, and Jamie left the pizza parlor around 10:30 p.m. Jamie felt light-headed and sick. She was not stable on her feet and had to be helped to the car. She told Ponce and appellant to take her home. She got into the back seat of the car, as did appellant. Then she "threw up" and "passed out." She had no idea of how long she was out, but awoke momentarily and remembered hearing appellant, who was then in the front seat, telling Ponce how to get to Coyote Lake. She passed out again, woke again, and by then they were stopped. ³

not a boy. Jamie did not answer. She had never hinted that she wanted to go out with appellant.

They were in an isolated, hilly area. There were no lights or other persons around. Ponce climbed into the back seat, pulled down her pants and underwear, and put three or four fingers into her vagina. Jamie was a virgin and no one had put fingers in her before. Her vagina bled. The front passenger seat was folded forward, and appellant was sitting on its back with his feet in the rear footwell, holding down her hands. He told her that if she did not "cooperate" she would be killed. Ponce "bragged" to appellant about how many fingers he put inside her. Jamie was crying and terrified and no longer felt drunk.

Ponce and appellant got back in the front seat and drove to another isolated location. Jamie was crying. Ponce and appellant got out and dragged Jamie out of the back seat. Appellant ordered her to take off her clothing but she refused. Appellant removed her clothes and "tossed" her to the ground while she kicked and screamed and tried to hold on to her pants. Ponce held down her arms while appellant raped her, then Ponce sodomized her.

Ponce and appellant withdrew a short distance and talked together, but Jamie could not hear what was said. She did not try to escape because appellant had threatened to run her down and kill her if she even tried to run away. However, when she complained that she was cold, appellant removed a work shirt from the car trunk and gave it to her.

Appellant also removed a tire iron from the trunk. Ponce testified that appellant said they ought to kill Jamie because she knew their names. At first Ponce "was going for it," but he started thinking "it's not a godly thing." He shared this thought with appellant, who responded: "God is not involved. The devil is involved right now." However, appellant contented himself with throwing the tire iron at Jamie; it landed within inches of her head.

Appellant insisted that they walk up a steep hill. He told Jamie it would kill the sperm and she would not get pregnant. Appellant testified that he had in mind taking Jamie and Ponce to a hot springs, but he did not tell them. They did not make much progress because Jamie kept falling. Appellant felt that Jamie and Ponce "didn't want to go, so they were all lugging along." "[I]t upset me that they wasn't trying. I was just going to leave them for the fucking boars to eat." Jamie testified that appellant said he would leave her there so the boars could eat her.

Jamie stopped walking, and they went back down the hill. Jamie heard Ponce saying he felt sorry for her and he wanted to take her home. Appellant said: "so do I, but I came out here to do something, and I planned to finish something that I had planned to do."

After some discussion, they drove to Ponce's motel. Jamie was in the back seat. Ponce thought she was "like, shocked. [p] [ ] [I]t's like she didn't think it happened, and she didn't really care no more. All she was probably thinking about was going home." Appellant told her that the motel was far away from her house, so she should not try to run away because she At the motel, Jamie took a shower. She thought she had locked the door, but Ponce entered the bathroom. "He bit me on the cheek because I wouldn't play with him. He strangled me and threw me against the bathroom wall." Then he sodomized her.

would only get lost. Jamie did not know that it was only a few blocks from her father's apartment in Gilroy.

Ponce left the bathroom and appellant entered. He told her to cooperate one more time and they would take her home. She cried and begged to be taken home immediately, but he refused.

They left the bathroom. Appellant told Ponce she wanted to "fuck." Ponce asked her if it was true, and because she was afraid, she said, "yes." She and appellant then had vaginal intercourse on the bed, but she was screaming and crying and saying "no." Afterwards, appellant put his mouth on her vagina. Ponce was in the living room. When appellant was finished, Jamie felt sick and curled up in a ball. She went into the bathroom and vomited, then cleaned up and lay down on the bed again.

Jamie asked to be taken home, but Ponce was asleep on a couch in the living room, and appellant said they had to wait until morning. Appellant also said that he could not believe he had done that, that he was sorry.

Appellant went to sleep on the bed with Jamie lying next to him. Jamie thought about leaving, but when she tried to get up, appellant would stir as though about to wake up. Jamie did get up and go to the bathroom to vomit three or four times that night, but did not wake appellant or Ponce.

They all awoke the next morning about 8 a.m. Jamie testified that "[t]hey were running around the motel room gathering clothes. [p ][ ] They said they were going to go to the laundromat," but they also "acted normal, like nothing had happened."

App...