People v. Briseno
| Decision Date | 11 January 2021 |
| Docket Number | B297164 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. FRANK BRISENO, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA088460)
APPEAL from a judgment of the Superior Court of Los Angeles County, David W. Stuart, Judge. Reversed as to count two, remanded in part with instructions and affirmed in all other respects.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Frank Briseno of eight counts arising from the assault of victim Angela and the kidnapping and rape of victim Claudia. Appellant raises a staggering 24 issues on appeal, including multiple challenges to the admission of uncharged sex offenses against a third victim, Ashley; challenges to the assault conviction; arguments regarding the omission of lesser included instructions, and several claims regarding enhancements and sentencing. We agree with appellant that reversal of his conviction on count two for kidnapping is warranted, as it is a lesser included offense of his count three conviction for aggravated kidnapping. We otherwise reject his numerous assertions of error and affirm his convictions. However, we conclude that remand is appropriate to allow the trial court to exercise its independent discretion whether to strike the prior serious felony conviction enhancement. Conversely, defendant has forfeited any challenge to the imposition of fines and fees at his sentencing, and therefore we decline to remand on that additional basis. We also direct the trial court to correct the judgment with respect to certain fines and fees imposed.
On November 16, 2018, the Los Angeles County District Attorney filed an amended information charging appellant with the following nine counts: assault with intent to commit a felony (Pen. Code, § 2201; count one); kidnapping (§ 207, subd. (a); count two); kidnapping to commit rape (§ 209, subd. (b)(1); count three); four counts of forcible rape (§ 261, subd. (a)(2); counts four, five, seven, and eight); forcible oral copulation (§ 288a, subd. (c)(2);count six); and second degree robbery (§ 211; count nine). The amended information alleged that appellant committed count one against Angela on June 24, 2004, and the remaining counts against Claudia on July 12, 2004.2 The amended information further included One Strike kidnapping allegations under section 667.61 () and a firearm use enhancement under sections 12022.3, 12022.53, and 12022.5 (). Additionally, as to all counts, it was alleged that appellant suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)(1)).
The jury acquitted appellant on count eight and found appellant guilty on all other counts. The jury also found the enhancement allegations true. The court sentenced appellant to a total prison term of 50 years to life, plus 80 years, consisting of the following: on count one, the upper term of six years, doubled pursuant to appellant's prior strike, plus five years for the prior serious felony convictions (§ 667, subd. (a)(1)); on count four, a consecutive term of 25 years to life,3 doubled, plus additional consecutive terms of 10 years for the firearm enhancement (§ 12022.53, subd. (b)), and five years for the prior convictions(§ 667, subd. (a)(1)); and on counts five through seven, consecutive terms of eight years each, doubled. The court also imposed a 16 year term on count two, a life term on count three, and a 10 year term on count nine, but stayed those sentences pursuant to section 654. The court also imposed $140 in court security assessments, as well as a $200 restitution fine and a $200 parole restitution fine. Appellant timely appealed.
Angela testified that on the morning of June 24, 2004, when she was about 21 years old, she went for a run at El Cariso Park in Sylmar, California. As she was running, she noticed a man leaning against a tree and it "brought about a weird feeling in my stomach." She continued her run up a hill behind the golf course and felt someone coming up behind her. She moved to the side, thinking the person was going to pass her. As she did, the person put both arms around her and grabbed her from behind "like he was going to take me down." He then pulled her pants down to her thighs. Angela testified that she thought he was going to rape her. She said, "please, don't," and stepped backwards to push the man back, causing him to fall. Angela glanced back and saw the same man she had seen leaning on the tree earlier. At trial, she identified appellant as her assailant.
Angela testified that she ran away and called 911. She told the 911 operator that she was running in the park, and "a guy came up from behind me and he tried to . . . rape me." She also stated that he "tried to pull down my pants." She described her assailant as a Hispanic male in his 20's, with a medium build.
A few weeks after the attack, on July 12, 2004, the police showed Angela a photographic six-pack lineup. The lineup did not include a photo of appellant. Angela was unable to make an identification from the lineup. On July 16, 2004, she saw a news bulletin on television about a rapist with a photo of appellant. At trial, Angela testified that when she saw the news bulletin, "I knew it was the same person that did that to me." However, during cross-examination she acknowledged that she told the police on July 16, 2004 that she was not sure whether it was the same person who attacked her. Later that day, detective Teresa Curtis of the Los Angeles Police Department (LAPD) came to her house and showed her the same picture of appellant. At that point, Angela testified that she "felt that it was him," and began shaking and crying. Detective Curtis also testified that when she met with Angela and showed her appellant's photo, Angela "immediately started to shake and started to cry," and said that appellant was the person who assaulted her. At trial, Angela described her assailant as a Hispanic man in his mid-20's, with a fade haircut and mustache, wearing blue pants and a white shirt.
Hugh Hoopes testified that he was at the park with his child on June 24, 2004. He noticed a man coming from the direction of the golf course and "meandering" past him, and he thought it was "kind of weird" because he had not seen that man anywhere else in the park. He described the man as Hispanic, five foot six inches, between 150 and 180 pounds, in his mid-20's, wearing a white T-shirt and blue jeans, with a thin mustache. About 20 minutes later, the police arrived and asked him if he had seen anything suspicious. He told the police about the man, whom he said was acting suspiciously. The police also told Hoopes that someone had been raped in the park bathroom.
About two months later, he picked a photograph of appellant out of a six-pack lineup as the closest resemblance to the man he had seen.
In the afternoon on July 12, 2004, 20-year-old Claudia got off the bus near her home in Arleta, California, after a trip to the store. Claudia testified that as she started walking home, she noticed a "strange man" inside a gray Ford Focus looking at her. She identified that man at trial as appellant. Appellant got out of his car and asked if she wanted a ride home. She said no and kept walking. As she approached an alley, appellant stopped his car in the alley's entrance, got out of the car again, and came up behind her. Claudia said that appellant grabbed her around the neck, pointed a gun to her head, and told her to "get in the car and do not make anything complicated."
Appellant pushed her into the front passenger seat of the car and told her not to make any movements. He then drove the car a little more than halfway down the alley, which she estimated was about 18 houses into the alley from the street. Appellant parked the car with the passenger doors close to a wall so that Claudia could not get out. They sat in the car for five minutes without either one saying anything. Then appellant pulled down his shorts. He told Claudia to suck his penis and she complied.
After a few minutes, appellant pushed Claudia onto her side, removed her shoes, and pulled down her pants. He moved over to the front passenger seat on top of her and began penetrating her vagina with his penis. Claudia told the police that prior to penetrating her vagina, appellant spit into his hand as a form of lubricant. After a few minutes, appellant toldClaudia to move to the back seat. She complied, he followed, and then began penetrating her vagina with his penis a second time. After about five minutes, appellant moved Claudia from behind the driver's seat to behind the passenger's seat and began penetrating her vagina again. She stated that she was crying and asking him to stop, but he did not listen.
After several more minutes, he shifted her to the other side of the back seat again and began penetrating her vagina a fourth time. Claudia saw a green Jeep driving by the alley, and saw appellant looking at the driver. She started to try to give the driver a sign, but appellant told her not to do anything, if she did not "wanna die right there." During the incident, appellant's...
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