People v. Davis, A111960 (Cal. App. 7/12/2007), A111960

Decision Date12 July 2007
Docket NumberA111960
PartiesTHE PEOPLE, Plaintiff and Respondent, v. TRENT DAVIS, Defendant and Appellant.
CourtCalifornia Court of Appeals

Page 1

THE PEOPLE, Plaintiff and Respondent,
TRENT DAVIS, Defendant and Appellant.
Court of Appeals of California, First Appellate District, Division One
July 12, 2007

Appeal from the San Mateo County Super. Ct. No. SC042645


Defendant was convicted following a jury trial of attempted murder (Pen. Code, §§ 664/187, subd. (a)), assault with intent to commit forcible oral copulation (Pen. Code, §§ 220, 288a, subd. (c)), attempted forcible oral copulation (Pen. Code, §§ 664/288a), three counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)), and false imprisonment (Pen. Code, § 236), with associated enhancements for personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)).1 The trial court subsequently found that defendant suffered prior convictions (Pen. Code, §§ 1170.12, subd. (c)(1), 667, subd. (a)), and served a prior prison term (Pen. Code, §667.5, subd. (b)). He was sentenced to an aggregate term of 27 years in state prison.

Defendant argues in this appeal that evidence of two uncharged sexual assaults was erroneously admitted by the trial court, proffered defense impeachment evidence was improperly excluded, and a prior prison term enhancement should have been stricken rather than stayed. In a supplemental brief he adds the argument that the court violated his due process and jury trial rights under Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham), by imposing an upper term on count 1. We conclude that the trial court's evidentiary rulings were not an abuse of discretion, and no prejudicial sentencing error occurred in the imposition of an upper term on count 1, but we must strike the Penal Code section 667.5 prior prison term enhancement. The judgment is otherwise affirmed.


The Charged Offenses

The victim of the charged offenses, Tamara,2 joined friends at Molloy's bar in Colma at about 9:00 p.m. on December 18, 1997, to play a "trivia game." The trivia game ended between 10:30 and 11:00 p.m., whereupon Tamara and her friends went to the Burlingame Station bar in Burlingame between 11:00 and 11:30 p.m. to play pool. Tamara left her car at Malloy's bar. After an hour or more at Burlingame Station, Tamara noticed a friend, John Patterson, the manager of the Fish Market restaurant where she formerly worked. Patterson introduced Tamara to his friend, defendant. Patterson convinced Tamara to meet him and defendant at another bar a few blocks away known as "the Tavern" when she finished her pool game.

Tamara walked to the Tavern to join Patterson and defendant. They talked there for 10 or 15 minutes before Tamara mentioned that she "should get back" to her friends at Burlingame Station. Patterson and defendant then walked with Tamara back to Burlingame Station, where they discovered the bar was closed and her friends were gone. Patterson offered to drive Tamara "home," but suggested they first visit a nearby candy store he owned with his sister. At the store, they ate candy, and at Patterson's suggestion Tamara took two "Beanie Babies." Defendant "grabbed a whole bunch" of Beanie Babies and put them in a bag.

After 30 minutes to an hour in the candy store, they took a cab to a liquor store to purchase alcohol. They returned to the candy store for a while, then Patterson drove them to his house in Belmont. Tamara "really wanted to go home," but Patterson insisted that she "hang out" with them and "go to his house for a little bit." Tamara was reluctant, but "felt really guilty" after eating candy and taking Beanie Babies from Patterson, so she agreed. Patterson was aware that Tamara did not have cab fare. He offered to give her "money to take a cab home" from Belmont to her car in Colma.

They arrived at Patterson's home around 2:30 a.m. Tamara "kept saying" that she was "really cold, tired, wanted to go home," but she did not want to immediately insist that Patterson call a cab for her. Defendant offered Tamara his sweatshirt, which she accepted. She spoke with defendant, who mentioned that he "had a nine-year-old boy and a ten-year-old girl." He also "said he was a model for Playgirl" magazine. After one of Patterson's roommates began angrily "screaming and yelling and swearing" that they "were making a lot of noise," Tamara "just really wanted to go home." She "was afraid of the roommate," and waited by the door until she could leave.

Finally, Tamara "firmly" told Patterson, "I really want to go home; I need a cab." Patterson called a cab, which arrived at his home 15 minutes later, about 4:00 a.m. He also gave Tamara $20 for cab fare, and asked her not to tell defendant that he "gave this to her." Tamara intended to take the cab directly to her car parked in Colma. As she "said goodbye and turned to the door," however, defendant asked if he could "share a cab" with her. Tamara agreed, as defendant lived in San Mateo, so "it was right along the way" to Colma. Tamara testified that both Patterson and defendant had been "very polite, very nice" during the evening, although they both, and Patterson in particular, did not seem to want her to leave.

Tamara and defendant rode in the cab to defendant's house in San Mateo. They both thought the cab driver acted "really strange" during the cab ride; he did not respond to anything Tamara said. Although Tamara planned to have the cab driver leave defendant at his home and continue alone in the cab to Colma, defendant repeatedly mentioned that he had a "cab driver friend" who could drive her to her car. When they arrived at defendant's house, he forcefully reiterated that the cab driver was "very strange" and unsafe. He suggested that Tamara come inside, where he offered to call his friend to pick her up. Tamara "trusted" defendant, who "was very polite" all evening, and thought his suggestion was a "far better alternative" to continuing the ride with a cab driver who "didn't listen to anything" she said.

They arrived at defendant's house, which he occupied with his two children and a roommate. Defendant awakened his two children who were sleeping on a sofa in the living room, and directed them to a bedroom. At Tamara's request, defendant then appeared to place a telephone call to a cab company. Tamara noticed that defendant did not give his address during the conversation, but defendant explained, "he's my friend, he knows where I live." While Tamara waited for the cab, they sat on the couch. Defendant talked "about his modeling career" and displayed photographs of himself and his family. When defendant began to show her nude photographs of himself from Playgirl magazine she "thought he was a little perverted," but still "didn't think he was any danger" to her.

After at least 20 minutes passed, Tamara said, "I'm going to call a cab." Defendant replied "no, I'll go ahead and call my friend again." After ostensibly making another phone call to the cab company defendant told Tamara "there was an accident," and the cab driver would arrive in "five or ten" minutes. Tamara "settled back down" and fell asleep while seated on the couch.

When Tamara awoke, she found defendant "completely naked," sitting on her, "and he was masturbating." Defendant declared, "Suck my cock." When Tamara refused, defendant grabbed a black baton, held it over her head, and clenched his jaw. Tamara replied, "okay okay, okay, I'll do whatever you want." Defendant put the baton down and said, "Put it in your mouth." Tamara pretended to be agreeable. She told defendant, "first I have to use the bathroom and take care of some things, and then I can have sex with you." She hoped to "run away" if defendant allowed her to get up from the couch. When defendant lifted some of his weight from her, Tamara "slipped out from beneath his legs" to run for the door.

As Tamara attempted to escape, defendant grabbed her and ripped off her sweater and shirt. Tamara found herself on her hands and knees on the floor. Defendant jumped on her back and flattened her face down on the floor. He put a plastic bag on her face as he pushed her against the floor so she could not move. Tamara could not breathe through the plastic, although she kept "thrashing and fighting." She began "losing consciousness," and thought she "was dying." She "couldn't move" her hands, and "tried laying still." Finally, Tamara "just thrashed really hard one more time," and managed to momentarily get the bag away from her mouth to take a breath.

Defendant replaced the bag on Tamara's mouth, and with one hand tried to wrap a cord around her throat or face. Tamara was able to free one of her hands and pull the plastic bag away from her mouth so she could get another breath. She also screamed as loud as she could. Defendant continued to push the plastic bag against her mouth and "tighten the cord" around her neck.

Defendant's roommate Charles Renfroe ran into the room. Tamara testified that Renfroe hollered at defendant, "you have to stop doing this. You can't keep doing this. You need to let her go." Defendant answered: "[S]he's just a hooker that I picked up. She wants me to do this to her. Go back to bed, Charles." Tamara screamed to Renfroe, "it's not true," and implored him not to leave her.

Renfroe again told defendant to "let her go." When defendant did not respond, Renfroe attempted to pull defendant away from Tamara. As they struggled on the floor Renfroe again pled with defendant, "Let this one go." Defendant yelled to Renfroe: "It's too late. Go back to bed. It's too late. She'll go to the cops. I have to finish." Defendant continued to hold Tamara by the head and pin her to the ground. During the struggle they rolled into the Christmas tree and the packages under it were strewn about. Defendant had Tamara's hair "balled up in his hand."

Defendant's daughter Amanda then entered the room and exclaimed, "I'm going to call 911."3 Defendant...

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