People v. Huber

• Decision Date: 30 April 1986
• Citation: 181 Cal.App.3d 601,227 Cal.Rptr. 113
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Ellis HUBER, Defendant and Appellant. A026447.

Page 113

227 Cal.Rptr. 113

181 Cal.App.3d 601

The PEOPLE, Plaintiff and Respondent, v. John Ellis HUBER, Defendant and Appellant.

A026447.

Court of Appeal, First District, Division 4, California.

April 30, 1986.

As Modified on Denial of Rehearing

May 27, 1986.

Review Denied Aug. 14, 1986.

Andrew H. Parnes, Nolan & Parnes, Palo Alto, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Linda Ludlow, Cynthia Choy Ong, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

POCHE, Associate Justice.

John Ellis Huber appeals from a judgment of conviction entered upon jury verdicts finding him guilty of 26 felony counts the majority of which were sexual offenses, and numerous enhancements. ¹ He was sentenced to state prison for the aggregate term of 106 years and 4 months. We affirm in all respects.

I. The Evidence

Because the 26 felony crimes occurred on 4 separate dates over a 22-month period and involved 6 female victims, the evidence is best grouped by date.

A.

The Prosecution's Case

March 29, 1981 (counts 1-13)

In March of 1981, Kathryn B. and Victoria D. lived together in a downstairs apartment at the Cardiff Garden Apartments in Campbell. On March 29, Victoria went to sleep about 10 p.m.; Kathryn arrived home from work the next morning about 1 a.m. Kathryn was later awakened by the sound of creaking floorboards. When she asked if it was Vickie, a man's voice answered " 'Yes.' " Realizing it was not Victoria, Kathryn screamed for her roommate. The man "jumped" on the bed, placed his hands on Kathryn's throat, and said, " 'Shut up or I'll kill you.' " Hearing Victoria stirring in the other room, the man directed Kathryn to reassure her; she did. Victoria heard Kathryn say, " 'It's okay. It's all right. Just come here.' " Victoria paused at the doorway to Kathryn's bedroom and saw a man wearing a cowboy hat.

Victoria asked the man who he was and what he wanted. He explained " 'I am here. I only want to hide. Didn't you hear the gunshots? I am not going to hurt you. I only want to hide.' " He told Victoria to sit down, then walked into the hallway to look for something. Carrying a gun, he walked back into the bedroom and reiterated that he was not going to hurt them. " 'I am just here to hide. There was some people chasing me and I just need to hide.' " He then ordered Victoria to lie on the bed and checked each woman for guns. He then ordered Victoria to remove her shift and "checked" her again for weapons. He again asked the women if they had any guns in the house and also asked if they had any drugs. To each question they answered no.

He then told the women that he had recently been released from San Quentin and it would not bother him to kill again. He also stated that he had "changed his mind" about hurting the women.

He blindfolded the women with long dresses from the closet and then stated, " 'I want you girls to get each other off. I want you to go down on each other. I know you are lesbians and have done it before.' " First he forced Kathryn to perform the act upon Victoria, ordering her to "move" her head more, and saying he wanted to see "more action." At the same time, he ran his hands and the gun over Victoria's body. He then ordered Kathryn to stop and directed Victoria to perform the acts upon Kathryn. He also directed the women to masterbate and kiss each other. During these times, he called the women "honey" or "blondie" or "sweetheart." In order to appease him, they feigned having an orgasm.

He layed down on the bed and ordered Victoria to orally copulate him. He then ordered Kathryn to orally copulate him and he simultaneously masturbated her. He also inserted his gun into the vagina of each woman.

Finally, he ordered the women to lay on their stomachs. Using the telephone cord, he bound their hands and feet behind their back and then tied the women together. He then asked for their purses, retrieved them, and they could overhear him rifling through them. He mentioned that he would have to take the women's driver's licenses in case anything "happened" to him.

He gagged them and claimed to be sorry for what he had done. He then stated he would look around to see if it were clear for him to leave and threatened to shoot them if they moved. He returned in a minute saying, " 'You didn't move. Good girls.' " They heard footsteps then the sound of a car being driven away. They waited a few minutes, then loosened the gags and the cords and drove to the police station.

Later, Kathryn discovered that $35-50 in cash and her driver's license were missing from her purse; missing from Victoria's purse were $74 in cash and a blank check.

The police determined that the man had entered the apartment through the front window by prying it open with a sharp object. Defendant's palmprint was found on the telephone in the bedroom.

Neither woman was able to identify the perpetrator. Each stated that he spoke with "sort of a drawl" like "cowboy talk." At one point in the evening, Victoria overheard the man use the name, " 'Johnny.' "

March 26, 1982 (counts 14-16)

In early 1982, Shawn B. lived in a ground floor apartment at 215 Union Street in Campbell. Upon completing her work as a bartender at the Black Kettle Restaurant, located near the Lariat Club in The Factory in Campbell, she returned home about 11:30 p.m. on Thursday, March 25, 1982. She fell asleep about 3 a.m. Sometime thereafter, Shawn heard a crash in the apartment; she checked the kitchen and living room but found nothing. She went back to bed. Semiconscious, she then heard her bedroom door "slam[ ] open" and a man's voice say, " 'Turn over, don't look at me. I have got a gun. You look at me, I will blow your brains out.' " The intruder wore a baseball cap.

Shawn rolled over on her stomach and the man jumped on top of her; the pillow was placed over her head. She felt what appeared to be the butt of a gun pressed to the back of her head. With some of her scarves, he blindfolded and gagged her. The man then turned on the bedroom light and allowed her to sit up.

The man walked around the bedroom "ranting and raving." He repeatedly told Shawn that he had broken into her apartment to seek refuge from some people that had "ripped him off" and shot at him during a large "cocaine deal" across the street. He removed the gag, but warned her not to scream. He then began to smoke a cigarette, allowed her to smoke also and sat down on the bed. She could smell bourbon on his breath. He engaged her in idle conversation, all the while reassuring her that he would leave as soon as he felt it was safe. Jumping from subject to subject, he asked if she had a boyfriend, or if she were a lesbian or if she had any "fantasies" about being molested. He told her that he had been in prison and that he "hated" women because "they abused him and belittled him because of his stature." ²

After he finished the cigarette, he ordered her off the bed so he could check to see if she had a "piece." After checking the bed, he ordered her to remove her bathrobe. When she refused, he told her to do what he told her to do. She thus removed her clothing and lay down on the bed. She heard him undo his zipper then he tried to separate her legs; when she resisted, he pinched her thigh harshly. Thinking it might be a deterrent, she suggested she had a venereal disease. He then inserted his penis into her mouth and warned that he would not leave until both of them had an orgasm. After several minutes, he turned her in a different direction and repeated the act. At some point she began to hyperventilate, and said she felt as if she were going to have a heart attack; he responded by choking her. Finally, he ejaculated and said it was safe for him to leave.

He asked where her purse was; she told him. He left the room then returned; she heard the contents of her purse being "dumped" on the ironing board. He asked if she had any money; she said no. ³ He said he would take her driver's license and that he would return it in three weeks if she did not contact the police. He mentioned something about not wanting to leave fingerprints, and apologized, claiming he felt "ashamed" for what he had done. She then heard him unplug the telephone and he proceeded to tie her arms and legs behind her back with the cord. He flushed the ashtray contents down the toilet, and told her to give him ten minutes before she tried to undo herself, and told her not to telephone the police.

She waited several minutes after he left then tried to undo the knots. She telephoned a friend who then summoned the police. Later she discovered that he had entered through the bathroom window which had been closed earlier that evening. ⁴ About three weeks later she found her driver's license on top of her newspaper.

July 15, 1982 (counts 17-25)

In July of 1982, Joyce M. and Lisa D. lived together in a ground floor apartment at the Shadow Oaks Apartments in Cupertino. In the early morning of July 15, Joyce returned home about 1:30 and went to bed Lisa was already asleep. Sometime thereafter, Lisa was awakened by a man in her bedroom; she panicked and hit him. He grabbed her, covered her mouth and nose, ordered her to be quiet and said he would not hurt her. When she said someone else lived in the apartment, he moved Lisa to Joyce's bedroom.

Lisa told Joyce the man "was serious" and to do what he said. The man told Joyce not to look at him, and then told the women that he would not hurt them. He stated that he was only "running from some people," that he had just made a "cocaine" deal which had gone awry and that he had been shot. He had entered their apartment to hide from the men who were chasing him.

He blindfolded the women with clothing and had them place pillowcases over their heads. He asked if they had a gun in the house. He then led the women to the living room where he had them lock the doors and disconnect the telephone. He continued telling them that he had been shot, which...