People v. Mobley

Citation85 Cal.Rptr.2d 474,72 Cal.App.4th 761
Decision Date28 May 1999
Docket NumberNo. D027985,D027985
Parties, 99 Cal. Daily Op. Serv. 4166, 1999 Daily Journal D.A.R. 5307 The PEOPLE, Plaintiff and Respondent, v. Robert Leroy MOBLEY, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Mark D. Greenberg, by appointment of the Court of Appeal, Oakland, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Esteban Hernandez and Nancy L. Palmieri, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, J.

In this opinion, we determine the trial court does not have a sua sponte duty to instruct the jury on the definition of "developmental disability" for convictions under PENAL CODE SECTIONS 288A1, subdivision (g) and 286, subdivision (g), respectively.

Robert Leroy Mobley was convicted by a jury of 17 counts of unlawful sodomy committed upon two young men in their early twenties who "because of a mental disorder or developmental or physical disability" were incapable of giving legal consent for such acts. (§ 286, subd. (g).) The jury found Mobley not guilty of unlawful oral copulation of one of the young men. 2 (§ 288a, subd. (g).) After a bifurcated court trial, Mobley was found to have previously suffered two out-of- Mobley appeals, raising claims of instructional error, insufficiency of the evidence to support his convictions and the truth of one of his out-of-state priors, error in the admission of his post-invocation statements and the ineffective assistance of counsel at the bifurcated trial on the prior convictions. We affirm.

state convictions that qualified as "strikes" under the three strikes law (§ 667, subds. (b)-(i)) and also constituted serious felony convictions within the meaning of section 667, subdivision (a)(1). The court sentenced Mobley to a total prison term of 435 years to life.

FACTUAL BACKGROUND

Because Mobley challenges the sufficiency of the evidence to support his convictions, we have viewed the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment. (People v. Silva (1988) 45 Cal.3d 604, 625, 247 Cal.Rptr. 573, 754 P.2d 1070; People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) Such evidence reveals that during the years between 1993 and 1996 Mobley befriended two developmentally delayed young men who were best friends and gradually committed various sexual acts with each over a period of time. It was uncontested the alleged acts of sodomy and oral copulation occurred. The major issue for the jury to resolve was whether the two young men, because of their disabilities, were capable of giving legal consent to the sexual acts Mobley committed upon them. The prosecution presented a case largely geared toward revealing the functioning mental state of the two victims.

Victim Stephen B.'s (Steve's) 3 brother and mother testified extensively regarding his mental functioning. His brother Derek J., who was 14 years old at the time of trial, testified his relationship with Steve was not typical as he was the person in charge of making decisions and supervising Steve, who was 10 years older than he, when their parents were not at home. Steve had very specific daily routines he followed. For example, on Mondays Steve got up, took a shower, played video games and at 2:30 or 3 p.m. watched "Mighty Max" on television. On Wednesdays, Steve would go to Mobley's place for the day, return home at about 4 or 4:30 p.m., eat dinner with the family, watch television and go to bed. During the spring of 1996, Steve worked on Thursday and Friday mornings, leaving home at 7:40 a.m. and returning around 11 or 11:30 a.m. If he were going anywhere besides work those days, he was required to inform his family so they would know where he was. He watched cartoons and played Nintendo video games at the same time most every day. Steve would become very agitated, scratching his hair and messing it up, if his routine were varied in some way. He was not violent at such times, only frustrated and confused.

Derek explained that while Steve dressed himself, he had difficulty understanding what was appropriate to wear for different weather conditions. If it was cold, he would have to be told to put on a jacket. When the weather warmed up, he had to be told to remove the jacket or he would sit with the jacket on, drenched in sweat. Steve could use the microwave oven and he helped with washing dishes and feeding the dog. He rode a bicycle and had learned to use public transportation. Although Steve read well, Derek did not know whether he understood what he read. Whenever he wanted to learn to get somewhere, Steve would bring the bus schedule to Derek so he could help plan the itinerary.

Derek could not recall exactly when he first met Mobley, but estimated it was several years before the trial. He did not think Mobley knew how to hold a conversation, found he talked funny and thought it strange Mobley was older and still played Nintendo and rode a bicycle. Mobley had once made Derek uncomfortable when he tried to give him some pornographic videotapes during one of his visits to Steve. Derek also found it odd that Mobley's roommate, whom he met twice, was a transvestite named Helen Anderson. Although he was suspicious of Mobley, Derek did not mention anything about his concerns to Steve or his parents.

Derek estimated Mobley visited their home over 40 times. Mobley also house-sat several times for their family when they went on camping trips. At the times Derek observed Mobley together with Steve, he never saw them hug or kiss. This was consistent with Steve's behavior at home, where he never hugged, kissed or touched family members.

Derek had never heard Steve mention the male sex organ until one day in April 1996, as they played Nintendo and talked in Steve's room, when Steve used the word "cave," telling Derek about an incident involving Mobley and Anderson. When Derek questioned Steve about what the word cave meant, Steve became agitated, stuttered and scratched his body and head. He told Derek cave meant "wiener in the butt." Derek inquired further, asking whether Mobley had ever done the cave with Steve when he went over to his place. Steve said, "Yes," and became very nervous and uncomfortable. Their conversation was interrupted when Derek's father picked him up for visitation.

When Derek returned home the next morning, which was a Wednesday, he told their mother what he had learned from Steve about Mobley and the cave. They immediately went over to Steve's best friend's house to talk to him. Jonathon D. (Jon) was upset and frightened and began to cry as he told Derek and Steve's mother what had happened with him and Mobley. Jon accompanied Derek and his mother back to their house where they waited for Steve to come home. When he did so, his mother talked privately with him and Jon. The police later came to the house to investigate the matter.

Steve's mother, Nita T. (Mother), who worked part time as an elementary school teacher, testified in more depth about Steve's background and disabilities. She exhaustively related Steve's gradual development after he came into her care at the age of four years, blind in one eye after much abuse and neglect. 4 His physical development was extremely slow and he was more like an infant than his chronological years. After evaluation of his developmental problems by Children's Hospital, Steve received regular care through the age of 12 years from therapists and physical, occupational and speech therapy. After several years Steve learned to chew and eat solid food. Between the ages of 8 and 10, he learned to speak. He learned to tie his shoes when he was 10 or 11 years old, to dress and clean himself by age 12, and to wash dishes by age 14 or 15.

Although Steve's speech is now understandable, it is not always clear. He still runs much the same as a toddler runs with his body upright and rigid and his arms out straight to balance himself. He is able to do basic things which do not require eye-hand coordination and dexterity or more than one step. Because Steve is lateral-minded, each step of a series of instructions has to be given to him individually upon the completion of the previous step to finish a project. For instance, in order to have Steve pick up his clothes and put them away, Mother first has to tell him to pick the clothes up, then tell him to carry them to his room, then tell him to go into the room, and finally tell him to put the clothes in his drawer.

Mother testified Steve suffers from "Besti-Fuborg's Dysfunction," which she described as a serious processing disability that jumbles his perceptions. If someone touches him, Steve might perceive it as a threat or an electrical shock. This tactile defensiveness is a reason Steve does not readily touch others and does not like to be touched. Mother still works with Steve to try to accustom him to being touched.

In addition, Steve does not exhibit the ability to transfer information from one situation to another. He has a difficult time making choices. Mother opined Steve functions in a manner similar to that of the character played by Dustin Hoffman in the movie Rain Man. Hence, he lives on a schedule in a "robotic sort of way." He gets up at the same time and takes a shower at the same time each day. He sits and waits until the clock strikes the designated minute before doing a particular task. Any variation in his routine disrupts his ability to take care of himself. While he does not become violent when agitated by a change in circumstances To be able to function, Steve requires a lot of rules. Because of his literal-mindedness, however, he often has trouble even applying the rules. For...

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