People v. Perry
| Docket Number | B314950 |
| Decision Date | 03 November 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. LARRY EUGENE PERRY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA150355. Ricardo R. Ocampo, Judge.
Stephen M. Vasil, under appointment by the Court of Appeal for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted Larry Eugene Perry of forcible rape of a minor 14 years old or older (Pen. Code, § 261, subd. (a)(2)) and sexual penetration by a foreign object of a minor 14 years old or older (§ 289, subd. (a)(1)(C)).[1] The victim was his daughter S.P. On appeal, Perry raises several arguments. First, he contends the trial court erred under Miranda v Arizona (1966) 34 U.S. 436 (Miranda) by admitting a recording of his police interrogation. Second according to Perry, the court should have excluded the victim's pretrial statements offered at trial. Third, he maintains the prosecution committed prejudicial error during its rebuttal closing argument by suggesting to the jury the defense strategically withheld certain recordings the prosecution had successfully excluded. Fourth, Perry argues his case should be remanded for resentencing under amended section 1170, subdivision (b).
The convictions are affirmed, but we vacate the sentence and remand for resentencing based on amended section 1170, subdivision (b).
In December 2019 the People filed a three-count information against Perry, alleging the following charges: continuous sexual abuse of a minor under 14 years old in violation of section 288.5, subdivision (a) (count 1), sexual penetration by a foreign object of a minor 14 years old or older in violation of section 289, subdivision (a)(1)(C) (count 2), and forcible rape of a minor 14 years old or older in violation of section 261, subdivision (a)(2) (count 3).[2]
The information alleged the victim was S.P., Perry's minor daughter. S.P. was born in August 2003 and was 17 years old at trial. Perry's adult daughter Nakeya Perry, S.P.'s guardian, was 36 years old at trial.
Nakeya testified she first met Perry when she was 23 years old, and he informed her she had a younger half-sister, S.P. Nakeya gained custody of S.P. when she was 11 or 12 years old, at Perry's request, after S.P.'s mother died and S.P. was in foster care. S.P. had a learning disability and received special education services in elementary and middle school, but was in regular classes by high school. Perry retained parental rights and had his disability benefits go to Nakeya for S.P.'s benefit.
Perry and S.P. first met when S.P. was 11 years old and Perry was living at a homeless shelter. He subsequently moved into senior housing. Starting around sixth grade, when she was 12 years old, S.P. stayed alone with Perry at his apartment from 3:15 p.m. to 8:00 p.m. after school, as well as some weekends. This arrangement continued until December 2017, when S.P., then 14 and in eighth grade, told Nakeya that Perry was sexually abusing her.
S.P. testified that, when she was 12 years old and visiting Perry, he directed her to take down her pants and underwear and get on the bed. S.P. felt "weird[ed] out," but followed Perry's directions. Perry donned disposable latex gloves, "like doctor gloves," he took from his nightstand. Perry told S.P. he was going to put his finger inside of her vagina and told her to lie down, then put his fingers inside her and moved them around. After he stopped, he told S.P. to put her clothes back on, and S.P. asked why he had put his finger inside her. Perry replied it was "to see if [you're] a virgin." Perry told S.P. he would get in trouble with the police and go to jail if she told Nakeya what happened, so S.P. said nothing to Nakeya that day. S.P. felt confused and embarrassed.
S.P. testified this "same routine" continued about once every week after that first instance, through her seventh grade year. Perry also sometimes began asking S.P. to take off her shirt, starting when she was 12, and would touch her breasts. When S.P. was 13, Perry began using two gloved fingers. Perry continued this "routine" until a family cruise in August 2017 at the start of S.P.'s eighth grade year, when she was 14. S.P. also testified that in March 2017, Perry asked her to perform oral sex on him. In August 2017 S.P. went on a weeklong family reunion cruise to the Bahamas with Perry, S.P.'s half-sister Shantai Lofton (Perry's eldest daughter, who was about a dozen years older than Nakeya), and several other extended family members. Nakeya did not go. Perry and S.P. shared a room throughout the cruise. On the fourth day, while S.P. was resting in bed, Perry asked S.P. to take down her pants and underwear and kiss him. Perry kissed her and put two fingers inside her without using a glove. S.P. did not say anything to her family members on the cruise because she felt embarrassed and did not want them to know.
The weekend after the cruise, while S.P. was at his apartment, Perry told S.P. to lie down on the bed and said he was going to put his penis inside her. Perry then raped S.P. He used a condom and when he removed it he told S.P. he used it so she would not get pregnant, then flushed it down the toilet. S.P. did not tell Nakeya what happened because she was embarrassed and did not want Nakeya to be disappointed or angry with Perry. Perry raped S.P. again the following week, and again two weeks later.
The abuse continued intermittently during S.P.'s eighth grade year until the end of 2017. At trial, S.P. described it as occurring "many more times" and "once in a while" with no regular schedule. When she was in eighth grade, S.P. once pushed Perry off her and told him she did not want to "do it" anymore, and he "left [her] alone" and did not abuse her on that occasion. Another time, also in eighth grade, she kicked him when he approached her bed at night, and he walked away. The last time Perry raped S.P. was around December 2017; S.P. could not recall the last instance.
S.P. believed Perry's neighbors and building manager could see something was bothering her. Perry's next-door neighbor would ask her if he was treating her well, seeming concerned. S.P. testified Perry once yelled at her in front of building manager Estrella "Starr" Garcia, and Garcia looked shocked. S.P. testified she attended a residents' meeting where Garcia stated toilets were being clogged with toilet paper, food, wrappers, and condoms. Perry "paused" and looked at the ground during the meeting.
Nakeya had a falling out with Perry and did not bring S.P. to his apartment between Thanksgiving and Christmas 2017. The dispute was about whether Nakeya was using Perry's disability benefits for S.P., and because Perry disliked Nakeya's boyfriend, Robin Dozier. Nakeya testified she and Perry resolved their differences by Christmas 2017 and planned for S.P. to stay with Perry for a week after Christmas.
On December 26, 2017 S.P. told Nakeya that Perry had been touching her. S.P. did not tell Nakeya everything at first because she was embarrassed and scared. Nakeya testified S.P. initially told her she did not want to stay at Perry's house after Christmas because he had been "checking" her "private area."
Immediately after S.P.'s initial conversation with Nakeya, Nakeya called Perry and told him S.P. said he had been "checking her," including on the cruise. Perry replied S.P. had asked him about sex, but he was otherwise quiet and did not give any other response or deny touching S.P. Nakeya told Perry she was going to tell "everybody," including her older sister, Lofton. When Nakeya could not reach Lofton, she called her mother, Chandra Battee, who was previously married to Perry, and relayed S.P.'s allegations. Battee testified she and Perry remained friends after their divorce, and that she was close with S.P., who called her "Granny." Nakeya and Battee had a threeway call with Perry, 20 minutes after Nakeya's first call with Perry, during which Battee cursed at Perry, said "Oh, my God, you molested your daughter," and asked how he could do this. Perry said nothing until the end of the call, when he stated, "Well, you guys do what you got to do."
Later that day, Nakeya asked S.P. more about what had happened, and S.P. disclosed to Nakeya that Perry had raped her. Nakeya asked S.P. if she wanted to file a police report and press charges or "leave it alone," and S.P. said she wanted Perry to go to jail. S.P. felt it was the right thing to do, and did not feel pressured by Nakeya.
The following day, Nakeya took S.P. to the Compton sheriff's station, where Deputy Adonay Molina interviewed S.P. separately from Nakeya. According to Deputy Molina, S.P. said her father had been sexually abusing her for about a year and recounted the details of the abuse.
On January 2, 2018 Sheriff's Detective Maricruz Perez met with S.P. and Nakeya. She spoke "briefly" with S.P S.P. said Perry would check her "privacy area" when she would visit him, and that it also happened on a cruise around the beginning of September. The first occurrence was when she was 13 years old, on the last day of seventh grade. ...
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