People v. Pierce
| Decision Date | 21 June 1999 |
| Docket Number | No. F027557,F027557 |
| Citation | 86 Cal.Rptr.2d 30,72 Cal.App.4th 1448 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 72 Cal.App.4th 1448 72 Cal.App.4th 1448, 99 Cal. Daily Op. Serv. 4901, 1999 Daily Journal D.A.R. 6237 The PEOPLE, Plaintiff and Respondent, v. Randall Blaine PIERCE, Defendant and Appellant. |
Appellant Randall Blaine Pierce was convicted by a jury on one count of oral copulation by force or fear (a violation of PEN.CODE, § 288A1, subd. (c), count one), one count of sodomy by force or fear (a violation of § 286, subd. (c), count two) and one count of false imprisonment (a violation of § 236, count three). He was sentenced to a term of 12 years 8 months in state prison. On April 25, 1995, this court reversed the conviction (People v. Pierce (Cal.App.) No. F020282, opn. deleted upon direction of Supreme Court by order dated July 27, 1995), finding appellant had been denied a fair trial because one of the jurors had been mentally incompetent. 2
Appellant's second jury trial began December 2 and ended December 6, 1996, when the jury returned its verdict of guilty on all counts. On January 7, 1997, appellant was sentenced to a total term of 16 years in state prison. The court imposed the upper term of eight years on counts one and two as full consecutive terms, and a two-year midterm on count three, to run concurrently to the terms imposed on counts one and two.
In this timely appeal appellant challenges both the convictions and the sentence on numerous grounds. We find merit only in his claim that the court erred in imposing a greater sentence than that imposed after the first trial. We will remand for resentencing.
Appellant and Carla T. dated briefly in 1990. Their relationship included a consensual sexual relationship. On the evening of January 4, 1992, Carla was leaving an Alcoholics Anonymous (AA) meeting with her friend Wayne Vail. Appellant approached the two in the parking lot. Appellant told Carla he wanted her to come with him and talk to "some people" about her current boyfriend, who appellant claimed was in "trouble." Carla told appellant to get into the car and the three drove off. She then dropped Vail off at another meeting and appellant took over the driving duties. After driving around for awhile, Carla called her baby-sitter and asked her if her two small children could stay the night because she did not know how long she would be. Once child care was arranged, appellant and Carla went to the home of Bob Loux. At the Loux home, appellant showed Carla some bullet holes in a door which he said were the result of Loux killing someone in the house recently. Appellant also told Carla there were a bunch of teenagers outside who would enter the home if they heard a commotion.
At one point, Carla started to sit on the floor, but appellant told her in a firm voice to come sit on his lap. He then tried to touch her breast and she told him to stop. When she got up and walked away, he followed her. Appellant told Carla he had some tapes of her boyfriend he wanted her to hear and he pushed and prodded her to the bedroom. She went unwillingly. When they arrived at the bedroom, appellant asked her if she were afraid. When Carla said "yes," appellant said she need not be, but then told her how he had physically abused another woman who had refused him and tried to run away.
Appellant then ordered Carla to take off her clothes. He held her arms behind her back and placed her in front of a mirror. He fondled her breasts. When Carla said she didn't want to have sex with him, appellant said she did not have a choice. Appellant then forced her to orally copulate him. After this act, appellant applied lotion, turned Carla over and sodomized her. She asked him to "please don't do this" and he responded "this is something I have to do." Carla screamed, but appellant covered her mouth with his hand. After the assault, appellant laid on top of Carla. Later she believed he was asleep and she tried to get up to leave, but he awoke and restrained her. This happened several times during the night.
Carla was afraid throughout the night because of the violent comments appellant had made, because she did not know or trust Loux, because she knew appellant was a black belt in tai kwon do, and because appellant threatened to take her to a cabin and lock her in it. She also considered his story about the other woman who had resisted him a threat. She believed appellant was under the influence of "speed or something."
Finally, at dawn, January 5, 1992, Carla told appellant she loved him and would start seeing him again in the hopes he would let her go. Appellant did. Carla drove to pick up her children and then returned home. She took a shower, trying to get "clean," and started crying. She called her AA sponsor and told her what had happened. The sponsor urged her to report the offense, but Carla said "no" because she feared she would be killed if she did. She went to visit her mother who lived on the property in a separate house. Her mother noticed Carla was agitated and very upset. Carla told her she had been "kidnapped" by Pierce and held by him all night. When her mother asked if she had been raped, Carla responded "yes." The next day, January 6, 1992, Carla did talk to a rape crisis counselor who also suggested Carla report the offense. After talking with the counselor, Carla agreed to go to the hospital and called police.
At the hospital, a rape kit examination was done. Both the emergency room physician, Dr. Max Miller, and the attending nurse, Ms. Jackie Tomlinson, testified at trial. Dr. Miller testified when he examined Carla, she had a reddened, irritated external anus and that her physical exam was consistent with her history, i.e., that she had been forcibly sodomized. He also testified Carla had a "depressed affect," looked sad and had downcast eyes. This was consistent in Dr. Miller's experience with the demeanor of other rape victims. Nurse Tomlinson testified Carla had a flat affect, was very quiet and was "blank," which in her experience was consistent with the demeanor of other victims of rape. Both stated they did not know whether the sexual contact was consensual or not.
At the hospital, Sheriff's Deputy Douglas Unruh and Detective Jim Silva took statements from Carla concerning the offense. Unruh said Carla appeared traumatized. Silva said she was nervous, avoiding eye contact and was reluctant to discuss the attack. Detective Silva collected the sheets from Loux's house. A criminologist found seminal fluid on the sheets. Silva also found two bottles of lotion in the bedroom, one of which had the lid off.
At trial, Cynthia S. testified concerning her former relationship with appellant, including a consensual sexual relationship. During the relationship, appellant was physically abusive towards her. On March 3, 1990, appellant showed up at a residence where Cynthia was present and grabbed her by the hair, slamming her into a wall before forcing her into a car. At one point she ran from the car and hid behind a bush, but appellant found her. He told her he would kill her if she did not get back into the car and he grabbed her by the neck and hair taking her back to the car. He then drove to a motel room where he forced her with threats to orally copulate him and raped her. Cynthia S. did file charges against appellant and the case was resolved when appellant pled guilty to assault likely to produce great bodily injury.
Appellant testified in his own behalf. He admitted having sexual contact with Carla but claimed it was consensual. He claimed he never threatened her or forced her to do anything at the Loux home. He also denied being under the influence of narcotics, although he testified he was a heavy drug user and alcohol drinker during this period. His testimony differed significantly from Loux's testimony and from his own previous testimony on a number of points. Loux testified he spent 45 minutes visiting with appellant and Carla before retiring and that Carla was "very friendly" with appellant. He stated Carla sat on appellant's lap, although he admitted not being able to hear what was said between them because he was not wearing his hearing aids. He also stated he would not have been able to hear any unusual noises or yelling that night.
Appellant also denied raping Cynthia S., although he admitted their relationship ended in a "very ugly domestic scene." He claimed their 1990 sexual encounter at the motel was consensual.
I.-II. **
III. The Evidence of the Prior Offense Was Properly Admitted.
At the close of trial, the court instructed the jury on the proper use of the evidence concerning the 1990 incident involving Cynthia S. It is undisputed appellant was not convicted of a sexual offense in connection with the incident. In her testimony, Cynthia S. explained although rape charges were initially filed, the prosecutor offered a plea bargain to appellant which included an assault offense and not a sexual offense. She testified she concurred with the plea bargain because she did not want the ordeal of testifying. As a result, appellant pleaded guilty to assault with force likely to cause great bodily injury and the rape charge was dismissed with a Harvey 6 waiver. The instruction given to the jury in connection with this evidence was a modified version of CALJIC No. 2.50, modified to conform with the recent enactment of Evidence Code section 1108. The court instructed as follows:
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