People v. Reeder

• Decision Date: 07 March 1984
• Docket Number: Cr. 11309
• Citation: 152 Cal.App.3d 900,200 Cal.Rptr. 479
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kenneth REEDER, Defendant and Appellant.

Page 479

200 Cal.Rptr. 479

152 Cal.App.3d 900

The PEOPLE, Plaintiff and Respondent, v. Kenneth REEDER, Defendant and Appellant.

Cr. 11309.

Court of Appeal, Third District, California.

March 7, 1984.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Ezra Hendon, Chief Asst. State Public Defender, Cynthia A. Thomas, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Nelson P. Kempsky, Deputy Attys. Gen., for plaintiff and respondent.

SPARKS, Associate Justice.

Following the filing of our opinion in this case, the California Supreme Court granted hearing and transferred the cause to that court. Recently, the Supreme Court ordered the cause retransferred to this court for reconsideration in light of People v. Belmontes (1983) 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686. Pursuant to that mandate, we have made appropriate modifications in light of Belmontes and now republish our decision as so modified.

In this case we examine and interpret the statutes and rules governing punishment for violent sex offenses. Defendant Kenneth Reeder appeals from a judgment of the Superior Court of Nevada County sentencing him to state prison for a total unstayed term of forty-one years after a jury found him to be guilty of four counts of forcible oral copulation (Pen.Code, § 288a, subd. (c)), ¹ and four counts of rape by means of threats. (Former § 261, subd. 3; now § 261, subd. 2.) He also admitted serving a prior prison term for the crime of forgery. (§ 667.5, subd. (b).) Defendant contends that he was denied his right to a speedy trial as to counts one and two. He also raises numerous sentencing contentions: (1) the decision to impose full, separate, and consecutive sentences for multiple violent sexual crimes against the same victim on the same occasion under section 667.6, subdivision (c), is actually two sentencing choices and the court failed to state different reasons for both choices; (2) section 667.6 may not be applied because the Judicial Council has failed to promulgate special sentencing rules for the application of that section; (3) he was denied equal protection of law by the application of section 667.6; (4) section 667.6, subdivision (c), providing for full, separate, and consecutive sentences in the trial court's discretion, is applicable rather than subdivision (d) which mandates full, separate, and consecutive sentencing; (5) the trial court erred in sentencing him to prison terms for two counts of oral copulation and two counts of rape committed against the same victim on the same occasion; (6) the trial court violated the proscription against the dual use of facts by using the same facts in aggravation to impose both upper terms and consecutive terms; (7) the trial court used improper and unsupported factors in aggravation; and (8) the imposition of consecutive sentences was an abuse of discretion.

Although the People did not file a cross-appeal, the Attorney General raises another sentencing issue. He argues that the trial court imposed an unauthorized sentence where it selected one of the 1980 violent sex crimes as the principal term. We agree with defendant that section 667.6, subdivision (c), and not subdivision (d), applies in this case. We further agree that the sentencing court is required to state reasons for imposing sentence under subdivision (c) which are separate, although not necessarily different, from those justifying the decision to impose a consecutive sentence. We also agree that the overwhelming nature of the evidence is not a factor in aggravation. We further agree that the trial court should not have considered threats of great bodily harm to the victim and her children in counts five, six, seven and eight as a factor in aggravation. Additionally, we agree that the proscription against dual use of facts was violated. Finally, we reject the Attorney General's contention that the trial court imposed an unauthorized sentence when it selected the term of imprisonment for an offense punished under section 667.6 as the principal term. For these reasons we remand for resentencing. We reject all of defendant's other contentions and shall affirm the judgment of conviction.

FACTS

On March 16, 1979, Stacia S. was visiting her parents in Nevada County. After visiting friends during the day she went to Denny's Restaurant in the evening. At some point she discovered that she had misplaced her car keys. When Stacia could Defendant drove to a motel where he registered under a false name. Stacia believed that defendant intended to leave, but he entered the room with her. Defendant made sexual advances toward Stacia and she became frightened. She tried to walk away but defendant grabbed her and threw her on the bed and said that she was going to have sex with him. Stacia started screaming and defendant advised her to stop. Defendant choked Stacia and forced her to remove her clothing. He forced her to perform an act of oral copulation by threatening to "break every bone in [her] body" if she refused. Defendant then committed an act of sexual intercourse. Afterwards defendant left saying that, while he was sorry, he would kill Stacia if she told anyone.

not locate her keys defendant offered to drive her to a friend's house where she suspected she may have left them. The keys were not at the friend's house, and Stacia mentioned to defendant that she was afraid to go home for fear of what her parents might say. Defendant stated that he would find her a place to stay.

On the evening of November 28, 1979, Wilma L., who had known defendant for quite a few years, went to the Silver Dollar bar. After drinking at the bar for a couple of hours Wilma left with defendant. He had promised to take her home. Instead of driving toward Wilma's house defendant drove onto the freeway. Wilma insisted on going home but defendant told her that he "had a line on some CB'ers" that he wanted to meet.

Defendant pulled off the main road and stopped. Wilma tried to get out of the car but defendant grabbed her hair and pulled her back. He choked her and told her that if she did not do what he wanted he would kill her. Wilma continued to try to escape and defendant punched her in the face. Defendant forced Wilma to orally copulate him and then removed her clothing. He committed an act of sexual intercourse while threatening to kill her. Defendant drove Wilma back to town and let her out near the Silver Dollar.

On May 10, 1980, Sher S. went to the Coach House, which is a restaurant and dancing hall. She joined her friend Carol, who was sitting with three men, including defendant. When Carol left, Sher told the men that she would leave also, since she should not be there alone, but they assured her that they would not let anything happen to her. Eventually defendant, Sher, and a man named Jay left the Coach House to go to Mr. Charley's to get something to eat.

When Sher told defendant that she was leaving he offered to drive her home. When she told him "no way" he said that he would follow her to make sure that she was all right. Defendant advised her that if he flashed his lights on and off she should pull off the road because that would mean that she was not driving well. About five to ten minutes after leaving Mr. Charley's defendant began to blink his lights on and off and honk his horn. Sher continued to drive but eventually stopped her car. Defendant told Sher that she was all over the road and could not continue to drive like that without getting arrested. Defendant insisted on driving Sher home but she continued to refuse. Defendant finally pushed her over and got into the car and began to drive. He told Sher that he knew a shortcut home and turned onto a side road.

Defendant stopped the car and got out, saying that he had to go to the bathroom. He returned to the car and asked Sher whether she had ever been seduced. Sher answered "no" and defendant said "Well, you're going to tonight." Sher began to cry and defendant told her that they were "going to do it a couple of times," and then she could go home. He forced her head down and made her perform an act of oral copulation. He stopped and forced her to submit to an act of sexual intercourse. A short time later Sher asked to go home and defendant refused, saying that she was going to do it twice. Defendant forced Sher to lay on the car seat while he performed an act of oral copulation with her

vagina, and then he committed another act of sexual intercourse.

THE RIGHT TO A SPEEDY TRIAL

Defendant contends that he was denied his right to a speedy trial as to the charges involving Stacia. He notes that although the offenses were alleged to have been committed on March 17, 1979, a complaint was not filed until June 1980. It is settled that the speedy trial provision of the Sixth Amendment is not violated by a prearrest or precomplaint delay. (United States v. Marion (1971) 404 U.S. 307, 313, 321, 325, 92 S.Ct. 455, 459, 463, 465, 30 L.Ed.2d 468, 474, 479, 481-482. See People v. Lawson (1979) 94 Cal.App.3d 194, 197, 156 Cal.Rptr. 226.) Defendant therefore bases his argument on article I, section 15 of the California Constitution, which provides in relevant part: "The defendant in a criminal cause has the right to a speedy public trial ...."

Defendant has applied a misnomer to his contention. The state constitutional right involved in prearrest and precomplaint delay is not the right to a speedy trial but is rather the right to due process of law. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505, 149 Cal.Rptr. 597, 585 P.2d 219.) The argument is not changed, however, for the test is the same. (Ibid.) That test weighs the prejudice to the defendant against justification for the delay. (Ibid.) This process involves three steps: first, the defendant must establish prejudice; second,...