People v. Sayres

• Citation: 150 Cal.App.4th 1040,58 Cal.Rptr.3d 823
• Decision Date: 15 May 2007
• Docket Number: No. B188303.,B188303.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tadashi N. SAYRES, Defendant and Appellant.

58 Cal.Rptr.3d 823

150 Cal.App.4th 1040

The PEOPLE, Plaintiff and Respondent, v. Tadashi N. SAYRES, Defendant and Appellant.

No. B188303.

Court of Appeal, Second District, Division 4.

May 15, 2007.

Certified for Partial Publication.^*

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan

[58 Cal.Rptr.3d 824]

Pithey and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

WILLHITE, J.

A jury convicted defendant Tadashi Sayres of two counts of forcible rape (§ 261, subd. (a)(2)),¹ and round true the allegations in each count that he personally used a deadly weapon (a knife) (§ 12022.3, subd. (a)) and that he committed the crimes during the commission of burglary while using a deadly weapon (§ 667.61, subds. (a) & (e)).² He admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced him to a total term of 86 years to life in state prison. He appeals from the judgment, contending: (1) the judgment must be reversed because the court reporter cried during a readback of testimony; (2) the trial court erred in excusing a juror during deliberations; (3) the trial court erred in excluding evidence that the victim in the instant case made an allegedly false prior accusation of attempted rape; (4) the court erred in imposing a five-year enhancement under section 667, subdivision (a), on each of the counts on which defendant was convicted; and (5) the court's selection of the upper term for the rape conviction and the knife use enhancement on count 2 violated Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (Cunningham). We affirm.

BACKGROUND

Prosecution Case-in-Chief

In the early morning hours of March 28, 2001, defendant burglarized the Palmdale apartment of Melissa M. and raped her twice at knifepoint while her infant daughter slept in another room. The prior evening, when Melissa went to bed, she locked her apartment doors and windows except the dining room window, which she left open a few inches for ventilation.

Shortly after midnight, she was awakened by the noise of a man talking. Defendant stood in the hallway of Melissa's apartment, and asked her questions suggesting that he was looking for two individuals, one of whom owed him money. Melissa said that she lived alone and did not know the people defendant was looking for. Defendant sat on Melissa's bed. For perhaps half an hour, he talked about his mother and how his life was not fair. He then went to use the bathroom, which was located across the hall. While he was gone, Melissa put on a nightgown and underwear.

Melissa headed for the kitchen to use the telephone, but encountered defendant, who held a knife that was eight to ten inches long. Melissa asked him if he wanted a drink from the kitchen. Defendant said he did not. When Melissa reached the living room, defendant backed her up to the couch, placed the knife against her neck, and told her to sit down. She complied, whereupon he used the knife to cut away and remove her underwear. Melissa said, "No," but defendant told her to be quiet. He removed her nightgown, took off his jacket, and unzipped his pants. He ordered her to lie on the couch. When she did so, he had intercourse with her.

Defendant said Melissa was moving, and he became angry. He put the knife to her throat, and forced her into her bedroom. He ordered her to lie on her bed, which she did. Defendant then had intercourse with her again. He wiped himself on the blanket, and talked to Melissa about his mother and the Book of Mormon. Melissa smelled alcohol on his breath.

Eventually, defendant said he was going to his car to get the Book of Mormon, and walked out the front door. Melissa locked the door after him, and locked the dining room window. She noticed that the window was wide open, and the screen was on the grass several feet away. Melissa went into her daughter's bedroom, where her daughter was still sleeping. Melissa hid under the desk, and called 911. A recording of the call was played for the jury.

Los Angeles County Deputy Sheriff Manuel Plasencia arrived. Melissa was crying and upset. She had "red lumps" on her neck in a straight line as if caused by a knife blade. Deputy Plasencia took Melissa to Antelope Valley Hospital Medical Center, where she underwent a sexual assault examination.

More than three years later, in August 2004, Los Angeles County Sheriffs Detective Gregory Minster received notice from the Bureau of Scientific Services that there was a DNA "hit" in Melissa's case, and he was informed of the identity of the suspect—defendant. Detective Minster placed defendant's photograph in a photographic six pack and interviewed Melissa. Melissa picked two photographs—defendant's and that of another man—as possibly being her assailant, but she was not sure.

Detective Minster went to the address listed on defendant's Department of Motor Vehicles information, and spoke to defendant's girlfriend, who said that she would have defendant call him. About an hour later, defendant called Detective Minster. The detective told defendant that he had a 2001 case that might involve him. Detective Minster asked defendant about women he had been with in 2001. Defendant said that in 2001, he had been with his ex-wife and his ex-girlfriend. Detective Minster asked him to come to the station that day. Defendant agreed, but never appeared.

Sean Yoshii, a criminalist with the Los Angeles County Sheriffs Department, compared a sample from the vaginal swab of Melissa's sexual assault examination to a cheek swab from defendant. In Melissa's sample, he found a mixture of DNA from Melissa and defendant. Defendant is African-American, according to Yoshii. The probability of a black male other than defendant having made the DNA contribution was 1 in 1.8 billion.

At trial, Melissa identified defendant as her attacker. She testified that she had never met defendant before. The underwear she was wearing on the night of the attack, cut on both sides, was introduced at trial.

Defense

Defendant testified in his own defense. He admitted having intercourse with Melissa, but testified that it was consensual. According to defendant, he met Melissa, whom he remembered as Heather, at a Palmdale nightclub called Louisiana Hots. Defendant bought Melissa some drinks, and she had some Ecstasy with him. He left the club alone in his car, and followed Melissa to her apartment. He asked her if he could use the bathroom. When he came out, Melissa was in the bedroom, and told him to "come here." He walked to the room, where Melissa was sitting on the bed. They had consensual sex. He later left in his car.

DISCUSSION

I-IV^**

V. Cunningham Error

On count 2, the trial court selected the upper term of 8 years (doubled to 16 years under the second strike law) for the rape, and the upper term of 10 years for the knife use allegation. Defendant contends that in choosing these terms, the court violated Cunningham v. California, supra, 549 U.S. ___, 127 S.Ct. 856, by relying on sentencing factors not found by the jury.⁸ However, as explained below, the error is harmless.⁹

In Cunningham, the Supreme Court noted that its prior decisions in, inter alia, Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 "instruct[ ] [that] the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham, supra, 127 S.Ct. at p. 860.) The High Court concluded that under California's Determinate Sentencing Law (DSL), the middle term is the statutory maximum sentence. Overruling People v. Black (2005) 35 Cal.4th 1238, 29 Cal. Rptr.3d 740, 113 P.3d 534, the court held that "[b]ecause the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Cunningham, supra, 127 S.Ct. at p. 871.)

However, the failure to submit a sentencing factor to the jury is not structural error requiring reversal per se. (Washington v. Recuenco (2006) ___ U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466.) It is subject to the harmless error test prescribed for federal constitutional error— whether the error was harmless beyond a reasonable doubt (Chapman, supra, 386 U.S. at p. 36, 87 S.Ct. 824). Further, the error was harmless in this case.

In the instant case, at least two of the sentencing factors considered by the court did not violate Cunningham. The court found that "defendant has engaged in a pattern of violent conduct which indicates a serious danger to society." In reaching this finding, the court could properly consider the fact that in September 1994 defendant was convicted of robbery (§ 211) and assault with a firearm (§ 245, subd. (a)(1)), and could also properly consider the jury's findings in the instant case. Undoubtedly, defendant's past and current convictions show "a pattern of violent conduct which indicates a serious danger to society."

The trial court also relied on the fact that defendant had served a prior prison term. This factor is one on which no jury trial was required, for two independent reasons. First, it falls within the exception for prior convictions. Second, it is a fact admitted by defendant: at trial, defendant testified that in 1994 he was convicted of robbery and assault with a deadly weapon, and that he was released from prison in December 1997.¹⁰ Thus, there was no Cunningham error in the court's consideration of this factor.

One valid factor in aggravation is sufficient to support the...