People v. Scarber

• Decision Date: 13 November 2019
• Docket Number: F068908
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. SPENCER ALEC SCARBER, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. SPENCER ALEC SCARBER, Defendant and Appellant.

F068908

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

November 13, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. F11904421)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge.

Nuttall Coleman & Drandell, Nuttall & Coleman, and Roger T. Nuttall; Page & Page, Kathleen C. Page and Edgar Eugene Page; Page Law Firm and Edgar E. Page for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Darren K. Indermill, Kathleen A. McKenna, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- Spencer Alec Scarber (defendant) stands convicted, following a jury trial, of forcible rape (Pen. Code,¹ § 261, subd. (a)(2); count one), forcible sexual penetration (§ 289, subd. (a)(1)(A); count two), first degree burglary in which a nonaccomplice was present in the residence (§§ 459, 460, subd. (a), 667.5, subd. (c)(21); count four), and first degree residential robbery (§ 211; count five). As to counts one and two, he was found to have committed the offense during the commission of first degree burglary, and to have used a knife in the commission of the offense. (§§ 667.61, subds. (d)(4) & (e)(3), 12022.3, subd. (a).) As to counts four and five, he was found to have personally used a knife during commission of the offense. (§ 12022, subd. (b)(1).)² Defendant's motion for a new trial was denied, and he was sentenced to prison for 25 years to life plus 10 years.

On appeal, we hold: (1) Defendant is not entitled to reversal based on asserted prosecutorial conflict of interest and/or misconduct; (2) Defendant has not shown the trial court was biased; (3) Defendant's statements were properly admitted, but if they were not, the error was harmless beyond a reasonable doubt; (4) The trial court did not err by finding defendant voluntarily absented himself from trial, continuing the trial in defendant's absence, and denying defendant's motion for a mistrial; (5) If the trial court erred by failing to instruct on consent and/or mistaken belief in consent, the error was harmless; (6) The trial court did not err by denying defendant's new trial motion, refusing to issue body attachments for and compel the testimony of certain witnesses, or refusing to release subpoenaed documents; (7) Defendant has failed to establish ineffectiveassistance of counsel or a violation of his right to autonomy; and (8) Defendant is not entitled to reversal based on cumulative error. Accordingly, we affirm.³

FACTS

In July 2011, Y.G. worked as a housekeeper at Ronnie S.'s home in Squaw Valley.⁴ On Friday, July 29, Y.G. arrived at 11:00 a.m. She had been there a little over half an hour and was vacuuming the bathroom with her back to the doorway, when someone bumped into her and put his arms around her. When she started screaming, he put his hand over her mouth. She struggled to break away, but he told her to stop fighting him and he pulled out a knife and put it to her throat. Fearing for her life, she submitted.

The man let her go, and she turned around. Her assailant's face was covered with what looked like a T-shirt or some kind of material, and he was wearing large dark glasses. He told Y.G. to turn off the vacuum. He still had the knife, and she complied. He then told her to go over to the bed and get naked. She resisted a couple of times, but he threatened her by bringing the knife closer to her each time. Eventually, she got undressed. He noticed a cell phone in her pocket, took it from her, and set it on the bed.

Once Y.G. was naked, the man told her to lie on the bed. She complied. He then put one or more fingers in her vagina and another finger or fingers in her anus. After he did this, he tried to penetrate her vagina with his penis. He was having problems inserting it and seemed frustrated. Eventually, he achieved penetration.

At some point, Y.G. saw the knife and her phone lying next to her on the bed. She reached for them, but the man noticed, grabbed them and moved them away, and thenpinned her hands above her head. When he finished raping her, he took the knife and her cell phone and rushed to the door. As he was leaving, he said, "Next time you come back," and he mumbled something else. Because she came to the house on a regular basis, Y.G. felt he was someone who knew something about her.

Once the man left the room, Y.G. put some of her clothes back on, then went to the bedroom of Brittany C. to see if she had a phone. When Brittany opened the bedroom door, Y.G. told her what had happened. Brittany checked on her elderly grandfather, then called 911.

When medical and law enforcement personnel arrived, Y.G. was visibly shaking and crying. She described her assailant as tall and skinny, with buzzed brown or dark hair, and with a dark-colored T-shirt or something covering his face up to his eyes and glasses. Y.G. had no idea who he was. She later learned defendant had been accused of committing the rape. She had never heard his name or seen him before.⁵

Ronnie came home as soon as Brittany notified her of the rape. Ronnie gave the police several names of young men she thought could fit the perpetrator's description. All were former friends of her son, Thomas S. The first person who came to her mind was defendant. She described him to deputies as tall and slender, with medium-brown hair in a buzz cut. Late that afternoon or early evening, a white car drove back and forth past the house. Ronnie notified the police, because it seemed suspicious and she thought it might be the perpetrator. Thomas said it was defendant in his mother's car.

The S. home had a driveway that was about the length of a football field. An inoperable Ford Explorer sat near the midpoint. Late on the evening of the incident, Ronnie heard a lot of young people out there. Someone said defendant was there and had confessed.

Ronnie recalled walking down to the car with Brittany and Brittany's husband, Jaron C. At least two females and several males, all teenagers or young adults, were at the vehicle. Defendant was also there. Ronnie asked him why he would rape Y.G. He said he did not know why. Other people were also asking him questions.⁶ When Ronnie asked defendant where Y.G.'s cell phone was, defendant responded that he might have thrown it in the field or he might have thrown it down the road.

During this time, defendant was sitting in the car. Ronnie could clearly see his face. He was not injured in any way. He appeared to be high on something, but he was coherent and knew what he was saying. Ronnie saw items in the vehicle that she believed were connected to the rape, including sunglasses, a knife, and a T-shirt. Ronnie had previously seen defendant with the sunglasses. Although she had not seen this knife, she had known defendant to carry knives before.

At some point, Ronnie returned to the house. Later, after everyone was gone, Ronnie returned to the car. She put the items in a garbage bag to hold until she could give them to law enforcement. Deputies arrived before she made it back to the house, and she gave them the items.

Jaron recalled getting off work late that evening and going to the house. There, he learned Thomas had talked to a couple of his friends, who were able to get defendant to come over. Jaron went down to the Ford Explorer. Defendant was walking up the road with one of his friends. Jaron, Thomas, Chauncey G., two other males, and at least one female, gathered by the Explorer and asked defendant to sit in the front passenger seat. Defendant was uninjured. People started questioning him about the rape. For at least 10 minutes, defendant "was in complete denial of it." After Jaron and the others "started piecing little bits and pieces together in front of him," Jaron sensed defendant "had a feelof guilt on his mind," and he admitted raping Y.G.⁷ Defendant's backpack was in the trunk area of the Explorer. The group had defendant empty it on the hood of the vehicle. Inside were a black shirt and sunglasses. A knife was on the seat where defendant was sitting. When Jaron asked why defendant committed the rape, defendant said he was "just twacked out," meaning he was on whatever drugs he could find. He also said he did not know why he did it.

Jaron and Chauncey walked back up to the house, because everyone was talking about taking defendant somewhere instead of straight to the sheriff's department. Jaron was concerned they were planning to harm defendant, and he and Chauncey did not want to be a part of that. Thomas remained with the group. About 10 minutes later, Jaron and Brittany left to go to the home of Jaron's parents. The car that the group was in was just leaving. Jaron and Brittany came across two deputies at the corner of Antelope Lane and George Smith Road. Jaron informed them that they had gotten a confession from defendant and where defendant was located. The deputies asked them to go back up to the S. house, which they did.

Around 3:15 a.m. on July 30, Fresno County Sheriff's Deputy Larralde was searching for a cell phone, at the request of Detective Isaac, in the area of the intersection of George Smith Road and Antelope Lane.⁸ He had been searching unsuccessfully for about 20 minutes when a van containing two or three people approached. One of its occupants — possibly Jaron — said they had information about the case. They said they knew who committed the rape and had items the suspect used, and they directed Larraldeto the S. home....