People v. Scott
| Decision Date | 12 September 2000 |
| Docket Number | No. D033131.,No. D033902.,D033131.,D033902. |
| Citation | 83 Cal.App.4th 784,100 Cal.Rptr.2d 70 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Lionel Andrew SCOTT, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Steven Schorr, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Lionel Andrew Scott.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle M. Boustany, Supervising Deputy Attorney General and Jean Hume, Deputy Attorney General, for Plaintiff and Respondent.
In the first of two trials, a jury found Lionel Andrew Scott guilty of unlawful sexual intercourse by a person 21 years or older with a minor under 16 years of age (Pen.Code,2 § 261.5, subd. (d)), and two counts of oral copulation by a person over 21 years of age on a person under 16 years of age (§ 288a, subd. (b)(2)), but was unable to reach a verdict on one count of forcible rape (§ 261, subd. (a)(2)) and two counts of forcible oral copulation (§ 288a, subd. (c)(2)). The trial court declared a mistrial as to the latter three counts. The trial court subsequently found Scott suffered two prior serious/violent felonies or "strikes" (§ 667, subd. (b)-(i)), and senfenced Scott to a total prison term of 50 years to life.
In the second trial, a jury convicted Scott of the three violent sex counts that had been mistried. The trial court set aside the previously imposed sentence and resentenced Scott to state prison for a total term of 75 years to life. Scott appeals both judgments; we have consolidated the appeals.
Scott's principal assignment of error is the retrial on the forcible sex offenses was barred under double jeopardy principles because his convictions of the non-forcible sex offenses in the first trial were lesser included offenses under an accusatory pleading test. Scott also contends the trial court in the first trial erred by (1) not instructing that Scott's reasonable belief the victim was 16 years old was a defense to the nonforcible sex offenses, and (2) finding that a prior felony conviction in Minnesota constituted a strike under the "Three Strikes" law. Additionally, Scott assigns error to the giving of CALJIC No. 17.41.1 in both trials, and the calculation of his conduct credits.
On September 3, 1996, Kristina G. and Pamela G., two 14-year-old friends, were at the Burger King Restaurant at the El Camino Real Mall in Carlsbad when they were approached by two men who introduced themselves as "L.A." and "Goody." "Goody" was Scott, who was 40 years old, and "L.A." was Scott's 28-year-old brother. Kristina told the brothers she was 16 years old when they asked her age. Pamela said she was 14 years old. The foursome talked about 20 minutes, and "L.A." and Kristina exchanged telephone numbers before the men left.
On September 4, "L.A." telephoned Kristina and asked if she wanted to go somewhere with him on the following day. Kristina said she would go if she could bring Pamela; and they arranged to meet at the Vista Transit Center. On September 5, "L.A." and Scott picked up Kristina and Pamela and drove them to San Diego. On the way, they stopped at a liquor store and bought alcohol, which the men drank during the trip. After stopping in a park, the men took the girls to their apartment to watch movies. The men told the girls there was nothing to worry about because their girlfriends were at the house and they would just watch movies and hang out.
Their apartment was on the second story and had a security screen door with a lock that locked from the inside with a key. Scott's girlfriend, Michelle, and her baby, and "L.A.'s" girlfriend, Tammy, were inside. Kristina and Pamela sat down in the living room and watched television.
Scott called Kristina into a bedroom and told her he was going to have sex with her even though she did not want to and that she was not going to die from it. Kristina said she was not going to have sex with him and went back to the living room, where she asked "L.A." to take her home. "L.A." said he was busy and wanted to eat first. Scott took Kristina to a nearby Burger King and they ordered food from the drive-through window. Kristina considered getting out of the car but did not do so because she did not want to desert Pamela, who was still in the men's apartment. Pamela also left the apartment once, going with "L.A." and Tammy to rent a video. Pamela did not try to get away because Kristina was in the apartment, and Pamela did not really believe she would be raped if she returned to the apartment even though the men had said they were going to have sex with her.
After Kristina and Scott returned, he took her into a bedroom, and again told her that he was going to have sex with her. She repeatedly said no, but Scott was yelling at her with an angry voice and she was scared. She complied with his orders to take off her clothes and he down because Scott proceeded to put his penis in Kristina's vagina. "L.A." entered the bedroom, and when Scott left, "L.A." raped Kristina.
After Kristina returned to the living room, "L.A." called Pamela into a bedroom and raped her.
Later, "L.A." raped Kristina again and made her orally copulate him in the back bedroom. When Kristina returned to the living room, Scott grabbed Kristina's arm and pulled her into the bathroom and forced her to orally copulate him two times.
Eventually, Tammy and Michelle drove Kristina and Pamela home. Two weeks later, Kristina and Pamela went to a clinic to be tested for venereal diseases. The clinic contacted police. Kristina and Pamela selected Scott and "L.A." from separate photographic lineups.
Scott testified in his first trial that he came to San Diego from Minnesota in July or August 1996, and he and his wife and daughter shared an apartment with his brother, "L.A.," "L.A.'s" girlfriend, Tammy, and another woman. Scott vaguely recognized Kristina and Pamela and remembered seeing them at the apartment; however, he denied ever sexually touching either girl. The girls went in a back bedroom with "L.A." and Tammy, where they had "their own little party going on." Meanwhile, Scott was sitting on the living room couch watching television with his wife and one-year-old daughter. Scott believed "L.A." had herpes, and he would not have sex with any person after "L.A." had sex with that person.
Scott did not testify at his second trial.
In count 1 of the information, Scott was charged with the forcible rape of Kristina, and in count 2, Scott was charged with unlawful sexual intercourse by a person over 21 years with a person under 16 years of age—namely, Kristina. In count 3, Scott was charged with forcible oral copulation with Kristina, and in count 4, Scott was charged with oral copulation by a person over 21 years of age with a person under 16 years of age regarding the same incident. Both counts 3 and 4 dealt with the "first instance" of oral copulation involving Scott and Kristina. In counts 5 and 6, Scott was charged with the same offenses concerning the "second instance" of oral copulation involving him and Kristina.3
Scott contends the retrial of the forcible sex offenses should have been barred under section 1023 and double jeopardy principles based on an argument that under the accusatory pleading test the non-forcible sex crimes were lesser included offenses of the forcible sex offenses. The contention is without merit.
Preliminarily, we note this claim has been waived because it was not raised below. A plea of double jeopardy cannot be raised for the first time on appeal. (People v. Scott (1997) 15 Cal.4th 1188, 1201, 65 Cal.Rptr.2d 240, 939 P.2d 354.) However, we address the merits because Scott has maintained, in a supplemental brief, that his trial counsel's failure to raise this defense constituted ineffective assistance of counsel.
A defendant cannot prevail on a claim of ineffective assistance of counsel unless the defendant can establish (1) counsel performed at a level below an objective standard of reasonableness under prevailing professional norms and (2) the defense was subjected to prejudice flowing from the deficient performance of counsel. (People v. Hamilton (1988) 45 Cal.3d 351, 377, 247 Cal.Rptr. 31, 753 P.2d 1109.) The ineffective assistance claim fails if defendant cannot make a sufficient showing on either of these components. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126, 36 Cal.Rptr.2d 235, 885 P.2d 1.)
The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15, of the California Constitution ensure a person shall not be placed twice "in jeopardy" for the "same offense." (See also § 687.)
As articulated by the Supreme Court in North Carolina v. Pearce (1969) 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 the constitutional prohibition against double jeopardy
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