People v. Wells, B236446

• Decision Date: 02 January 2013
• Docket Number: B236446
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DITRICK WELLS et al., Defendants and Appellants.

THE PEOPLE, Plaintiff and Respondent, v. DITRICK WELLS et al., Defendants and Appellants.

B236446

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Filed: January 2, 2013

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. NA086325)

APPEALS from judgments of the Superior Court of Los Angeles County, Joan Comparet-Cassini, Judge. Modified with directions.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant Ditrick Wells.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant Edward Tyler.

David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Keshia Gordon.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Theresa A. Patterson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendants, Ditrick Wells, Edward Tyler and Keisha Gordon, of multiple crimes against one or more victims: second degree robbery (Pen. Code,¹ § 211); kidnapping to commit another crime (§ 209, subd. (b)(1)); forcible oral copulation (§ 288a, subd. (c)(2)); forcible rape (§ 261, subd. (a)(2)); sodomy by use of force (§ 286, subd. (c)(2)); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)); and attempted extortion (§ 524). ² The trial court sentenced Mr. Wells to 548 years to lifein state prison. Mr. Tyler was sentenced to 472 years to life. Ms. Gordon was sentenced to 205 years to life. We modify the judgments to: reverse the 8-year terms (as to Mr. Tyler and Ms. Gordon) and the 16-year terms (as to Mr. Wells) imposed on each of the sex offense convictions; impose $880 in court operations assessments and $660 in court facilities assessments as to Mr. Tyler; impose $300 in court facilities assessments as to Ms. Gordon; impose $510 in court operations assessments as to Mr. Wells; impose a $10,000 parole revocation restitution fine (§ 1202.45) as to each defendant; award Mr. Wells 443 days of presentence custody credit plus 66 days of conduct credit for a total of 509 days; and award Mr. Tyler and Ms. Gordon 441 days of custody credit plus 66 days of conduct credit for a total presentence custody credit of 507 days. We also modify the judgment to impose a concurrent 25-years-to-life term on count 12 as to Mr. Wells. Upon remittitur issuance, the trial court may correct its failure to set forth in the minutes its reasons for exercising its section 1385, subdivision (a) discretion in sentencing Mr. Wells on count 10. Alternatively, the trial court may revisit its decision. In all other respects, the judgments are affirmed.

II. THE EVIDENCE

A. Victim K. W.

On June 17, 2010, Mr. Tyler assaulted K. W., a prostitute. He dragged her to a corner and punched her in the face. He dragged her from the street to behind a truck stop. He took her cellular telephone from her hand and put it in his pocket. When K. W. told Mr. Tyler she was pregnant, he hit her with a gun, breaking her nose. On July 15, 2010, Mr. Tyler confessed to Detective Jennifer Kearns that he had assaulted K. W. He said he wanted to be K. W.'s pimp. Mr. Tyler denied he had used a gun. The confession was not recorded.

B. Victim C. G.

In the early morning hours of July 2, 2010, defendants assaulted C. G., a prostitute. Mr. Wells and Mr. Tyler punched her in the head. Ms. Gordon pushed C. G. into some bushes and kicked her in the face. Mr. Wells pulled C. G. from the bushes. He tore her clothing off and pushed her into the back seat of a sport utility vehicle. C. G. wore only shoes and a coat. Mr. Wells sat on one side of C. G. Mr. Tyler sat on the other side. Ms. Gordon sat in the front passenger seat. An unidentified fourth man drove the sport utility vehicle. Mr. Wells took C. G.'s cellular telephone, car keys and driver's license out of her bra.

During a drive from Compton to Long Beach, Mr. Wells forced C. G. to orally copulate him. Mr. Wells also ordered her to orally copulate Mr. Tyler. During the sexual assault, Ms. Gordon said C. G. was a "bona fide ho." Ms. Gordon also said C. G. would make them money. Defendants told C. G. they would be her pimp. Mr. Wells then ordered C. G. to stop orally copulating Mr. Tyler. She stopped "for a minute." Mr. Tyler asked Ms. Gordon for a condom. After donning the condom, Mr. Tyler raped C. G. as Mr. Wells forced her to orally copulate him. (This use of a condom was the only timeany defendant used one during the assaults on C. G.) The parties then changed position; Mr. Wells raped C. G. (The Attorney General asserts, "[C. G.] did not testify that Wells raped her in the SUV." However, the record is otherwise.) As this was occurring, Mr. Tyler forced C.G. to orally copulate him. While these acts were occurring in the back seat, Ms. Gordon punched C. G. in the face at least eight times. Ms. Gordon took earrings, a necklace and rings from C. G.'s person.

The unidentified driver stopped at a Long Beach apartment complex. The occupants exited the sport utility vehicle. Mr. Wells pulled C. G. out of the back seat. He grabbed her cellular telephone as it began to ring. Mr. Wells spoke to the caller. Mr. Wells demanded $1,000 to secure C.G.'s release. A series of telephone calls followed, during which the caller was directed to a Travelodge Motel. The caller reported the events to an emergency operator.

Defendants, the unidentified driver and C. G. reentered the sport utility vehicle. Ms. Gordon pushed C. G. into the backseat between Mr. Wells and Mr. Tyler. As this was occurring, C. G. saw her driver's license and picked it up. Ms. Gordon took the driver's license from C. G. The unidentified driver drove to a parked gray or silver Pontiac. Mr. Tyler pushed C. G. into the backseat of the Pontiac where he joined her. Mr. Wells drove. Ms. Gordon and the unidentified driver left in the sport utility vehicle. While in the Pontiac's back seat, Mr. Tyler forced C. G. to orally copulate him. Mr. Wells parked the Pontiac on a dead-end street. Mr. Tyler, Mr. Wells and C. G. entered a garage. It contained a pool table and two couches.

In the garage, Mr. Wells bent C. G. over the pool table and grabbed her neck. He then sodomized and raped her. Mr. Wells left the garage. Mr. Tyler forced C. G. to bend over on a couch. He then proceeded to rape her and attempted to sodomize her. Mr. Wells got up and moved C. G. to a larger couch at the back of the garage. There he forced her to lie on her back and raped her again.

Mr. Wells, Mr. Tyler and C. G. left the garage and walked out to the street. Ms. Gordon and the unidentified driver returned in the sport utility vehicle. Ms. Gordonrepeatedly punched C. G. in the face until the men stopped her. Mr. Wells told Mr. Tyler to get "rid of" C. G.

Mr. Tyler pushed C. G. towards the backyard of a house. There he sodomized her again. As they returned to the street, C. G. attempted to walk away. Mr. Tyler caught her. He proceeded to walk the streets with C. G. who was nude. Mr. Tyler asked a man they encountered, "Do you want some?" Mr. Tyler hit C. G. in the forehead after she turned in response to a car horn. When she fell down, Mr. Tyler kicked her. Mr. Tyler left in the sport utility vehicle with Mr. Wells and Ms. Gordon.

During a subsequent sexual assault examination at a hospital, deoxyribonucleic samples were lifted from C. G.'s hands and vaginal and anal areas. Sperm found in C. G.'s vagina matched Mr. Tyler as a major contributor. Mr. Wells was identified as a possible minor contributor. Detective Nader Chahine recovered a silver car at a location in Long Beach. Mr. Wells and Mr. Tyler were at the location when the car was retrieved.

C. G. identified a photograph of Mr. Wells as the man who sexually assaulted and beat her. Detective Chahine and a partner arrested Mr. Wells on July 13, 2010. Mr. Tyler was with Mr. Wells at that time. Because Mr. Tyler matched the description of a suspect in the case, Detective Chahine prepared a photographic lineup. The lineup included Mr. Tyler's photograph. Shown the photographic lineup, C. G. identified Mr. Tyler. She said of Mr. Tyler: "This guy raped me. Beat me. Had sex with me." Mr. Tyler was arrested on July 15, 2010. C. G. also identified Ms. Gordon in a separate photographic lineup. During a post-arrest audiotaped interview, on July 15, 2010, Mr. Tyler confessed to Detectives Chahine and Arthur Thomas. Mr. Tyler admitted that he had engaged in sexual acts with C. G. Mr. Tyler said he was a pimp and he wanted C. G. to work for him but she refused.

C. Victims R. P. and S. U.

In the early morning of July 4, 2010, Mr. Tyler accosted R. P. and S. U. He threatened to shoot the women. He took R. P.'s cellular telephone from her hand. Heasked the two women whether they were prostitutes. Mr. Tyler told R. P., "I'm taking you to work for me[.]" He told S. U. that she could leave. But Mr. Tyler threatened to shoot R. P. if S. U. yelled or signaled to anyone. S. U. walked away. Mr. Tyler escorted R. P. down the street to where Mr. Wells waited. Mr. Tyler dragged R. P. into a small alley and between two parked cars where he raped her. R. P. asked Mr. Tyler whether there was any way she could get herself out of "this" and he agreed that she could buy him off. They walked back to the street where Mr. Wells waited. After a police car drove past, they returned to the alley. Mr. Wells forced R. P. to orally copulate him. He also raped her. R. P. subsequently escaped and sought help. Mr. Tyler later confessed that he had sexual contact with R. P. He claimed that it was consensual....