State v. Mancebo

• Decision Date: 04 January 2000
• Citation: 91 Cal.Rptr.2d 587
• Parties: (Cal.App. 5 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. CHAD MELVIN MANCEBO, Defendant and Appellant. F028473 Filed
• Court: California Court of Appeals Court of Appeals

91 Cal.Rptr.2d 587 (Cal.App. 5 Dist. 2000)

THE PEOPLE, Plaintiff and Respondent, v. CHAD MELVIN MANCEBO, Defendant and Appellant.

F028473

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed 1/4/00

APPEAL from a judgment of the Superior Court of Tulare County.

Gerald F. Sevier, Judge.

(Super. Ct. No. 38599)

Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Venturi and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.

CERTIFIED FOR PARTIAL PUBLICATION^*

OPINION

In the published portion of this opinion we address alleged sentencing errors under Penal Code¹section 667.61, also known as the "One Strike" law. Stated briefly, defendant was convicted by jury of various violent sex offenses committed on separate dates and against different victims, who we refer to as "R" and "Y."

In July 1995, defendant pointed a handgun and ordered Y into his truck. He drove Y to a remote location, on the way forced her to orally copulate him, and later he committed forcible rape twice, sodomy twice, and another act of oral copulation. Pursuant to section 667.61, the information alleged these crimes were committed under the specified circumstances of kidnap and firearm use. ( 667.61, subds. (e)(1) & (4).) In August 1995, after R voluntarily rode with defendant to a remote location, he placed a gun to her head, tied her hands, and committed forcible sodomy upon her. Pursuant to section 667.61, the information alleged these crimes were committed under the specified circumstances of firearm use and binding. ( 667.61, subds. (e)(4) & (6).)

For reasons not disclosed by the record, the information did not allege a multiple victim circumstance pursuant to section 667.61, subdivision (e)(5), and the information was never amended to include this allegation. Even so, the sentencing court applied this circumstance in imposing defendant's sentence. Although the People argue the court committed harmless error, we hold the sentence was unauthorized under the circumstances, and therefore not subject to harmless error analysis. In the unpublished portion of this opinion we reject defendan't remaing contentions, but remand for resentencing on the firearm-use enhancements pertaining to counts 4, 5 and 6, based on respondent's contention that the court imposed and unauthorized sentence on these counts.

PROCEDURAL HISTORY²

By amended information, defendant was charged with 10 offenses against 2 separate victims on different dates. Specifically, he was charged with kidnapping with intent to rape (count 1; 207, subd. (a)/208 subd. (d)) and within the meaning of section 667.8, subdivision (a); second degree robbery (count 2; 211); two counts of forcible rape (counts 3 & 4; 261, subd. (a)(2)); three counts of forcible sodomy (counts 5, 6, & 9; 286, subd. (c)); two counts of forcible oral copulation (counts 7 & 8; 288a, subd. (c)); and forcible anal and genital penetration by a foreign object (count 10; 289, subd. (a)). Regarding all counts, it was alleged that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a). With respect to sex offense counts 3 through 8, it was alleged the circumstances of kidnap and use of a firearm applied, within the meaning of section 667.61, subdivisions (a) and (e). Finally, as to sex offense counts 9 and 10, it was alleged that the circumstances of binding or tying the victim and use of a firearm applied, within the meaning of section 667.61, subdivisions (a) and (e).

Defendant pled not guilty and denied all the allegations. His motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 was denied after the court reviewed the records. Defendant's motion to suppress evidence seized from his home was denied. Finally, defendant's motion for separate trials was denied.

Following a jury trial, defendant was found guilty as charged, and all the allegations were found true.

Probation was denied, and defendant was sentenced to prison for 2 consecutive 35-years-to-life terms on counts 3 and 9 (25 years to life, plus a 10-year gun use enhancement for each offense). In addition, a consecutive determinate term of 85 years was imposed as follows: the principal term of 5 years on count 1, plus a 10-year gun use enhancement; 5 years and 4 months each on counts 4, 5, and 6; and 18 years each on counts 7, 8 and 10 (upper term of 8 years for the underlying offenses plus 10 years for the gun use).

Timely notice of appeal was filed.

FACTUAL HISTORY³

The July 14, 1995, assault

On July 14, 1995, Y was 16 years old and lived in Visalia. Late that afternoon, Y had been with her friends and had snorted amphetamine. She was dropped off at her apartment complex at about 11 p.m. After walking her friend home, Y returned to her apartment and stood outside, smoking a cigarette. At this point, a blue or gray pickup truck pulled up in front of Y. The driver was a man, and he asked Y what she was doing. When Y responded, the man pulled out a gun, ordered Y into the truck, and threatened to shoot her if she did not comply. Y got into the passenger side, and the man, later identified as defendant, drove westbound.

When the truck slowed for an intersection, Y tried to open the door to jump out, but defendant grabbed her, sped up, and turned northbound. He told Y not to try anything stupid again or he would shoot her. Defendant asked Y if she drank alcohol, and she said she did not. Defendant then gave her a beer and told her to drink it quickly, which Y did because defendant had the gun pointed to her head.

As they continued toward the mountains, defendant asked about Y's boyfriend and whether she was sexually active. When Y told defendant she was a virgin, he did not believe her because "he didn't know of any wetbacks being a virgin." As they talked, Y stared at defendant's face so she would be able to identify him if she survived the kidnapping. Defendant had large round eyes and dirty blonde hair. He wore a white shirt and neon green shorts. His socks and tennis shoes were white, but both were dirty. Y continued to stare at defendant until he told her to stop.

Defendant asked Y if she used drugs, and she said she did not. Defendant stated he had done "meth" and some other kind of drug. He was hyper and kept fidgeting, causing Y to suspect defendant was under the influence. Y testified she was not feeling the effects of the drug she had taken earlier.

As he continued to drive, defendant ordered Y to remove her shirt. When she did, defendant grabbed her left breast. He ordered Y to remove her bra, empty her pockets, take off her jewelry and place everything on the dashboard. When Y attempted to comply, defendant pulled off her necklaces because she was too slow. Defendant then ordered Y to remove her pants so he could check the pockets. After doing so, defendant took the belt off and put it on the dashboard. Defendant then began grabbing Y's leg and touched her vagina over her panties. Y asked defendant to stop because she was menstruating. Defendant ordered Y to remove her tampon and throw it out the window, and then resumed touching her vagina.

Defendant next told Y to lay her head on his lap. He took out his penis and told Y to suck it. Defendant grabbed Y and pushed her head towards his penis, holding her down while she orally copulated him. Defendant then hit Y on her lower back and buttocks area with his open hand. He spit on Y, and started hitting her with the belt, telling Y that if she cooperated he might let her go.

Eventually, defendant turned onto a dirt road and stopped in an orchard. Defendant told Y, who was still orally copulating him, to get out of the truck on the driver's side. He ordered Y to face the truck door, lean against it, spread her legs and arch her back. Defendant removed Y's panties and threw them into the truck. He pushed down on Y's back and inserted his penis in her vagina. After awhile, defendant took his penis out and put it into Y's anus. As he did this, Y used her fingernails to scratch the inside of the truck for future identification. Defendant reinserted his penis into Y's vagina. At this time, Y bit on the window's rubber molding to leave teeth marks. After about three minutes, defendant removed his penis and told Y to bend down and touch the ground. When she did so, defendant reinserted his penis into Y's anus. The whole time, defendant held a gun.

After the sodomy, defendant ordered Y to turn around, get on her knees, and suck his penis again. Defendant grabbed Y's head, and pushed it toward his penis area. He told Y not to stop until directed to do so. Y did not know how long she orally copulated defendant, but he ejaculated into her mouth. Y began to gag, and defendant stated, "look, bitch, I didn't tell you to stop, and he pushed [Y's] mouth against his penis again." Y spit the semen on the ground, and some landed on her chest and arm.

Subsequently, defendant tied Y's shirt around her eyes, put her pants back on, and placed her in the truck. He drove for awhile, stopped, and pushed Y out. After defendant drove away, Y found a house and the police were summoned.

Y described the handgun as small and solid black, similar to a .380-caliber semiautomatic Makarov pistol. Y said the rapist was in his early 20s and taller than her, estimating his height at five feet, seven inches. Looking at defendant standing up in the courtroom, Y estimated his height at five feet, seven inches. She said his hair looked different because it was shaved, and at the time of the assault, was dirty blonde and "curly wavy."

A sexual assault examination revealed physical trauma to Y's vagina and anus that were consistent with rape and sodomy. Positive signs of semen were located on Y's chest, neck, the bottom of her chin, and...