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People v. Castle3/18/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant appeals from a 12-year sentence imposed following his plea of no contest to allegations of forcible oral copulation and rape. He argues the court erred in failing to select the low state prison term and in ordering that he serve full consecutive terms. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
There was no preliminary hearing. We set out the facts based on the probation report, prepared for the sentencing hearing.
A police officer was dispatched at 1:30 a.m. on January 9, 2002, to investigate a reported rape. He contacted the complaining witness, Kellie C., who was very upset, sobbing, and shaking. Her hair was in disarray and her bra was sticking out of the collar of her blouse. She reported that she had gone to a lodge in Fort Bragg to have a drink earlier in the evening. There defendant, a stranger, began to talk to her. She decided to leave and walk home. Defendant asked if he could walk with her, to which she responded that she was old enough to walk by herself. Nevertheless, defendant followed her out of the bar and the two began walking towards her residence. They walked through a parking lot and into an adjacent alley. At Kellie's suggestion they went onto the roof of a nearby building where they each drank one beer. They came down from the roof and defendant tried to kiss her, but Kellie put up her hands and said, "No." Defendant became angry, grabbed her by the neck and choked her. Covering her mouth with his hand he asked, "Are you going to do what I tell you?" Kellie could not breathe and felt as though she were going to pass out. She answered his question by nodding up and down. Defendant pulled her pants and underwear down and her shirt and bra up over her head. He first raped her, then forced her to orally copulate him and finally sodomized her. Kellie was able to flee while defendant's pants were still around his ankles. She escaped to a friend's home and called for help.
After Kellie picked defendant out of a photo lineup, he was arrested. He admitted having intercourse with Kellie but initially claimed the act was consensual. When an officer accused him of being untruthful, he admitted that he removed Kellie's pants, and began to have intercourse. Kellie told him to stop once or twice and he "felt bad afterwards." He admitted forcing Kellie onto the grass and covering her mouth. He told her, "Shut your fucking mouth," as she sobbed loudly and told him to stop. Defendant admitted he continued to engage in intercourse for several minutes but said: "I had to stop, because I could not take her sobbing anymore." He said they sat on a bench afterward and described Kellie as very quiet and sobbing.
The probation report noted that defendant had an alcohol problem and was staying at a "recovery house." He claimed to have been drinking that evening because of marital problems. The report also disclosed defendant's four prior misdemeanor convictions. Those convictions included one for a sexual battery on a 14-year-old girl committed when defendant was 23 years old. At the time of the current offenses defendant was still on probation for a 1997 driving-under-the-influence- conviction.
Defendant was originally charged with four felonies: forcible rape, oral copulation, and sodomy as well as making a criminal threat. The latter two allegations were dismissed pursuant
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