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People v. Vega3/12/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
I. Statement of the Case
A jury convicted defendant Ernest Vega of assault with intent to commit rape, attempted rape, false imprisonment, and attempted sexual penetration. Defendant admitted that he had four strike felony convictions, including two serious felony convictions, and that he had served a prison term. The court sentenced him under the "Three Strikes" law, imposing a term of 25 years to life for assault and identical concurrent terms for the other three offenses. The court also imposed two consecutive five-year serious-felony enhancements and a consecutive one-year prison-term enhancement.
On appeal from the judgment, defendant claims the court erred in excluding evidence that he knew a felony offense would trigger a harsh Three Strikes sentence. He further claims the court erred in giving CALJIC No. 17.41.1 and in declining to dismiss his strike convictions. Last, he claims his sentence violates the constitutional proscriptions against cruel and unusual punishment.
We affirm the judgment.
II. Facts
On November 15, 2000, at around 5:00 p.m., Maria Z. and her nine- year-old daughter got off a light rail train in downtown San Jose and started walking home along First Street. After a while, they realized that a man-defendant-was following them. Twice they stopped to let him pass, but he stayed behind them. Maria and her daughter then turned onto Hobson Street and initially thought they had eluded him. However, when Maria turned to look, he was right in front of her. He asked her where Second Street was, and as she raised her arm to point, he wrapped his arms around her, forced her to the ground, and got on top of her, saying " `Give me my papers.' " She screamed for her daughter to run, and he covered her mouth. Straddling her, he started to unzip his pants and then reached inside her pants but above her underwear and touched her vaginal area. Maria struggled against him, and her daughter, who did not run, beat him on the head. Ultimately, defendant stopped, and Maria fled with her daughter, leaving various documents of hers behind on the ground. From a distance, she saw defendant picking papers up off the ground. At home, Maria called the police. When they arrived, she said a man attacked her and tried to steal her papers.
When asked why she did not initially tell police that defendant had also groped her, Maria testified that people and Inez were present, and she was too ashamed to mention it in front of them. Maria admitted that the next day, police asked her if defendant had been sexual, and she did not respond. She testified that she still did not want to talk about it. Some days later, she spoke to police again, and, after being warned to tell the truth, she indicated that the attack had been sexual.
Maria's daughter testified that defendant followed them from the light rail and then asked her mother for directions. When her mother responded, he threw her down and got on top of her, saying "Give me my papers." When he covered her mother's mouth to keep her from yelling, Maria's daughter started hitting him on the head and yelling. Later, her mother got up and grabbed her hand, and they both ran away.
Defendant's parole officer Joseph Basile testified that defendant called him immediately after the incident. He was nervous and excited a
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