People v. Gonzalez4/11/1983
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE
Crim. No. 42433
1983.CA.40906 ; 190 Cal. Rptr. 554; 141 Cal. App. 3d 786
April 11, 1983
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DANNY LOPEZ GONZALEZ, DEFENDANT AND APPELLANT
Superior Court of Los Angeles County, No. AO20449, Roy J. Brown and Sheila F. Pokras, Judges.
Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Suzan E. Hier and Janice L. Feinstein, Deputy State Public Defenders, for Defendant and Appellant.
George Deukmejian and John K. Van de Kamp, Attorneys General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Howard J. Schwab and Jane M. Began, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Ashby, J., with Feinerman, P. J., and Stephens, J., concurring.
Ashby
After trial by jury, appellant Danny Lopez Gonzalez was found guilty of one count of forcible rape (Pen. Code, § 261, subd. (2)) and one count of forcible sodomy (Pen. Code, § 286). He was sentenced to state prison for the midterm of six years on both counts, the sentences to run concurrently. He received 113 days' custody credit and 38 days' conduct credit for a total of 151 days.
On appeal, appellant contends that (1) there was insufficient evidence of penetration to support his conviction of forcible sodomy; (2) the trial court committed prejudicial error by failing to give certain jury instructions sua sponte ; and (3) his presentence custody credits were improperly calculated.
Facts
On June 13, 1979, Mrs. Dolores E., an elderly widow who had recently arrived from Mexico, was living at the house of her friend Maria G. At about 11
a.m., appellant came to the house. Mrs. E. allowed appellant to come inside because she recognized him as a friend of Maria's to whom she had been introduced two days before.
Mrs. E. explained that Maria and her family were not at home. Appellant asked for a glass of water and followed her into the kitchen. Mrs. E. then went to her bedroom to get her cigarettes, and again appellant followed her. He closed the door behind him and leaned against it. When she tried to get out, he physically restrained her.
Appellant asked Mrs. E. to put on some lighter clothes for him. In order to get outside, she told him her clothes were in another room. Appellant opened the bedroom door, but continued to hold onto her. Mrs. E. went into the bathroom, thinking he would let her go there alone. Appellant, however, would not let go and followed her inside.
In the bathroom, appellant began to undress Mrs. E. and himself. She tried to prevent him, but he told her not to resist or he would hit her hard and would cover her mouth, and since they were alone, no one would hear her. He continued to threaten her, undressed her completely, and forced her to lie on the bathroom floor. Against her will, he had sexual intercourse with her. It was painful and she began to bleed.
Appellant then yanked Mrs. E.'s head up by her hair and forced her to lean forward over a clothes hamper. There, he sodomized her, but it hurt a lot and she resisted. Appellant stopped, and Mrs. E. asked him not to climax inside of her. He went to the toilet
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