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People v. Bess6/23/2003
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Richard Donay Bess was convicted by jury of two counts of forcible rape (counts 1 and 5; Pen. Code, § 261, subd. (a)(2)), five counts of forcible oral copulation (counts 2, 3, 4, 6 and 7; § 288a, subd. (c)(2)) and one count of first degree residential burglary with the intent to commit said offenses (count 8; § 459). In a bifurcated trial, the court found true two prior serious felony convictions within the meaning of the Three Strikes Law. (§§ 667, subds. (d)(1) & (e)(1); 1170.12, subds. (b)(1) & (c)(2)(A).) The court denied appellant's motion to strike his previous felony convictions.
Appellant was sentenced to an aggregate term of 105 years to life. On count 1, the court imposed a term of 75 years to life, consisting of 25 years to life, pursuant to section 667.61, tripled pursuant to sections 667, subdivision (e) and 1170.12, subdivision (c).) On count 5, the court imposed a consecutive sentence of 30 years to life, consisting of 25 years to life plus a 5-year enhancement for a prior serious felony. (§§ 667, subd. (a)(1); 1192.7, subd. (c).) Appellant received concurrent sentences of 25 years to life on counts 2, 3, 4, 6 and 7. The trial court imposed a sentence of 25 years to life on count 8 under the Three Strikes law, which it stayed pursuant to section 654. Appellant challenges the sufficiency of the evidence and alleges instructional and sentencing error. He also claims that his sentence constitutes cruel and unusual punishment. We disagree and affirm.
FACTS
Appellant and Rachel S. were residents the same boardinghouse in Lompoc. Rachel had lived at the boardinghouse for six days when appellant sexually assaulted her. The assaults occurred over a three- hour period and took place both in her bedroom and appellant's basement room.
Layout of Boardinghouse
The boardinghouse where the offenses occurred is a tri-level home with five bedrooms. Three bedrooms and a bathroom are on the top level. The bedrooms were occupied by three tenants, Rachel, Chris Jorgenson and Jerry Johnson ("Toby"). Their landlord lived in a room on the second level. The main living room was on the ground floor. Appellant lived in a basement room, just below the main living area. There is one phone line in the house, and each tenant has an extension to that line in their room.
Acts Committed in Rachel's Bedroom
(One Count of Rape and Three Counts of Oral Copulation - Counts 1-4)
Rachel went to bed at approximately 9:30 p.m., but was awakened at about 11:30 p.m. when appellant entered her room. He walked to her bed and held her face against the pillow. He smelled strongly of alcohol. Appellant held something against the base of Rachel's head and told her that it was a gun. He threatened to shoot her if she did not remain quiet. Appellant told Rachel to say "I hate niggers" and "white people hate niggers." He pulled Rachel's head toward his lap and forced her to orally copulate him. He did not ejaculate.
Appellant then told Rachel to take off her clothes. He pushed her against the bed and began having sexual intercourse with her against her will. The assault lasted for about 10 minutes. During this time appellant told Rachel to say, "'Tell your daddy you like it. You know you love it. Please your daddy.'" Appellant did not ejaculate, which made him angry and he became rougher.
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