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People v. Pier6/18/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant Anthony Pier was convicted by a jury of: Count One-assault with intent to commit rape (Pen. Code, § 220); Count Two-attempted forcible sexual penetration, as a lesser included offense to a charge of forcible sexual penetration (§§ 289, subd. (a)(1), 664); and Count Three-assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury found further that appellant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)(1)), and had served a prior prison term (§ 667.5, subd. (b)). Appellant was sentenced under the "Three Strikes" law to 35 years to life, representing 25 years to life on Count One, plus two consecutive five-year enhancements pursuant to section 667, subdivision (a)(1), with sentences on Counts Two and Three, and the section 667.5, subdivision (b) enhancement, stayed.
Appellant contends that the judgment must be reversed, or that resentencing is required, because: (1) the CALJIC No. 2.21.2 instruction given on willfully false witness' testimony is unconstitutional; (2) the court abused its discretion in failing to strike his prior strike conviction for assault; and (3) the 35 years to life sentence constitutes cruel and/or unusual punishment. We affirm.
I. BACKGROUND
The circumstances of appellant's current offense are of limited relevance to the issues on appeal and may be briefly stated.
The victim, referred to in the briefs and herein as Jane Doe, testified that she stopped by appellant's house on the evening of April 11, 2000, to see appellant's sister Petey. Petey and her boyfriend Damien were sitting in a car in front of the house; Doe talked to Petey for about 10 or 15 minutes before Petey and Damien drove away. After they left appellant offered Doe a drink. When Doe declined the offer and began to walk away, appellant grabbed her by the hood of her jacket, commented on how good she looked, and said he was going to have sex with her. Doe resisted, but appellant kept hold of her jacket and continued demanding sex. He then dragged Doe into the back yard and pinned her on the ground by a tree stump, telling her he was going to "fuck" her. When Doe resisted and screamed, appellant punched her in the face about ten times, and told her that if she did not stop screaming, he was going to "use his shit." Doe understood this threat to refer to a gun, and she felt what she thought was a gun on the side of appellant's pants. While restraining Doe, appellant ripped her underpants and put his hand inside her vagina. Doe eventually escaped and called the police. She suffered bruises on her face, shoulder and arm, and pain in her back, face and vagina.
The defense called the police officer who responded to Doe's call on the night of the assault; the officer said Doe reported at that time that there had been "no touching of a sexual manner." Petey and Damien contradicted Doe's account of what transpired before they left Doe and appellant at the house. It appeared to Petey-who had pled guilty to threatening and intimidating Doe after appellant's arrest-that Doe and appellant were going to have consensual sex that night.
II. DISCUSSION
A. CALJIC No. 2.21.2
The jury was instructed with CALJIC No. 2.21.2 as follows: "A witness who is willfully fals
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