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People v. Beaudoin1/4/2005
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury convicted defendants Shane Andrew Beaudoin and Ronald David Hurst each of two counts of rape by use of drugs (Pen. Code, § 261, subd. (a)(3)), and one count of kidnapping (Pen. Code, § 207, subd. (a)). The jury also convicted Hurst of one count of resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). Beaudoin pled no contest to a similar charge. Beaudoin also admitted he had previously served a separate term in state prison (Pen. Code, § 667.5, subd. (b)), and had previously been convicted of a "serious felony" within the meaning of the "Three Strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The jury acquitted defendants of one count of rape and another count of rape in concert. (Pen. Code, §§ 261, subd. (a)(2), 264.1.)
The trial court sentenced Beaudoin to a prison term of 32 years 4 months, calculated as follows: the upper term of 8 years for the rape by use of drugs, the middle term of 6 years for the second rape by use of drugs, the middle term of 1 year 8 months for the kidnapping charge, all doubled under the Three Strikes law and served consecutively. In addition, the court imposed a 1-year consecutive term for the prior prison term enhancement, and a 1-year concurrent county jail term for the resisting-a-peace-officer misdemeanor.
The trial court sentenced Hurst to a prison term of 17 years 8 months, calculated as follows: the upper term of 8 years on each of the rape by use of drugs charges, and 1 year 8 months on the kidnapping charge, all to be served consecutively. As with Beaudoin, the court imposed a 1-year concurrent county jail term for the resisting-a-peace-officer misdemeanor.
Before us, both defendants assert the trial court committed prejudicial error by (1) instructing the jury with CALJIC No. 2.03, directing the jury's attention to specific items of evidence from which an inference of guilt could be drawn; (2) instructing the jury with CALJIC No. 2.90; and (3) imposing upper terms and consecutive sentences in violation of Blakely v. Washington (2004) 542 U.S. __ [159 L.Ed.2d 403].
Hurst also claims (1) he was denied effective assistance of counsel when his attorney failed to recognize the Aranda-Bruton problem caused by the admission of co-defendant Beaudoin's post-arrest statements and failed to move to redact the statements or for a mistrial after their admission; and (2) the trial court erred by sentencing him to full, separate and consecutive terms under Penal Code section 667.6 on the rape by use of drugs charge.
We affirm.
FACTS
On the evening of April 17, 2002, the victim, 17-year-old Debra G., was staying the night at the apartment of her sister, Jennifer, and Jennifer's fiancé, Donald Brown, Jr. Debra was wearing a bathing suit under a pair of gray sweat pants and a pullover shirt. The three drank alcoholic beverages as they watched a video together. After Jennifer and Donald went to bed, Debra went outside on the balcony to smoke a cigarette.
While there, she noticed defendant Hurst standing on a balcony outside an apartment occupied by Teal LeBaron and her boyfriend, defendant Beaudoin. Casually acquainted with Hurst, Debra went and sat on the stairs and talked with him for about 30 minutes.
After Debra went back inside Jennifer's apartment, Hurst telephoned and asked her to bring him som
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