NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Filed 1/24/06 P. v. Mitchell CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. ANGELO MITCHELL, Defendant and Appellant. A108459 (San Francisco County Super. Ct. No. 189978) Defendant Angelo Mitchell appeals his conviction by jury trial of three counts of forcible oral copulation (Pen. Code, 1 288a, subd. (c)(2)) (counts 5, 6, & 7); sexual battery ( 243.4, subd. (a)) (count 8) and making a terrorist threat ( 422) (count 9). As to the oral copulation counts, the jury found true the aggravated kidnapping circumstance allegations ( 667.61, subds. (a) & (d)(2)). In a bifurcated trial, the jury found true two prior conviction allegations. 2 ( 667.5, subd. (b).) Defendant was sentenced to 27 years to life in state prison. 1 All undesignated section references are to the Penal Code. 2 On the prosecutor s motion, the court dismissed counts of aggravated kidnapping ( 209, subd. (b)(1)) (counts 1 & 4) committed against K.K., the victim in this appeal, and against E.F., a different victim. The jury deadlocked and a mistrial was declared as to the remaining counts of forcible oral copulation (count 2) and sexual battery (count 3) committed against E.F. 1

Defendant contends the court committed instructional and sentencing error, and erroneously identified him as the perpetrator of the offenses. We remand the matter for resentencing and otherwise affirm the judgment. 3 BACKGROUND At approximately 5:30 a.m., on October 1, 2002, the victim, K.K., a nursing student, was walking to her hospital clinical rotation on Hayes Street in San Francisco. She noticed a man wearing a puffy, off-white jacket, standing next to a car parked across the street. K.K. continued walking, and the man crossed the street directly in front of her and began rattling an apartment building gate. After K.K. walked past him, the man grabbed her from behind by placing his arm around her neck in a choke hold and lifting her off the ground. K.K. described the man as African-American, about six feet tall, with medium build, chubby cheeks and really big eyes. He smelled of alcohol. K.K. was unable to breathe or make a sound. The man told her not to talk and continued to choke her while he dragged her across the street into a carport. At the back of the darkly lit carport, the man sat her down and threatened to shoot her if she said anything. He told her he wanted her to suck his dick, and made her repeat that. She turned around and squatted while he put his penis in her mouth and his hands on her shoulders and head, and used his legs to keep her from moving. After several minutes she cried uncontrollably, pulled her head away and tried to push him away. The man put his penis back in K.K. s mouth. When she again started to cry and pulled her head away, he reached behind him and threatened to shoot her. He placed his penis in her mouth a third time and said if he did not ejaculate he would fuck her. He then fondled her breast under her clothing while continuing to force her to orally copulate him. The man then stopped, backed away from K.K. and began walking toward the carport door. When she tried to move past him, he pushed her back inside the carport. 3 Defendant has filed a related petition for habeas corpus asserting a claim of ineffective assistance of counsel. 2

He then left the carport and started running. K.K. saw two police officers across the street and said, That s him, get him. At trial, K.K. said she was 120 percent sure that her attacker was defendant. San Francisco Police Officer Whitney noticed a black male wearing a puffy white jacket, dark pants and tan or brown beanie, emerge from behind a fence and walk past him. Shortly thereafter, Officer Whitney saw K.K., looking terrified and disheveled, emerge from the same area behind the fence. When K.K saw Officer Whitney, she pointed at the man and said, that s him, that s him, stop him, stop him. Officer Whitney and the man locked eyes and Officer Whitney was able to observe the man s face for three or four seconds. Officer Whitney saw no one else on the street at that time. In response to Officer Whitney s order to come over here, the man took off running and a chase ensued. The man was apprehended several blocks away and taken into custody. At trial, Officer Whitney identified defendant as the man he pursued and helped apprehend. DISCUSSION I. The Jury Instructions Properly Referred to the Charges by Count Number Defendant contends that the court s instructions, which identified the crimes charged by the count number alleged in the information, were obtuse, unclear, confusing and incomprehensible, since there is no evidence that each juror had a copy of the information at the time the instructions were read or during deliberations. Procedurally, we note that defendant s failure to raise this issue in the trial court waives the issue on appeal. An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not presented to the lower court by some appropriate method.... (People v. Saunders (1993) 5 Cal.4th 580, 590, citing Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) The claim fails substantively as well. The trial court is required to instruct the jury on the points of law applicable to the case. No particular form is required as long as the instructions are complete and correctly state the law. Instructions must be read together 3

and understood in the context in which they were presented to the jury. Whether the jury has been correctly instructed depends on the entire charge of the court. An erroneous instruction requires reversal only when it appears that the error was likely to have misled the jury. (People v. Tatman (1993) 20 Cal.App.4th 1, 10-11.) Pursuant to this standard, no error is demonstrated. When the trial court commenced giving its jury instructions, each juror was given a copy of the court s written jury instructions to keep through the end of deliberations. In defining each of the charged offenses and the aggravated circumstance allegations, the court referred to their count number, Penal Code section and descriptive identification. During deliberations, the jury had a copy of the information and the written verdict forms, which defense counsel stipulated to be correct in form. The written verdict forms identified each count alleged in the information by count number and Penal Code section, identified the particular victim by name and contained a written description of each offense or allegation. At no time did the jury indicate any confusion regarding which count numbers applied to which offenses. Moreover, their verdicts, convicting defendant of all of the offenses against victim K.K., but none against victim E.F., demonstrate that the jury was able to understand and differentiate between the various charges and the instructions thereon. II. The Court s Instructions on Intent Were Not Capable of Misleading the Jury Defendant also contends the court s manner of instructing the jury on intent was confusing. The challenged instruction states: In the crimes alleged in counts... 5, 6, and 7 and allegation charged in counts... 5, 6, [and] 7, namely Penal Code section 667.61 (a) [and] (e)(5), there must exist a union or joint operation of act or conduct and general criminal intent. General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful. Defendant asserts that this instruction was tantamount to omitting instructions on the required intent in the numbered counts and allegations. We disagree. 4

Before instructing the jury on the charged offenses and aggravated circumstance allegations, the court instructed on general and specific intent. In doing so, it noted which offenses and sentencing allegations required general intent and which required specific intent. Thereafter, when defining each offense and sentencing allegation, the court identified whether the particular offense or sentencing allegation required general or specific intent. Viewed as a whole, the instructions clearly identified the substantive offenses and sentencing allegations, and properly instructed the jury as to the elements and intent required. No instructional error is shown. III. The Jury Was Adequately Instructed on Section 667.61, Subdivision (d)(2) Next, defendant contends the court erroneously instructed the jury with a modified version of CALJIC No. 9.52.1 on the aggravated kidnapping sentencing circumstance. ( 667.61, subdivision (d)(2)) (hereafter section 667.61(d)(2).) 4 Section 667.61(d)(2), part of the one strike law, requires the trial court to sentence a defendant found to have committed enumerated sex offenses (including oral copulation) under aggravating kidnapping circumstances, to 25 years to life. (People v. Jones (1997) 58 Cal.App.4th 693, 703 (Jones I).) The trial court instructed on section 667.61(d)(2) as follows: Defendant is accused in an allegation under counts... 5, 6 and 7 of having committed the crime of kidnapping the victim thereby substantially increasing the risk of harm to the victim beyond the level inherent in the underlying offense within the meaning of Penal Code section 667.61[, subdivisions (a) and (d)(2)]. Every person who, with specific intent to commit forced oral copulation, kidnaps any individual, is guilty of the aforesaid allegation. 4 Section 667.61(d)(2) provides: The following circumstances shall apply to the offenses specified in subdivision (c) [(which include forcible oral copulation)]: [ ]... [ ] (2) The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c). 5

The specific intent to commit forced oral copulation must be present when the kidnapping commences. Kidnapping is the unlawful movement by physical force of a person without that person s consent for a substantial distance where the movement is not merely incidental to the commission of the forced oral copulation and where the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of forced oral copulation itself. Kidnapping is also the unlawful compulsion of another person without that person s consent and because of a reasonable apprehension of harm, to move for a substantial distance where the movement is not merely incidental to the commission of the forced oral copulation and where the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of forced oral copulation itself. Brief movements to facilitate the crime of forced oral copulation, are incidental to the commission of the forced oral copulation. On the other hand, movements to facilitate the forced oral copulation that are for a substantial distance rather than brief are not incidental to the commission of the forced oral copulation. Further, the scope and nature of the movement which includes the actual distance a victim is moved and the context of the environment in which the movement occurred are additional factors to consider to determine whether or not the movements to facilitate the crime of forced oral copulation are incidental to the commission of the forced oral copulation. In order to prove this crime, each of the following elements must be proved: 1. A person was unlawfully moved by the use of physical force; 1a. A person was unlawfully compelled to move because of a reasonable apprehension of harm; 2. The movement of the person was caused with the specific intent to commit forced oral copulation, and the person causing the movement had that specific intent when the movement commenced; 6

3. The movement of the person was without that person s consent; 4. The movement of the person was for a substantial distance, that is, a distance more than slight, brief or trivial; 5. The movement substantially increased the risk of harm to the person moved, over and above that necessarily present in the crime of forced oral copulation itself; and 6. The movement of the person is beyond that merely incidental to the commission of the crime of forced oral copulation itself. We note at the outset, that defendant s claim of instructional error as to section 667.61(d)(2) is rambling, not clearly and succinctly articulated and devoid of any citation of authority in support of his assertion that the court s instructions were inadequate, incomplete, unclear, misleading and confusing. In addition, defendant s brief is replete with seemingly rhetorical questions that serve to obfuscate, rather than clarify, his instructional error claim. Positions in an appellate brief must, if possible, be supported by appropriate legal authority (Cal. Rules of Court, rule 14(a)(1)(B)), and we need not consider an argument unsupported by legal authority (See Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384). In any case, we will attempt to distill and address the thrust of appellant s claim of error. Defendant argues that the risk of harm element for violation of section 209, subdivision (b)(2) (hereafter section 209(b)(2)) (aggravated kidnapping) differs from the risk of harm element for the section 667.61(d)(2) aggravated kidnapping circumstance and the court erroneously instructed the jury on the standard and manner for measuring the risk of harm under section 209(b)(2). In particular, he asserts that section 209(b)(2) requires movement of the victim that is not merely incident to the commission of the intended underlying offense and substantially increases the risk of harm over and above that naturally present in the intended underlying offense, while section 667.61(d)(2) requires movement of the victim which substantially increases the risk of harm over and above that necessarily inherent in the underlying offense. Defendant s argument was rejected in Jones I. The Jones I court noted that the trial court properly instructed the jury pursuant to section 667.61(d)(2), that it had to find 7

whether or not the movement of the victim substantially increased the risk of harm to the victim over and above the level of risk necessarily inherent in the underlying offense, and that the underlying offense was that charged in that particular count. (Jones I, supra, 58 Cal.App.4th at p. 713.) Jones I rejected the instructional error claim on an alternative ground: For purposes of both [section 209, subd. (b)] and the aggravated kidnapping circumstance [( 667.61(d)(2))], the risk of harm element focuses on the movement of the victim during the kidnapping, and the resulting risk of harm. (Jones I, at p. 713.) In this case, as in Jones I, the jury was properly instructed that it had to find whether or not movement of the victim substantially increased the risk of harm to the victim over and above the level of risk necessarily inherent in the underlying sex crime itself, which the court here specified was the forced oral copulation. Defendant also argues that the risk of harm element in section 667.61(d)(2) should be shown by an actual, rather than a possible, increased risk of harm, and suggests what instruction should have been given. That argument was also rejected in Jones I. In discussing the requisite risk of harm for section 667.61(d)(2), Jones I stated, we are not speaking of some particular robbery or sexual offense, but rather of a hypothetical, typical robbery or sexual offense. (Jones I, supra, 58 Cal.App.4th at p. 714.) As to defendant s suggested more complete instruction, his failure to proffer that instruction below precludes our consideration of it on appeal. (People v. Welch (1999) 20 Cal.4th 701, 757.) Next, defendant appears to argue that the perpetrator must specifically intend that the movement of the victim would substantially increase the risk of harm to the victim beyond the risk inherent in the sexual offense, and that the trial court erred in failing to so instruct the jury. However, various courts have rejected a specific intent requirement as to the movement of the victim. (See Jones I, supra, 58 Cal.App.4th at pp. 716-717; [ 667.61(d)(2) does not require specific intent to facilitate underlying crime]; accord, People v. Diaz (2000) 78 Cal.App.4th 243, 246 [incidental movement not subject to 8

separate intent test]; see also People v. Campbell (2000) 82 Cal.App.4th 71, 78 [attacker s objective in performing prohibited acts under 667.61(e)(6) irrelevant].) 5 Section 667.61(d)(2) applies if: (1) the defendant is convicted of a specified sexual offense, (2) [t]he defendant kidnapped the victim of the sexual offense, and (3) the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the sexual offense. ( 667.61, subds. (a), (c) & (d)(2)].) (Jones I, supra, 58 Cal.App.4th at pp. 716-717.) In essence, section 667.61(d)(2) requires a simple kidnapping ( 207, subd. (a)) and a substantially increased risk of harm to the victim over and above that necessarily present in the underlying enumerated sex offense. (People v. Diaz, supra, 78 Cal.App.4th at pp. 245-246.) The instructions given to the jury included all of the elements necessary to find true a section 667.61(d)(2) allegation. The jury was instructed that: the kidnapping required the unlawful movement of a person without the person s consent by physical force or compulsion; the movement of the person must be for a substantial distance, i.e., more than slight, brief or trivial; the movement must be beyond that which was incidental to the commission of the forced oral copulation; and the movement must substantially increase the risk of harm to the person over and above that necessarily present in the crime of forced oral copulation. Considering the instructions as a whole and the language of the verdict forms, the jury was adequately instructed on the elements of the section 667.61(d)(2) allegation. No instructional error is shown. 5 As the People point out, Jones I concluded that section 667.61(d)(2) may apply if the defendant kidnaps the victim as an afterthought after committing the sexual offense, or kidnaps the victim for another purpose and thereafter, as an afterthought, commits the sexual offense. (Jones I, supra, 58 Cal.App.4th at p. 717.) However, here the trial court instructed the jury that The specific intent to commit forced oral copulation must be present when the kidnapping commences. Clearly, any error in so instructing inured to defendant s benefit. 9

IV. The Court Erred in Imposing Concurrent Life Terms on the Oral Copulation Counts Defendant contends that although he was convicted of three counts of forcible oral copulation committed against K.K., the evidence established only one indivisible offense of oral copulation committed with a single intent. 6 He argues that pursuant to either section 654 or section 667.6, subdivision (c), his three convictions should be reduced to one conviction and the matter remanded for resentencing. The People rejoin that the evidence showed three separate acts of forcible oral copulation, but that pursuant to section 667.61, subdivision (g) (hereafter section 667.61(g)), defendant could only be sentenced to a single 25-years-to-life term because the sex offenses occurred on a single occasion, that is, they were committed in close temporal and spatial proximity. (People v. Jones (2001) 25 Cal.4th 98, 107 (Jones II); People v. Stewart (2004) 119 Cal.App.4th 163, 174-175.) We agree. 7 Section 667.61(g) provides, in relevant part: The [25-years-to-life] term specified in subdivision (a)... shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified in subdivision (a)... shall be imposed on the defendant once for each separate victim. In Jones II, the Supreme Court analyzed the phrase single occasion in section 667.61(g) and concluded that sex offenses occurred on a single occasion if they were committed in close temporal and spatial proximity. (Jones II, supra, 25 Cal.4th at pp. 106-107.) The court stated, this rule should result in a single life sentence, rather than [multiple] consecutive life sentences, for a sequence of sexual assaults by defendant against one victim that occurred during an uninterrupted time frame and in a single 6 The court imposed concurrent 25-years-to-life terms on the three oral copulation counts. 7 In his reply brief defendant accepts and appreciates the People s rejoinder. We therefore treat as abandoned his assertion that the evidence did not support the three separate oral copulation convictions. 10

location. (Id. at p. 107; accord, People v. Stewart, supra, 119 Cal.App.4th at pp. 174-175.) Pursuant to the rule in Jones II, defendant may only be sentenced to one life term under section 667.61(g) for the three forcible oral copulation offenses committed against K.K. in a single location on October 1, 2002. We thus, remand for resentencing, recognizing that since the court imposed the three life terms concurrently, there will be no net effect on defendant s aggregate sentence. (See People v. Stewart, supra, 119 Cal.App.4th at p. 175.) V. The Trial Court Did Not Adjudicate the Issue of Identification Defendant contends the court erroneously identified him as K.K. s attacker during the examinations of K.K and arresting Officer Whitney. After K.K. testified that, while looking up at her attacker, she was able to see his face for five or six minutes the following colloquy occurred: [THE PROSECUTOR]: That person that you saw cross in front of you and you felt grab you from behind, take you into the carport and did this to you, do you see that person in the courtroom today? [K.K]: Yes. [THE PROSECUTOR]: Would you please identify that person by pointing to that person and describe for the record where that person is in the courtroom? [K.K.]: He s right there in the middle of those two people. THE COURT: And the record will reflect the witness has identified the defendant. After Officer Whitney identified a photograph as being that of the suspect he chased and apprehended, the following colloquy occurred: [THE PROSECUTOR]: Okay. Now, the person that you... identified in People s Exhibit No. 19, do you see that person in the courtroom today? [OFFICER WHITNEY]: Yes. [THE PROSECUTOR]: Would you please identify that person by pointing to that person and describing for the record where that person s located in the courtroom? 11

[OFFICER WHITNEY]: The person is next to his attorney. He s wearing a brown suit, dark pants and a tie. [THE PROSECUTOR]: Your Honor, would the record please reflect that the witness has identified the defendant? THE COURT: Any objections, [defense counsel]? [DEFENSE COUNSEL]: No, not at all, your Honor. THE COURT: All right. Then the record will reflect that the witness has identified the defendant. Defendant argues that use of the word identify by both the prosecutor and the court was improper, and instead, the victim should have been asked to point out her attacker. He asserts that, particularly in a case such as this, where identity was the sole issue at trial, by stating that the witness had identified the defendant, the court prejudicially adjudicate[ed] the identification issue. As authority for his contention, defendant cites section 1093, subdivision (f) which provides, in part: The judge may... make such comment on the evidence and the testimony and credibility of any witness as in his or her opinion is necessary for the proper determination of the case and he or she may declare the law. Defendant argues that There is no way the court s adjudications can be justified by claiming they were necessary for the proper determination of the case. As the People point out, defendant has waived his apparent claim of misconduct by the prosecutor and the court by failing to object to the court s use below of the term identify. (See People v. Hill (1998) 17 Cal.4th 800, 820 [prosecutorial misconduct claim must be raised below]; People v. Saunders, supra, 5 Cal.4th at pp. 589-590.) In any case, the record belies defendant s claim that the court adjudicate[ed] the identification issue. The jury was properly instructed pursuant to CALJIC No. 2.91 that the People had the burden of proving beyond a reasonable doubt that the defendant was the person who committed the charged offenses and allegations, and that if after considering the circumstances of the identification and any other evidence, the jury had a reasonable doubt as to whether defendant committed the charged offenses and 12

allegations, it must find him not guilty. It was also properly instructed pursuant to CALJIC No. 2.92 as to the factors it should consider in determining the weight to be given eyewitness identification testimony, and pursuant to CALJIC No. 1.02 that statements made by counsel are not evidence. Finally, the jury was properly instructed pursuant to CALJIC No. 17.32: I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. [ ] If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion. The jury is presumed to have followed the court s instructions (People v. Chavez (1958) 50 Cal.2d 778, 790), and nothing in the record before us indicates it did not do so. We therefore reject defendant s claim of error. VI. The Abstract of Judgment Should Be Corrected Finally, defendant contends, and the People concede that the abstract of judgment erroneously reflects that he was convicted in counts 5, 6, and 7 of section 288(a)(c)(2) CRIMES AGAINST CHILDREN/LL. 8 Defendant was charged with three counts of oral copulation by force, violence, duress, menace and fear of immediate and unlawful bodily injury against K.K. pursuant to section 288a(c)(2), and the verdict forms reflect the jury found defendant guilty of three counts of oral copulation by force or violence against K.K. Defendant was neither charged with nor found guilty of lewd and lascivious acts against a child pursuant to section 288, subdivision (a). On remand for resentencing, the abstract of judgment should be corrected to reflect defendant s conviction of three counts of section 288a(c)(2). 8 The People note that at sentencing, the reporter s transcript erroneously refers to these three offenses as a violation of section 288(a)(c)(2). 13

DISPOSITION The matter is remanded for resentencing consistent with this decision and correction of the abstract of judgment. The judgment is otherwise affirmed. SIMONS, J. We concur. JONES, P.J. STEVENS, J. 14