P. v. Henderson CA2/5

Filed 7/15/13 P. v. Henderson CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B243173

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA065576) v.

NIEL HENDERSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph Brandolino, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Toni R. Johns Estaville, Deputy Attorney General, for Plaintiff and Respondent. _______________________________

The jury found defendant and appellant Niel Henderson guilty of rape by force in violation of Penal Code section 261, subdivision (a)(2).1 The jury found true the allegation that defendant committed the offense during the commission of a first degree burglary with the intent to commit either rape or theft. (§ 667.61, subd. (b).)2 The trial court sentenced defendant to state prison for 15 years to life. In his timely appeal from the judgment, defendant contends the evidence is insufficient to support the allegation under section 667 that he committed the rape during the commission of a burglary with the intent to commit theft. Finding no merit to the argument, we affirm.

FACTS

Defendant raped 88-year-old Lily Peterson in her home and robbed her of her wedding ring on June 24, 1998. Public records indicated that defendant was in the Los Angeles area on June 12 and on July 11, 1998. Peterson passed away in 2000. In 2010, defendant was connected to the rape by a DNA match. This prosecution followed. Leila Riela lived next door to Peterson for 36 years, visiting her often. At 9:50 a.m. on June 24, Riela received a telephone call from Peterson, asking her to come right over. Peterson sounded ―bad.‖ Riela found Peterson sitting in her rocking chair, ―disheveled and bruised, red, swollen face, and crying.‖ Peterson said she had been raped and robbed by a Black man, who wanted her wedding ring and jewelry. Peterson, a widow, always wore her wedding ring, but Riela noticed it was missing from her finger. Riela insisted they call 9-1-1 immediately. Riela placed the call, beginning by telling the operator ―a Black man raped my neighbor here.‖ Peterson took the phone and described the attacker as a very young man, between 17 and 20 years old, wearing all