People v. Farmer

Opinion

KINGSLEY, Acting P. J.

Defendant was charged with (count I) kidnaping, in violation of section 207 of the Penal Code. Counts II and III charged assault with a deadly weapon; count IV charged burglary. After a trial by jury, he was found not guilty on count IV, but guilty on counts I, II and III. He was sentenced to the upper term of seven years on count I, enhanced by three years for the great bodily injury allegation. On the assault counts he was sentenced to the upper term of four years, to run concurrent with the sentence on count I. The total sentence was 10 years; 131 days custody and good time/work time credit was allowed.

The case for the People showed that defendant and the victim had lived together for some time, but had broken up and the victim was living with her young son and her sister. Defendant secured admission to the victim’s home, kidnaped her at the point of a knife, took her to his own home and there assaulted her with a hot knife inflicting a severe burn on her arm. He also tied her up with a rope and towel, and hit her across the back and legs with a belt.

On this appeal, defendant does not attack the verdicts of guilty; he makes one attack on the sentence and attacks the great bodily injury enhancement and the use of that enhancement on count I. We reject all three contentions.

[951]

I

Alarmed at the victim’s disappearance, her sister called the police, who located her at defendant’s apartment. The victim gave to the police her complaints and testified for the People at the preliminary examination. When called to testify at trial, she refused to testify, relying on the Fifth Amendment. The trial court appointed counsel to advise her as to that refusal and he reported that she had reasonable grounds for her refusal. The trial court ruled that, because of her refusal to testify, she was “unavailable” under sections 240 and 1291 of the Evidence Code.

As we understand the defendant’s contention here, it is that the victim should have been faced with specific questions and compelled to claim her privilege separately as to specific questions. Assuming the validity of that theory, it here appears that the victim was examined both by the prosecutor and by defense counsel and asked a long series of questions, as to each of which she claimed her privilege. The record is clear that she was, and would refuse to testify as to