People v. Caldwell

Opinion

HAMLIN, J.

The Case

Defendant was charged by information with sodomy in concert and by force (Pen. Code, § 286, subd. (d)),

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oral copulation in concert and by force

[949]

(§ 288a, subd. (d)), penetration of the vagina with a foreign object by force (§ 289), and mayhem (§ 203). Defendant pleaded not guilty and not guilty by reason of insanity.

The jury found defendant guilty as charged except that he did not act in concert in committing forcible oral copulation. The court, sitting without a jury, found defendant sane at the time of the offenses. The court then sentenced defendant to 23 years in state prison. Defendant filed a timely notice of appeal from the judgment.

On appeal defendant contends the trial court committed prejudicial instructional and sentencing errors. Additionally, he argues insufficient evidence was presented to sustain the convictions of sodomy in concert and mayhem. We reject all of defendant’s contentions for the reasons we shall state.

The Facts

In April 1981, Ronda M., the victim in this case, was 25 years old and living in an apartment with her mother. Despite her chronological age, Ronda had completed only the 10th grade and had the social development of a 14-year-old. She is considered developmentally disabled.

On April 10 Rick, a young man Ronda had been dating, came to the apartment and asked Ronda to go driving around with him. Although Rick was alone when he invited Ronda, defendant was waiting in the truck in which Rick arrived. The three of them drove to the apartment of Melanie, a girl friend. While there, all three drank beer, and defendant sniffed paint. From there they went to a convenience store to buy beer. Sometime after they left Melanie’s apartment and for an indefinite period during the evening, defendant’s cousin Jimmy joined them. At the convenience store Rick went in to buy the beer, and defendant remained with Ronda in the truck. While Rick was gone, defendant leaned over and bit Ronda on the ear. Thereafter he forced Ronda to orally copulate him. Ronda submitted out of fear that defendant would harm her further. When Rick returned, Ronda begged him to take her home, but Rick refused.