People v. Hawk

Opinion

REGAN, J.

Defendant appeals from a judgment entered after he pleaded guilty to rape by force and violence and by threat (Pen. Code, § 261, subds. 2 and 3) and admitted inflicting great bodily injury during the commission of the rape (Pen. Code, § 12022.7).

He was charged by indictment on February 21, 1978, with seven separate crimes (burglary, rape, oral copulation, assault with a force likely to produce great bodily injury, assault with a deadly weapon, assault with intent to commit murder and assault with intent to commit rape). Pursuant to a plea bargain, he entered his plea of guilty to the rape and admitted inflicting great bodily injury after being advised of a possible sentence of three, four or five years for the rape and a sentence of three years for the infliction of great bodily injuiy. The other counts as well as an information charging defendant with the rape of another victim were dismissed on motion of the district attorney pursuant to the

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terms of the bargain. Defendant was sentenced to the upper term of five years for the rape which was enhanced by three years for the infliction of great bodily injury.

We reject the contention that the trial court erred in imposing the upper term for the rape.

1

Defendant’s contention is premised on the claim the court utilized factors not supported by the evidence and used the infliction of great bodily injury both to aggravate and enhance his sentence in violation of rule 441 of the California Rules of Court.

The transcript of the preliminary hearing shows that the 19-year-old victim was alone in her apartment when defendant knocked on her door on the pretext of looking for her neighbor; he gave his name and determined she was living with her boyfriend. He then pushed the door in and entered against her resistance; he asked: “What’s wrong, can’t I come in?” When she told him “No” he grabbed her by the neck and pushed her against the wall; he then hit her in the face with his fist, causing bleeding. He took her to the kitchen and asked where the knives were kept and grabbed one with an eight-inch blade, then took her to the bedroom and ordered her to perform the act of oral copulation which she did only after being yelled at. Defendant subsequently raped and kicked her, then had her take a shower. He took her back to the bedroom and tied her hands behind her back with a pillow case. While she was tied defendant told her that he would kill her if she told anybody; he also asked if she remembered his name and told her she had better not remember; he stabbed her in the back and left.