People v. Lema

Opinion

LOW, P. J.

Defendant Joe Richard Lema was convicted by jury of assault with intent to commit rape (Pen. Code, § 220) and false imprisonment by violence. (Pen. Code, § 236.) The jury also found defendant used a firearm in the commission of these offenses. (Pen. Code, § 12022.5.) We affirm.

Mary B. met defendant in November 1982 and they began dating, but Mary B. terminated the relationship several times because of defendant’s propensity to become physically abusive when angered. After one of their reconciliations they resumed sexual relations. Mary B. testified that they “did not agree that I was going to be his constant girlfriend” and Mary B. renewed a relationship with Ray C., a former boyfriend. On August 1, 1983, Ray C. spent the night at Mary B.’s house. Unbeknownst to Mary B., defendant had watched her residence and observed them in bed together.

Defendant unexpectedly arrived at Mary B.’s residence at 11:30 the next morning and stated he wanted to speak with her alone. She reluctantly left with him in his car because she wanted to avoid a confrontation in front of her eight-year-old son. After driving around San Jose, defendant drove out of town while Mary B. repeatedly asked defendant to take her home. Defendant stated that “he wanted to go up to the mountains and screw and stuff.”

Defendant stopped the car and ordered Mary B. out. When Mary B. asked why, defendant replied, “I told you we were going to screw.” Mary B. protested, and defendant gave her the choice of submitting to intercourse in the rocky area by the car or at the bottom of the hill. She agreed to go with him down the hill because she was frightened. Defendant retrieved a sleeping bag from the trunk and Mary B. observed him wrap a gun in it. When they got to the bottom of the hill, defendant instructed Mary B. to undress and orally copulate him. She complied out of fear. Defendant then had sexual intercourse with her. Mary B. testified that he pointed the gun at her and told her he was going to kill her.

The defendant produced a brown paper bag which contained towels, gloves and duct tape. He placed tape across Mary B.’s mouth, put the gloves on her hands, wrapped her feet with a towel and bound her hands and feet with the tape. He pulled a knife from the bag, placed it at her throat and

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