People v. Turk CA3

Filed 10/16/14 P. v. Turk CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C075976

Plaintiff and Respondent, (Super. Ct. No. CRF130409)

v.

CHRISTOPHER LYNN TURK,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). A first amended information charged defendant Christopher Lynn Turk with forcible rape (count 1; Pen. Code, § 261, subd. (a)(2)),1 forcible oral copulation (count 2; § 288a, subd. (c)(2)), second degree robbery (count 3; §§ 211/212.5, subd. (c)), forcible false imprisonment (count 4; §§ 236/237, subd. (a)), sexual battery (count 5; § 243.4,

1 Undesignated section references are to the Penal Code.

1

subd. (a)), second degree burglary (count 6; § 459), and misdemeanor injuring a wireless communication device with intent to prevent the summoning of assistance (count 7; § 591.5). As to counts 1 through 5, the information alleged that defendant used a dangerous or deadly weapon. (§ 12022, subd. (b)(1).) As to counts 1 and 2, the information also alleged that defendant was a person described in section 667.61, subdivision (a) (the “one strike” provision) in that he committed the current offenses during the commission of a burglary (§ 667.61, subd. (e)(2)) and personally used a dangerous or deadly weapon (§ 667.61, subd. (e)(3)). Also as to counts 1 and 2, the information further alleged that defendant was a person described in section 667.61, subdivision (b) in that he personally used a dangerous or deadly weapon in the commission of the present offense. On the first day of trial, defendant entered a plea of no contest to counts 1 and 3 and admitted the dangerous weapon allegation as to count 1 and the one strike allegation, with the understanding he would receive a state prison sentence of five years on count 3 and a consecutive 15 years to life on count 1. The trial court dismissed the remaining counts and allegations. According to the preliminary hearing transcript, in which the trial court found the factual basis for defendant’s plea, on the morning of January 26, 2013, the victim went to the Davis farmers market, then crossed the street to the Davis Community Church, where she believed there was an adoption center for kittens. In the outer courtyard of the church, she saw a black male in his mid-20’s with pockmarks or freckles on his face, wearing a backpack and bright red, plastic-looking shoes. When she told him she was looking for the cat adoption center, he said he knew where it was and asked her to follow him inside the church. After they walked up to the top of a landing, he put a hand over her mouth and told her to be quiet. She reached into her pocket for her cell phone and tried to dial 911, but he took the phone away. After telling her that he just wanted to kiss her, he pushed her down to the floor. He brandished a pair of scissors and held them to