People v. Park CA2/6

Filed 12/2/14 P. v. Park CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B249730 (Super. Ct. No. SA078815) Plaintiff and Respondent, (Los Angeles County)

v.

SUNG HO PARK,

Defendant and Appellant.

Sung Ho Park appeals from the judgment entered after a jury convicted him of offenses involving three victims. As to Rebecca W., he was convicted of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(A))1 and sexual battery while the victim was restrained. (§ 243.4, subd. (d).) As to Y.Y., he was convicted of assault with intent to commit rape, sodomy, or oral copulation during the commission of first degree burglary. (§ 220, subd. (b).) As to Rebecca W. and Y.Y., he was convicted of first degree burglary with another person present. (§§ 459, 460, subd. (a), 667.5, subd. (c)(21).) As to the third victim, identified only as "Jane Doe No. 1," appellant was convicted of forcible rape (§ 261, subd. (a)(2)) and forcible oral copulation. (§ 288a, subd. (c)(2)(A).) The incident involving Jane Doe No. 1 occurred three months before

1 All statutory references are to the Penal Code unless otherwise stated.

the incident involving Rebecca W. and Y.Y. The jury found true several sentencing enhancements. Appellant was sentenced to prison for 120 years to life. Appellant contends that the trial court erroneously admitted statements he made to the police following his arrest for the offenses committed against Rebecca W. and Y.Y. He maintains that the statements were obtained in violation of Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694) because the police questioned him after he had invoked his right to counsel. Appellant's other contention concerns his conviction of assaulting Y.Y. during the commission of first degree burglary with the intent to commit rape, sodomy, or oral copulation. (§ 220, subd. (b).) Appellant argues that the trial court erroneously refused to instruct the jury on the lesser included offense of simple assault. We affirm. Facts With one exception, the facts relating to the offenses committed against Jane Doe No. 1 are not relevant to the issues on appeal. We limit our summary of the facts to this one exception and the offenses committed against Rebecca W. and Y.Y. Rebecca W. was asleep in bed inside her apartment when appellant, a stranger, entered her bedroom and awakened her. He got on top of her and held a knife to her neck. When she screamed, appellant said in Korean, "Just be quiet or I'm going to kill you and your roommate." Rebecca W.'s roommate was Y.J. They were from Korea and were students at U.C.L.A. Rebecca W. stopped screaming. Appellant tied her wrists and ankles and put tape over her mouth. He left Rebecca W.'s bedroom and entered Y.Y.'s bedroom. Rebecca W. removed the tape from her mouth and telephoned 911. Y.Y. was asleep in bed. Appellant awakened her, and she started screaming. He got on top of her while she was lying on her back, held a knife to her neck, and said in Korean, "Stay still, otherwise I'm going kill you." Appellant tied Y.Y.'s wrists and ankles and put tape over her mouth. He turned her over onto her stomach and positioned her so that she was on her knees with her chest and stomach "flat on the bed." Her buttocks were elevated and exposed. Three months earlier, appellant had