People v. Forbes CA1/1

Filed 2/27/15 P. v. Forbes CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A138046 v. HOWARD FORBES, (Solano County Super. Ct. No. FCR288796) Defendant and Appellant.

Defendant Howard Forbes was convicted of several sex crimes after he violently assaulted an intoxicated woman. He contends the trial court committed reversible error when it inadvertently failed to give a jury instruction concerning his failure to testify and when it admitted evidence of an uncharged earlier sexual assault. We affirm. I. BACKGROUND1 Defendant was charged in an information, filed January 24, 2012, with kidnapping for the purpose of committing another crime (Pen. Code, § 209, subd. (b)(1)), rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3)), three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), two counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), sodomy by use of force (Pen. Code, § 286, subd. (c)(2)), and aggravated

1 Defendant does not challenge the sufficiency of the evidence to support his convictions. In light of the nature of the claims made on appeal, our discussion of the factual background of the convictions is limited to a general characterization of the evidence presented at trial. The facts relating directly to defendant’s appellate claims are recounted in the discussion of those arguments.

assault (Pen. Code, § 245, subd. (a)(1)). The information also contained various sentencing enhancement allegations. The victim, a 22-year-old woman, became very intoxicated while visiting a bar with friends in September 2011. Her friends lost track of her, but when last seen she had no visible injuries. The victim remembered being unable to find her friends at the bar. When next she could recall, she was disoriented and engaged in sexual intercourse in an unfamiliar place with a stranger, whom she identified at trial as defendant. He initially complied when she asked him to stop, but he became angry when she told him she wanted to go home. In the ensuing hours, defendant prevented the victim from leaving the residence while forcing her to engage in various sexual acts. A video of the victim, taken the morning of the assault, was later located by police on defendant’s phone. Around dawn, defendant drove the victim to El Cerrito, where he left her in a parking lot near a fast food restaurant. Although the restaurant was closed, she was admitted when she knocked on the door. Responding police officers found the victim crying uncontrollably and visibly injured. Both her eyes and the right side of her face were blackened. Examination of the victim at the hospital revealed a bruised and swollen right eye, bruises on her neck, breast, and arm, an abrasion and a bruise on her right thigh, and a laceration under her left eye, as well as vaginal and rectal evidence of sexual assault. Defendant’s DNA was detected in both the anal and vaginal swabs. Defendant was convicted on all counts, and the jury found true the allegation he inflicted great bodily injury. He was sentenced to multiple consecutive indeterminate life terms. II. DISCUSSION Defendant contends the trial court committed reversible error by inadvertently omitting a jury instruction stating that his failure to testify could not be considered and by admitting evidence of an uncharged sexual assault.