People v. Mitchell CA3

Filed 1/8/16 P. v. Mitchell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C076901

Plaintiff and Respondent, (Super. Ct. No. 13F05850)

v.

ERIC LEWIS MITCHELL,

Defendant and Appellant.

Sentenced to an aggregate state prison term of 14 years after a jury convicted him of rape and forcible oral copulation, defendant Eric Lewis Mitchell contends the trial court abused its discretion by imposing the eight-year upper term for rape. We affirm the judgment.

FACTS AND PROCEEDINGS

A first amended information accused defendant of forcible rape (count 1; Pen. Code, § 261, subd. (a)(2); unless otherwise set forth statutory references that follow are to the Penal Code) and forcible oral copulation (count 2; § 288a, subd. (c)(2)). The information alleged as to both counts that defendant inflicted great bodily injury upon the victim. (§ 12022.8.)

1

Trisha Doe, the victim, testified that on the date of the crime, she got off work, went home to her apartment in Del Paso Heights, and had some brandy. Later, she left her apartment to buy more brandy and saw defendant, who lived in a house across the street. They were not closely acquainted, but they would say hello when they saw each other and she would occasionally give him a cigarette. Trisha asked defendant, who was also going to the store, to accompany her. They walked to the store, made their purchases, and started to return home. Defendant suggested they return by way of the American River bike trail. As soon as they got on the trail, defendant grabbed Trisha from behind and tried to choke her. She attempted to break away, but failed. Overcoming Trisha’s resistance, defendant removed her shorts, then repeatedly tried to insert his penis into her vagina; every time she struggled or screamed for help, he choked her again. At first, he put her on her hands and knees, then on her back; his penis went inside her “a little bit.” She could feel that it was erect. Eventually, he put it inside her mouth. The assault lasted 15 to 20 minutes, but Trisha believed she was unconscious part of the time and could not remember all the details. She saw people going by on the trail, but no one helped her. At one point, she saw a man on a bicycle watching and screamed for help, but defendant choked her to silence her. Unable to breathe, she feared for her life. Fernando Ohler, riding home from work on his bicycle, saw defendant in the act of assaulting Trisha and heard her yelling for help in “terror.” Ohler called out to defendant to stop and said he was calling 911, but defendant did not stop. Ohler then called 911 and reported the rape in progress. A dispatch call went out at 7:28 p.m. Officers arriving on the scene seven or eight minutes later found defendant still raping and choking Trisha, who was lying on her back