People v. Romero CA2/2

Filed 4/21/16 P. v. Romero CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B263144

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA426025) v.

NICHOLAS ROMERO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. George G. Lomeli, Judge. Affirmed with modifications.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent. ******

Nicholas Romero (defendant) appeals his convictions for three counts of forcible rape, contending that the trial court erred in admitting two other prior sexual assaults 1 pursuant to Evidence Code section 1108 because that section is unconstitutional. Defendant’s contention has no merit, so we affirm. However, we modify defendant’s sentence to correct a sentencing error. FACTS AND PROCEDURAL BACKGROUND I. Charged Conduct A. Kristina In September 2013, defendant’s then-girlfriend, Kristina N., had a miscarriage. Three days later, while she was still experiencing vaginal bleeding and pain, defendant pressured her to have sex. When she refused, defendant threatened her, warning, “You fucking bitch, you better not say anything. We’re going to have sex,” and “if you try to scream or do anything, I’m going to fucking kill you.” Throughout that night, defendant continued to threaten her, pinned her against the bed, and strangled her neck with his bare hands. Eventually defendant forcibly inserted his penis into Kristina’s vagina as she cried and begged him to stop. In mid-October 2013, Kristina came home to find defendant, drunk, sitting in her apartment. She told him to leave, but left him to let himself out as she took a shower. Defendant followed her into the shower where he held her by her neck and lifted her off the ground before he dropped her and she lost consciousness. When she awoke, defendant threatened to kill her and forced her to have sex three times before he left the next morning. B. Adriana Also in mid-October 2013, defendant contacted Adriana S., a long-time friend and occasional sexual partner, and asked if he could come over her place. She told him no, but he showed up anyway. Because he was drunk, Adriana allowed him to sleep on her couch and went into her own bedroom to sleep. Defendant later entered her bedroom,