P. v. Balinton CA1/4

Filed 3/19/13 P. v. Balinton CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, A132571 v. DELPHINO BALINTON, (City & County of San Francisco Super. Ct. Nos. 2383839/209447) Defendant and Appellant.

In August 2009, the San Francisco District Attorney charged appellant Delphino Balinton with five sex crimes: (1) kidnapping to commit rape, sodomy, and oral copulation; (2) forcible rape; (3) forcible oral copulation; (4) forcible oral copulation of a minor; and (5) assault with intent to commit sodomy. In connection with counts two and three, the information further alleged that appellant kidnapped the victim. As well, the information alleged that appellant suffered two serious felony strike convictions. A jury convicted appellant of forcible rape, forcible oral copulation, and forcible oral copulation of a minor, and found the kidnapping enhancements true as to counts two and three. Additionally, the jury convicted appellant of simple assault, a lesser included offense to count five. The jury was unable to reach a verdict on count one and hence the court declared a mistrial on that count. Finally, the court found true the allegation that appellant suffered a prior robbery conviction in 1985. The court sentenced appellant to an aggregate term of 55 years to life. Appellant challenges the jury instructions on the kidnapping enhancements. We affirm the judgment.

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I. FACTUAL BACKGROUND A. The Crimes and Investigation In the summer of 2001, 16-year-old C.C. came to San Francisco from Montana, to attend a summer art program offered through the Academy of Art Institute. On the evening of July 21, 2001, C.C. left her dorm after dinner to go for a walk. She was on Sixth Street where it intersects with Jessie Street when she saw someone standing and mumbling, but she kept walking. A person grabbed C.C. from behind and pulled her ―back a ways, back into the alleyway.‖ C.C. was not able to get away. The assailant pulled her inside a large cardboard box with openings cut out and pieces of cloth hanging over the openings. C.C. first said she guessed that he pulled her 40 to 50 feet into the alley. Later she described the distance as the distance between the witness stand and the prosecutor‘s table. The assailant pushed C.C. down and pulled her pants to her ankles; C.C. tried to push him away but could not. The assailant raped C.C.; he was not wearing a condom but she was unsure if he ejaculated. He also forced her to orally copulate him, ejaculated in her mouth and forced her to swallow. Finally, when she was on her knees and pushing against the concrete, he slightly penetrated her anus. C.C. tried to knock him back, without success. The assailant sat up and pulled C.C. onto his lap. At that point she got up and ran back to the dorm. Later that evening, C.C. was taken to a hospital where she was examined by a sexual assault nurse. With respect to hymenal trauma, C.C. had ―mild swelling.‖ She also suffered some ―tiny superficial tears or abrasions‖ of the labia. Swabs were taken from C.C.‘s mouth, vagina, and anus. The swabs, along with C.C.‘s underwear from the night of the attack, were preserved in a locked freezer under police custody. C.C. described the assailant as an African-American male, about 45 years old, five feet nine inches tall, weighing around 220 pounds with a ―big belly.‖ C.C. did not want to testify and signed an ―affidavit of release of prosecution.‖ The case was placed on inactive status pending identification of the suspect.