People v. Harms CA3

Filed 12/7/23 P. v. Harms CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C096383

v. (Super. Ct. No. 19FE020222)

GREGORY ALLEN HARMS,

Defendant and Appellant.

A jury convicted defendant Gregory Allen Harms of sexual penetration with force or violence, unlawful assault with intent to commit rape, and unlawful sexual penetration after administration of an anesthetic, based on his sexual assault of two women, C. and Y., on different occasions while he was assigned to care for them as a nurse. The trial court sentenced him to state prison for a determinate term of 14 years and an indeterminate term of 15 years to life. Defendant now contends (1) the trial court should have instructed the jury on sexual battery as a lesser included offense, and (2) the jury and not the trial court should have determined whether the crimes alleged in counts 1 and 2 occurred on separate occasions for the purposes of sentencing. Finding no merit in the contentions, we will affirm the judgment.

1

BACKGROUND A As the result of a car accident, C. was hospitalized with serious injuries. She had a breathing tube and a traumatic brain injury. In January 2019, defendant was assigned to care for her as her nurse. On one occasion he told her she was “not being a good girl,” closed the curtain around her bed, flipped her on her stomach, and inserted his finger into her vagina at least 10 times. He repeatedly called her a “bad girl” and rubbed his crotch area against her buttocks and back. He flipped C. over so she was lying on her back and continued to insert his finger into her vagina. He tried to insert his penis into her vagina but he was unsuccessful. During the assault defendant bound C.’s wrist to the bed with an elastic therapy band. After five minutes, he stopped and rearranged C. in her bed. Soon after, another health care provider entered C.’s room and C. informed the provider about the assault. Later that day, a physician performed a sexual assault examination on C. During the exam, C. complained of anal pain, and the examining physician noticed an actively bleeding laceration on C.’s anus. C.’s genitals appeared normal, but the physician testified this is not unusual even when a sexual assault has occurred. A swab of C.’s pubic area found DNA that was likely defendant’s. B In March 2011, Y. had surgery at a local surgery center and defendant was one of the nurses assigned to care for her. She awoke after the surgery when she felt a finger in her vagina. She fell back asleep but awoke again feeling a mouth on her lips. She tried to push the person away, whom she thought was defendant, and fell back asleep. When she woke up fully, her hospital gown was pulled up to her midsection and her underwear was rolled up and misaligned. Defendant escorted her to the bathroom so she could get dressed. He stood outside and offered help, but she refused.