P. v. Green

Filed 12/18/06 P. v. Green CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
GARY GREEN,
Defendant and Appellant.
B185652
(Los Angeles County
Super. Ct. No. BA279164)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Barbara R. Johnson, Judge. Affirmed.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and
J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Gary Green appeals, alleging the trial court erred when it failed to give
the jury the unanimity instruction in CALJIC No. 17.01, denied his motion for new trial
based on the same alleged instructional error, relied on a factor to impose a high term
sentence that is not supported by the evidence, and imposed an aggravated sentence in
violation of Blakely v. Washington (2004) 542 U.S. 296. We affirm.
PROCEDURAL BACKGROUND
Defendant was charged with two counts of forcible oral copulation, in addition to
forcible rape, assault with a deadly weapon, and assault with intent to commit rape. (Pen.
Code, §§ 288a, subd. (c)(2); 261, subd. (a)(2); 245, subd. (a)(1); 220.)1 It was alleged
that defendant inflicted great bodily injury on the victim and used a deadly weapon
during the commission of the crimes. (§§ 12022.8; 12022.3, subd. (a); 12022.7, subd.
(a); 12022, subd. (b)(1).) It was also alleged that defendant had committed the sex crimes
under circumstances which met the requirements of section 667.61, subdivisions (a), (b),
and (c). Defendant was convicted of one count of forcible oral copulation, assault with a
deadly weapon, and assault with intent to commit rape. He was found to have inflicted
great bodily injury on the victim and to have used a deadly weapon in the commission of
each crime. Defendant was acquitted of forcible rape and the second count of forcible
oral copulation.
Defendant filed a motion for new trial. He claimed the trial court erred when it
failed to give the jury the unanimity instruction in CALJIC No. 17.01. The motion was
denied. The court sentenced defendant to state prison for a term of 25 years to life for the
forcible oral copulation pursuant to section 667.61, subdivision (a). Relying on the fact
that defendant was on probation at the time the offense was committed, the court imposed
the high term of four years for the assault with a deadly weapon, added an additional
three-year term for the infliction of great bodily injury, and ordered the sentence stayed
1 All statutory references are to the Penal Code.

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pursuant to section 654. Sentences for the other assault and remaining allegations were
also imposed and stayed.
STATEMENT OF FACTS
The Prosecution Case2
The victim B.F. was a prostitute. She knew defendant and had engaged in an act
of prostitution with him in the past. On February 10, 2005, she saw defendant on the
street. They had a conversation and she agreed to go to his house. They arrived at the
house at about 4:00 a.m., and she told him she could not stay long.
Once inside, defendant asked B.F. if she wanted to use drugs. She declined.
Defendant went into the kitchen. When he returned, he asked to use her cocaine pipe. As
she opened her purse to retrieve the pipe, defendant produced a large butcher knife. He
slashed her on the leg and chest. He ripped B.F.’s t-shirt off and said, “You gonna suck
my dick, Bitch. Or I’m going to kill you.”
They struggled for control of the knife. As defendant tried to stab B.F. in the
neck, she grabbed the knife by the blade. Despite being cut, she was able to take the
knife from him. Defendant choked her and ordered her to remove her pants. She
complied. Defendant got on top of her and placed his penis in her vagina.
Defendant was unable to climax. He grabbed a crowbar from under a nearby table
and struck B.F. in the head with it. Defendant had difficulty ejaculating during
intercourse and twice he removed his penis from B.F.’s vagina and demanded that she
suck on it. After ejaculating, defendant told B.F. he would not let her leave because he
wanted to climax again. B.F. said the sex continued, but she did not testify to any further
specific acts.
At about 6:00 a.m., defendant told B.F. she could get dressed. Defendant’s mother
let B.F. out of the house. B.F. complained that defendant had cut her, but defendant’s
2 As defendant is not contesting the sufficiency of the evidence of guilt, we present a
summary of the pertinent testimony.

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mother told B.F. to get out of her yard. B.F. asked her to call the paramedics, but she
refused.
B.F. eventually got help at a fire station. She told fire personnel that she had been
raped and cut by her attacker. Later at the hospital, B.F. had surgery on her hand. At the
time of trial, she did not have full movement of one finger. B.F. also suffered an injury to
her chest that required stitches, a stab wound to the breast, as well as other knife wounds
to her neck, shoulders, hands, and arms.
On February 10, at about 8:30 a.m., Los Angeles Police Department Officer
Patrick Welsh spoke to B.F. in the hospital. She appeared tired and scared. She told
Officer Welsh that she met her attacker on the street at about 4:00 a.m. B.F. described
the rapist and explained how and where the attack took place.
On February 16, B.F. was released from the hospital. Detective Thayer Lake met
B.F. at the hospital and she directed him to the house where she had been raped. On
February 18, they returned to the house. While at the location, B.F. saw defendant come
out of one of the houses on the property and dash back inside after Detective Lake called
to him. B.F. told the detective that defendant was the man who raped her. As B.F.
waited for officers to arrest defendant, defendant’s brother delivered a message to her.
He said defendant’s mother, Dorothy Johnson, was willing to pay B.F. to keep her from
testifying.
After defendant’s arrest, Detective Jayne Stabler entered the house and examined
the room where B.F. said she was raped. Detective Stabler observed what appeared to be
blood in different areas of the bedroom. There were stains on the carpet and spatter on
the walls. The detective defined spatter as blood that is cast off after an impact. She
looked for evidence of blood on the mattress, and noticed that the mattress appeared to be
new.
Nand Hart-Nibbrig, a criminalist with the Los Angeles Police Department, also
examined the crime scene. He tested various stains in the bedroom and determined that
they were bloodstains.

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Detective Lake was present when defendant was arrested. Defendant initially
refused to come out of the house he had run into, and police officers had to enter the
house to extract him. Defendant was taken to the Newton Station, where Detectives Lake
and Villegas tape-recorded an interview of defendant. The tape was played to the jury.
In the interview, defendant said he went to the store to buy some cigarettes and
was on his way home when someone whistled. A woman approached him. She said she
was “working” and asked if he wanted “to come and kick it like before?” He did not
remember being with the woman before. She knew his first name and said she was
acquainted with his brothers and other family members from the neighborhood. They
went to his house and had sexual intercourse in the living room. Defendant said that
when the sexual encounter began, he was wearing a condom, but the woman took it off
and performed oral sex on him. They again engaged in intercourse. After he ejaculated,
he went into the bathroom. When he returned, the woman was gone.
About 15 or 20 minutes later, the woman returned with a man. She appeared to be
high from smoking rock cocaine. She said she came to retrieve some items she had left
in the house. He let her in, but told the man to wait outside. Defendant said that he was
trying to get her to leave when she asked, “Where’s my 20?” He told her he had already
paid her. At this point, the man came through the door and asked defendant if he was
going to give the woman her money.
The man pulled out a knife and demanded money. The three started wrestling and
struggling over the knife. Defendant was cut on the leg and the woman received a wound
on one of her arms. Defendant was able to take control of the knife, but the blade broke.
He then grabbed a crowbar and chased the man out of the house. The woman remained.
She said she was sorry and left. During the fracas, defendant was hit in the face and was
bleeding from the nose and lip.
Detective Lake testified that on the date of defendant’s arrest, eight days after the
incident, defendant did not have any sign of an injury to his face. The detective opined
that the victim, a seasoned prostitute, would have insisted on the use of a condom during
sex acts with a man, including oral sex.

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The Defense Case
Amfram Swazi was in custody awaiting trial on a murder charge. He testified that
B.F. used to be his girlfriend. She told him about a time when she was forced into a
home and had sex against her will. She said more than one man was present in the home.
The men cut her near her breasts and lower abdomen to get blood in order to burn it as
part of a sacrificial rite. Swazi testified he had never seen defendant before and denied
being at defendant’s house on the night B.F. was raped.
Detective Lake testified that on February 24, when B.F. returned to the hospital to
get her bandages changed, she told the doctor that she did not know whether she wanted
to live any longer because of the nightmares she was having. The doctor thought she was
suicidal and arranged to have her held for 72 hours pursuant to Welfare and Institutions
Code section 5150.
Arthur Corona, an attorney employed by defendant’s trial counsel, testified that
Dorothy Johnson called him to say that B.F. was on Johnson’s porch asking for money.
Johnson asked Corona what she should do. When Corona asked Johnson if she wanted
him to speak to B.F., Johnson said yes, and gave her phone to B.F.
The person to whom Corona was speaking identified herself as B.F. She told
Corona that “Gary didn’t do cutting. Gary didn’t cut.” She said she was homeless and
needed money. When B.F. said she wanted to do the right thing, Corona suggested that
she come to his office and prepare a declaration. When B.F. told him she would only
come if she was paid, he told her that he would not give her any money. Corona admitted
he did not tell the detectives assigned to the case about his conversation with B.F.
DISCUSSION
Alleged Instructional Error
Defendant claims the trial court erred by not giving, sua sponte, the unanimity
instruction contained in CALJIC No. 17.01.3 He asserts error resulted in that it was
3 The instruction reads:

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possible the jury convicted him of violating section 288a, without agreeing on which act
he committed. While defendant correctly states when the instruction is applicable, he is
mistaken when he concludes the instruction was necessary in this case.
“When an accusatory pleading charges the defendant with a single criminal act,
and the evidence presented at trial tends to show more than one such unlawful act, either
the prosecution must elect the specific act relied upon to prove the charge to the jury, or
the court must instruct the jury that it must unanimously agree that the defendant
committed the same specific criminal act.” (People v. Melhado (1998) 60 Cal.App.4th
1529, 1534.)
The case cited by defendant, People v. Smith (2005) 132 Cal.App.4th 1537,
provides an example of when the unanimity instruction is required. Smith was charged
with 10 counts of child molestation. However, the prosecution elicited testimony from
the victim that she was molested on over 20 occasions during an approximate two-year
period. (Id. at pp. 1541-1542.) The jury found Smith guilty of only one count of
molestation. The court concluded, “it is certainly reasonably possible that this jury
concluded that as long as each juror believed beyond a reasonable doubt that defendant
had molested [victim] at least once, it did not matter that they differed on what act of
molestation actually occurred.” (Id. at p. 1546.) As a result, the trial court’s failure to
read CALJIC No. 17.01 constituted prejudicial error. The scenario in our case is
different.
Defendant acknowledges that although B.F. testified she orally copulated him
three times, she “fleshed out only two incidents with sufficient specificity to suggest [he]
“The defendant is accused of having committed the crime of ____ [in Count
____]. The prosecution has introduced evidence for the purpose of showing that there is
more than one [act] [or] [omission] upon which a conviction [on Count ____] may be
based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that
[he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to
return a verdict of guilty [to Count ____], all jurors must agree that [he] [she] committed
the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the
particular [act] [or] [omission] agreed upon be stated in your verdict.”

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used coercion.” Defendant was charged with two counts of forcible oral copulation.
Unlike the Smith case, defendant’s jury was not presented with a situation where the
evidence showed more than one act which could constitute one charged offense.
Notwithstanding the fact that this case involved two charges coupled with two
discrete incidents, defendant argues the instruction was necessary because he presented
two separate defenses. He asserts his defense to one act of oral copulation was consent,
while his claim as to the second act was that it did not occur. He argues “some jurors
may have believed Green’s statement only one act occurred and disbelieved [B.F.]; others
may have been convinced two acts occurred, but may have been convinced one was
voluntary.” Defendant is incorrect when he claims that he presented two distinctly
different defenses to the jury.
Defendant did not testify at trial. As noted, the prosecution played a tape
recording of defendant’s interview with detectives. Defendant said he had consensual
intercourse with B.F. He claimed that he paid B.F. $20 prior to engaging in the sex act.
He was wearing a condom when he placed his penis in B.F.’s vagina. B.F. took the
condom off and began to orally copulate defendant. The interview proceeded as follows:
“Detective Lake: Okay.
“[Defendant]: And then we ended up going right back over
the same thing.
“Detective Villegas: Okay.
“[Defendant]: You know, doing it again.”
Defendant asserts this exchange clearly signaled to the jury that he was claiming
only one act of oral copulation took place. He is mistaken. The words are too ambiguous
to suggest any clear meaning. Moreover, throughout the interview, the questioning was
directed at defendant’s claim that the sex acts were consensual. The issue of how many
different sex acts were performed was never clearly discussed, and at no time did
defendant claim that any particular sex act did not occur.
Defendant’s trial attorney argued to the jury that B.F. was a prostitute and the sex
acts were consensual. Counsel emphasized the fact that B.F. and defendant had engaged

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in a prior act of prostitution. The gist of the defense was that B.F. was a liar, not that the
alleged sex acts did not take place. The jury was asked by the defense to answer one
question: Did B.F. and defendant engage in consensual sex? Defendant did not rely on
two separate defenses. As we noted, since the jury heard evidence of two acts of oral
copulation and was presented with two counts, the unanimity instruction was
unnecessary. The trial court properly denied defendant’s motion for new trial, as there
was no instructional error.
Alleged Sentencing Error
Defendant argues the trial court erred when it imposed the high term for the
assault charge. He asserts the record does not support the court’s finding that he was on
probation at the time the offense was committed. Defendant acknowledges the probation
report, upon which the court relied, listed the fact that he was on probation as an
aggravating factor. He claims further investigation would have revealed that he was
placed on probation for a misdemeanor, and that the term of probation expired prior to
the commission of the new offense.
The Attorney General argues that defendant forfeited any right to appeal from the
alleged error by failing to object below. We agree. When the court asked defense
counsel if she wanted to be heard prior to the imposition of sentence, she only asked that
the court not impose the high term. The court specifically referred to the aggravating
factor that defendant was on probation at the time of the offense when it sentenced
defendant to the high term. Counsel could have objected and requested that the court
conduct further inquiry into defendant’s probationary status. “However, defendant did
not exercise his right to present any materials or call any witnesses to contradict, explain
or otherwise rebut materials in the probation report, and he is now foreclosed from
raising such issues.” (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 725, internal
citations omitted, disapproved on another point in People v. Green (1980) 27 Cal.3d 1,
34.)

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Even assuming error, there is no prejudice. As the Attorney General points out,
there were four other circumstances in aggravation the court could have cited to support
the imposition of the high term. The court found no circumstances in mitigation. “Only
a single aggravating factor is required to impose the upper term [citation].” (People v.
Osband (1996) 13 Cal.4th 622, 728.) A new sentencing hearing is not required.
Finally, defendant argues the court erred when it imposed the high term, citing
Blakely v. Washington, supra, 542 U.S. 296. He concedes that we are bound by the
decision of the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238,4
which held that our sentencing scheme does not violate the rule in Blakely.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P.J. MANELLA, J.
4 We acknowledge the decision is pending review in the United States Supreme Court.
(Cunningham v. California, No. 05-6551, cert. granted Feb. 21, 2006, 126 S.Ct. 1329.)

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