People v. Brewer
225 Cal. App. 4th 98
Cal. Ct. App.2014Background
- In February 2011 appellant Anthony Brewer broke into John Doe’s home, entered his bedroom, removed his clothes, pushed Doe onto the bed, kissed and touched him, and put his hand under Doe’s shorts; Doe escaped after summoning help and police found appellant leaving the bedroom. Appellant testified he sought a consensual encounter; the jury convicted him of first‑degree residential burglary (count 1), assault with intent to commit forcible sodomy/sexual penetration/oral copulation (§ 220, subd. (b)) (count 2), and false imprisonment by violence/menace (counts 3).
- The prosecution introduced a 1989 prior incident in which appellant broke into a 15‑year‑old girl’s bedroom naked with a knife, tried to make her remove her clothes, and later admitted an intent to rape her. The trial court admitted that evidence under Evidence Code §§ 1101(b) and 1108.
- The information alleged two prior prison‑term enhancements under § 667.5(a) (three‑year enhancements) and two under § 667.5(b) (one‑year enhancements), based on prison terms arising from convictions in 1989 and 2002; the jury found all four enhancement allegations true.
- At sentencing the court imposed the two § 667.5(a) enhancements and stayed the two § 667.5(b) enhancements; the court also treated counts 1 and 3 as subject to Penal Code § 654 and said sentences for those counts should be concurrent with count 2.
- On appeal Brewer challenged (1) sufficiency of the evidence for the § 220 assault conviction (count 2), (2) the treatment of the § 667.5(b) enhancements, (3) imposition of both § 667(a) and § 667.5(a) enhancements, and (4) the § 654 treatment of counts 1 and 3. The Court of Appeal affirms as modified.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Brewer) | Held |
|---|---|---|---|
| Sufficiency of evidence for assault with intent to commit sodomy/penetration/oral copulation (count 2) | Evidence (statements, removal of clothes, climbing on top, kissing/touching, hand under shorts, prior sex‑offense conduct) supports intent to commit the listed sexual acts | Evidence shows only intent to commit a lesser sexual battery, not intent to commit sodomy/penetration/oral copulation | Affirmed: substantial evidence supports intent to commit the charged sexual offenses (jury could draw reasonable inferences) |
| Proper disposition of § 667.5(b) prior‑term enhancements when same prior terms were used for § 667.5(a) enhancements | The § 667.5(b) enhancements are statutorily barred where § 667.5(a) applies; they should not be independently imposed | Initially argued the stays were improper and should be stricken; later accepted stay is appropriate | Court affirms stay (not strike) of § 667.5(b) enhancements under Cal. Rules of Court, rule 4.447 — stay preserves possibility of imposing them if higher enhancements are later invalidated |
| Whether § 667(a) and § 667.5(a) enhancements may both be imposed based on the same prior convictions | Both enhancements valid here because each prior case produced multiple qualifying convictions such that Jones does not bar dual enhancements | Jones bars imposing multiple enhancements from the same prior offense when § 667 is an option | Held: imposition of both § 667(a) and § 667.5(a) was proper on these facts (prior cases involved multiple qualifying convictions) |
| Application of Penal Code § 654 to counts 1 and 3 (burglary and false imprisonment) | Counts 1 and 3 are subject to § 654 and should have sentences stayed rather than made concurrent | Argued sentences should be stayed under § 654 | Modified: judgment altered to explicitly stay execution of sentences on counts 1 and 3 pursuant to § 654; otherwise affirmed |
Key Cases Cited
- People v. Maury, 30 Cal.4th 342 (standard for substantial‑evidence review)
- People v. Greene, 34 Cal.App.3d 622 (distinguishing acts insufficient to show intent to rape)
- People v. Bradley, 15 Cal.App.4th 1144 (physical acts and statements can support intent to rape)
- People v. Craig, 25 Cal.App.4th 1593 (similar to Bradley — jury may infer intent from conduct that is preliminary to intercourse)
- People v. Robbins, 45 Cal.3d 867 (prior similar acts admissible to prove intent)
- People v. Villatoro, 54 Cal.4th 1152 (evidence of other sex offenses probative of disposition and intent)
- People v. Cardenas, 192 Cal.App.3d 51 (defining separate prior prison terms for § 667.5 enhancements)
- People v. Lopez, 119 Cal.App.4th 355 (rule 4.447 allows staying barred enhancements to preserve appellate contingency)
- People v. Gonzalez, 43 Cal.4th 1118 (stay, not strike, of overlapping statutory enhancements is appropriate)
- People v. Jones, 5 Cal.4th 1142 (when multiple enhancements available for same prior, the greatest applies; fact‑specific limits)