34 Cal.App.5th 250
Cal. Ct. App.2019Background
- Defendant Beau Dearborne was convicted by a jury of multiple offenses arising from kidnapping, raping, and forcing a victim (Yolanda) into prostitution, including human trafficking, kidnapping to commit a sex offense, forcible rape in concert, forcible oral copulation in concert, robbery, pimping, and pandering. He admitted a prior strike, a prior serious felony, and prison priors.
- Facts central to the convictions: Dearborne lured a homeless woman (Yolanda), restrained and threatened her (pressing what she believed was a gun), forced her to perform sexual acts and raped her in a car, then compelled her into street prostitution with a companion (Destiny) and a paying customer (the john); Yolanda repeatedly told others she did not consent before, during, and after the acts.
- The jury found Dearborne kidnapped the victim during the sex offenses and convicted on One-Strike (§ 667.61) counts; sentence totaled 205 years to life plus 28 years.
- On appeal Dearborne challenged (1) sufficiency of the evidence for forcible rape (arguing rape was by threat/fear only, not force), and liability for rape in concert (claiming the john lacked guilty mens rea), (2) certain instructional rulings (including omission of mistake-of-fact instruction regarding the john), and (3) several sentencing errors (failure to stay or run certain counts concurrently, custody credits, denial of conduct credits, and remand to consider striking a five-year prior enhancement).
- The Court of Appeal affirmed convictions, rejected insufficiency and instructional challenges, but found sentencing errors requiring remand to (a) permit the trial court to exercise discretion whether to run certain One-Strike counts concurrently or consecutively, (b) stay punishment on the pimping count under § 654, and (c) grant two additional days of custody credit; court remanded for the trial court to consider striking the five-year prior enhancement under the retroactive § 1385 amendment.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Dearborne) | Held |
|---|---|---|---|
| Sufficiency of force for forcible rape counts | Evidence showed physical force (pinning, fake gun) and fear sufficient to overcome victim’s will; thus forcible rape proven | Rapes were accomplished by threats/fear (lesser) rather than physical force required for § 264.1 One-Strike enhancement | Affirmed: pinning and pressing a perceived gun sufficed as force; substantial evidence supported forcible rape and One-Strike offenses |
| Rape-in-concert liability when alleged co-actor (john) lacked mens rea | The john heard the victim’s protests (victim told Destiny and others she didn’t consent), so john could be aware; even if not, Dearborne had requisite mens rea | The john could have reasonably believed the sex was consensual; without john’s culpable mens rea, Dearborne cannot be guilty in concert | Affirmed: jury could find john aware; also Dearborne cannot rely on the john’s alleged good-faith belief because Dearborne himself intended and acted to overcome consent; omission of mistake-of-fact instruction not erroneous |
| Trial court’s duty to instruct on mistake of fact for the john | No instruction required: Dearborne did not rely on that defense at trial and there was no evidence supporting honest/reasonable belief of consent by the john | Court should have sua sponte instructed on mistake of fact as to the john’s belief | Rejected: no substantial evidence supporting the defense and defendant did not present it at trial; no sua sponte duty to instruct |
| Application of § 654 and concurrent/consecutive sentencing under One-Strike | Human trafficking and pimping share the same intent/objective here; pimping sentence must be stayed under § 654; trial court had discretion to run certain One-Strike counts concurrently but mistakenly thought consecutive sentences were mandatory | Counts reflect separate acts deserving separate punishment; court indicated it lacked discretion to run some counts concurrently | Partially reversed/remanded: stay sentence on pimping (count 8) under § 654; remand for resentencing so trial court can exercise discretion on whether to run specified One-Strike counts concurrently or consecutively; two additional days custody credit awarded; court may exercise discretion to strike the five-year enhancement under amended § 1385 |
Key Cases Cited
- People v. Griffin, 33 Cal.4th 1015 (force need not cause physical harm; ordinary meaning of force and pinning can satisfy rape)
- People v. Banks, 61 Cal.4th 788 (standard for reviewing sufficiency of the evidence)
- People v. Mayberry, 15 Cal.3d 143 (honest and reasonable belief in consent negates requisite mens rea for rape)
- People v. Deloach, 207 Cal.App.3d 323 (distinguishes pandering and forcible sex acts for § 654 analysis)
- People v. Solis, 206 Cal.App.4th 1210 (when successive sexual acts constitute separate occasions under One-Strike analysis)
- People v. Brown, 147 Cal.App.4th 1213 (remand required when trial court sentenced under the mistaken belief it lacked discretion)
- People v. Adams, 28 Cal.App.5th 170 (defendants sentenced under One-Strike law are not entitled to presentence conduct credits)