5 Cal. App. 5th 454
Cal. Ct. App.2016Background
- Defendant Arthur Lee Perkins Jr. was convicted of multiple sexual offenses: rape and sodomy of an 11-year-old (T.) and forcible rape and oral copulation of a 17-year-old (A.). DNA and eyewitness identifications linked him to both crimes.
- At T.’s residence (one-bedroom apartment), defendant sodomized and raped the child in the bathroom, then ordered her to the bedroom and committed further sexual acts; movements between bathroom and bedroom were 10–30 feet.
- At A.’s case, defendant knocked her unconscious near train tracks, dragged her to a nearby wall, threatened her family, sexually assaulted her, and stole her belongings; semen on her dress matched defendant’s DNA.
- The jury convicted on 13 counts and found several special enhancements, including one-strike aggravated kidnapping enhancements (§ 667.61) as to counts 3 and 6 (related to T.), producing life-without-parole sentences under the one-strike law.
- Trial rulings: joinder of the two victim-based prosecutions; denial of motion to suppress penile/mouth swabs taken without a warrant (defendant was on searchable parole); no sua sponte cautionary/corpus delicti instructions for out-of-court admissions; no Marsden hearing held.
- Appellate disposition: court reversed the one-strike aggravated kidnapping and kidnapping enhancements for counts 3 and 6 for insufficient evidence, stayed one sentence under § 654, affirmed remaining convictions and rulings, and remanded solely for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated kidnapping / kidnapping enhancements (one-strike) | Prosecutor: movement from bathroom to bedroom satisfied asportation and substantially increased risk of harm, supporting enhancements. | Perkins: movement was short (10–30 ft.), incidental to the sex crimes, and did not substantially increase risk; insufficient evidence for enhancements. | Reversed enhancements on counts 3 and 6 — movement inside small apartment was incidental and did not substantially increase risk; enhancements stricken and remand for resentencing. |
| Joinder of the two victim cases | Prosecutor: counts were same class (sex offenses) and evidence cross-admissible under Evid. Code §1108; joinder efficient and proper. | Perkins: joinder produced spillover prejudice, weak A. case joined with strong T. case, and no limiting instruction on propensity. | Affirmed — joinder not an abuse of discretion; evidence cross-admissible, both cases strong, no undue prejudice; no sua sponte limiting instruction required and defendant forfeited request. |
| Motion to suppress DNA swabs (warrantless penile/mouth swabs) | State: defendant was on searchable parole; parole-search exception permits warrantless, suspicionless searches if not arbitrary/harassing. | Perkins: search was invasive, could have waited for warrant/medical personnel, was harassing and unreasonable. | Affirmed denial — search lawful under parole-search condition (Pen. Code §3067); not arbitrary, capricious, or harassing; prosecution met reasonableness burden. |
| Failure to give cautionary/corpus delicti instructions and Marsden hearing | State: no sua sponte duty to give cautionary admissions instruction after Diaz; corpus delicti instruction not required where statements were part of the crime; no clear Marsden request. | Perkins: court should have instructed CALCRIM Nos. 358 and 359 sua sponte and held Marsden hearing after his letter/complaints about counsel. | Affirmed — no sua sponte duty to give CALCRIM No. 358 (People v. Diaz); CALCRIM No. 359 not required because statements were made during the crimes; no clear and timely request for substitute counsel so Marsden not required. |
Key Cases Cited
- People v. Dominguez, 39 Cal.4th 1141 (Cal. 2006) (asportation/aggravated kidnapping standard: movement must be more than incidental and substantially increase risk of harm; multifactor/contextual analysis)
- People v. Martinez, 20 Cal.4th 225 (Cal. 1999) (asportation requires movement "substantial in character" and consideration of totality of circumstances)
- People v. Daniels, 71 Cal.2d 1119 (Cal. 1969) (movement within premises often incidental; caution against fixed-distance rules)
- People v. Vines, 51 Cal.4th 830 (Cal. 2011) (room-to-room movement can support aggravated kidnapping where context substantially increases risk)
- People v. Rayford, 9 Cal.4th 1 (Cal. 1994) (applying Daniels test to kidnapping in sex-crime context)
- Samson v. California, 547 U.S. 843 (U.S. 2006) (parole search doctrine: suspicionless searches of parolees are permissible when not arbitrary or harassing)
- People v. Diaz, 60 Cal.4th 1176 (Cal. 2015) (trial courts no longer required to give cautionary admissions instruction sua sponte)