Filed 1/8/16 P. v. Mitchell CA3
                                                NOT TO BE PUBLISHED
           California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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                    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                            THIRD APPELLATE DISTRICT
                                                          (Sacramento)
                                                                 ----

THE PEOPLE,                                                                                    C076901

                   Plaintiff and Respondent,                                      (Super. Ct. No. 13F05850)

         v.

ERIC LEWIS MITCHELL,

                   Defendant and Appellant.




         Sentenced to an aggregate state prison term of 14 years after a jury convicted him
of rape and forcible oral copulation, defendant Eric Lewis Mitchell contends the trial
court abused its discretion by imposing the eight-year upper term for rape. We affirm the
judgment.

                                                 FACTS AND PROCEEDINGS

         A first amended information accused defendant of forcible rape (count 1; Pen.
Code, § 261, subd. (a)(2); unless otherwise set forth statutory references that follow are to
the Penal Code) and forcible oral copulation (count 2; § 288a, subd. (c)(2)). The
information alleged as to both counts that defendant inflicted great bodily injury upon the
victim. (§ 12022.8.)


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        Trisha Doe, the victim, testified that on the date of the crime, she got off work,
went home to her apartment in Del Paso Heights, and had some brandy. Later, she left
her apartment to buy more brandy and saw defendant, who lived in a house across the
street. They were not closely acquainted, but they would say hello when they saw each
other and she would occasionally give him a cigarette.
        Trisha asked defendant, who was also going to the store, to accompany her. They
walked to the store, made their purchases, and started to return home. Defendant
suggested they return by way of the American River bike trail.
        As soon as they got on the trail, defendant grabbed Trisha from behind and tried to
choke her. She attempted to break away, but failed.
        Overcoming Trisha’s resistance, defendant removed her shorts, then repeatedly
tried to insert his penis into her vagina; every time she struggled or screamed for help, he
choked her again. At first, he put her on her hands and knees, then on her back; his penis
went inside her “a little bit.” She could feel that it was erect. Eventually, he put it inside
her mouth.
        The assault lasted 15 to 20 minutes, but Trisha believed she was unconscious part
of the time and could not remember all the details. She saw people going by on the trail,
but no one helped her. At one point, she saw a man on a bicycle watching and screamed
for help, but defendant choked her to silence her. Unable to breathe, she feared for her
life.
        Fernando Ohler, riding home from work on his bicycle, saw defendant in the act of
assaulting Trisha and heard her yelling for help in “terror.” Ohler called out to defendant
to stop and said he was calling 911, but defendant did not stop. Ohler then called 911 and
reported the rape in progress.
        A dispatch call went out at 7:28 p.m. Officers arriving on the scene seven or eight
minutes later found defendant still raping and choking Trisha, who was lying on her back



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in the middle of the bike trail; people continued to walk by without helping. Seeing the
officers, defendant got off Trisha; his penis was semi-erect.
       Trisha crawled backward toward the officers, screaming for help, shaking and
crying and saying she wanted to get out of there. She had red fingerprints and marks on
her neck, scratched knees and elbows, a chipped tooth, and redness in the corners of her
eyes. Due to her neck injury, she was salivating and could not swallow. She said she
thought she was going to die.
       Dr. Angela Rosas, who conducted a sexual assault examination of Trisha, found
injuries to the hymen consistent with penetration by a penis. Trisha’s other injuries
included bruising and abrasions on her knees, legs, upper chest, and left arm, a chipped
tooth, and many signs of strangulation (petechia from her chest to her face, hemorrhaging
in the whites of her eyes, bruises across her neck, hoarseness, a cough, and difficulty
swallowing). Dr. Rosas referred her to the emergency department for treatment of her
strangulation injuries.
       Defendant did not testify. His only witness was Dr. Bennet Omalu, a county
medical examiner and expert in forensic and anatomical pathology, who opined based on
photographs of Trisha’s genitalia, police reports, and medical records that she had not
been vaginally penetrated, but had suffered only fingernail abrasions in that area.
       The jury convicted defendant on counts 1 and 2, but could not reach a verdict on
the great bodily injury allegations, as to which the trial court declared a mistrial.
       The probation report recommended an aggregate state prison sentence of 16 years,
consisting of the upper term on both counts run consecutively. As to count 1, the report
stated as a circumstance in aggravation that the manner in which defendant carried out
the crime indicated planning. (Cal. Rules of Court, rule 4.421(a)(8); further references to
“rules” are to the Cal. Rules of Court.) As to count 2, the report stated as a circumstance
in aggravation that the crime involved acts disclosing a high degree of cruelty and
callousness. (Rule 4.421(a)(1).) As to full consecutive sentencing, the report stated as a

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circumstance in aggravation that defendant had been convicted of multiple violent sex
crimes involving a single victim during a single occasion, reflecting that he was a danger
to society. (Rules 4.421(b)(1), 4.426.) The report noted as circumstances in mitigation
that defendant was youthful (age 20) (rule 4.408) and had no known prior criminal record
(rule 4.423(b)(1)). The report attached letters on defendant’s behalf from family
members and a family friend, which stated that defendant had recently gone through
emotional stress due to his father’s major illness.
       Defense counsel argued that if the trial court sentenced consecutively, it should
choose the lower term on both counts.
       Counsel disputed the factors in aggravation found by the probation report.
According to counsel, defendant’s crimes did not involve any violence or callousness
greater than that necessary to commit the crimes and did not show that defendant’s
violent conduct made him a danger to society: “[A]lmost in every rape by force or oral
cop by force you’re going to have some force or violence, and therefore I think that’s
somewhat subsumed by the actual elements for [sic] the offense.” As to “planning,”
counsel asserted that it was the victim who asked to join defendant going to the store, and
that the circumstances of the assault -- “an attack that was carried out in broad daylight in
the middle of an open field on a bike trial” -- showed “a lack of planning,” if anything.
Lastly, counsel stressed the factors in mitigation: defendant’s youth, lack of a criminal
record, and recent stress from his father’s illness.
       The prosecutor argued in support of the probation report’s recommendation:
Strangling the victim to the point of unconsciousness more than once, as defendant did,
was not an element of either charged offense and showed a high degree of cruelty and
callousness. Assaulting the victim in a public place in full view of passersby was
especially degrading and callous. The fact that defendant was not deterred by
eyewitnesses to his assault indicated his dangerousness to the community. Although he



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had no criminal convictions or sustained juvenile allegations, he did have juvenile
“contacts” with the criminal system that were not mentioned in the probation report.
       The trial court ruled that it would impose the upper term on count 1 (forcible rape)
based on rule 4.421(a) (crime involved great violence and acts disclosing a high degree of
cruelty, viciousness, or callousness). Defendant’s crime was brutal beyond the norm for
sexual assault. Although the jury hung on the great bodily injury allegations, the court
could consider the extent of the victim’s injuries in assessing the brutality of the crime.
The court also found that rule 4.421(b)(1) (defendant’s conduct shows he is a danger to
society) applied. The court found further that under rule 4.426(a)(2) (crimes committed
against a single victim on separate occasions), consecutive sentencing was appropriate on
count 2; however, the court chose the six-year midterm on that count due to defendant’s
youth and insignificant prior criminal record.

                                            DISCUSSION

       Defendant contends the trial court’s choice of the upper term on count 1 was an
abuse of discretion.
       When making sentencing decisions, trial courts have wide discretion in weighing
aggravating and mitigating factors. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582
(Avalos).) A single valid aggravating factor justifies the upper term. (People v. Black
(2007) 41 Cal.4th 799, 815 (Black).) The court may rely on any aggravating
circumstances reasonably related to its sentencing decision (People v. Sandoval (2007)
41 Cal.4th 825, 848) and need not explain its reasons for rejecting alleged mitigating
circumstances (Avalos, supra, 47 Cal.App.4th at p. 1583). We review the court’s
sentencing choices for abuse of discretion. (People v. Superior Court (Alvarez) (1997)
14 Cal.4th 968, 977-978.)
       The trial court cited two aggravating factors to justify the upper term on count 1:
the great violence, brutality, and callousness involved in the crime (rule 4.421(a)(1)), and


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the serious danger to society indicated by the violence of defendant’s conduct (rule
4.421(b)(1)). Defendant’s opening brief offers no argument as to the second factor, and
his reply brief expressly concedes that it applies. Since a single valid aggravating factor
justifies the upper term (Black, supra, 41 Cal.4th at p. 815), the court’s sentencing
decision on count 1 was within its discretion if the record supports the one aggravating
factor relied on by the trial court in sentencing defendant for the crime of rape.
       Turning to that, defendant’s argument (for which he cites no supporting authority)
that his rape of the victim was not exceptionally violent, brutal, or callous needs only
brief discussion. Like the trial court, we find it unpersuasive. Defendant’s strangulation
of the victim, which was not an element of the offense, inflicted pain and injury on her
beyond that inherent in the act of rape. And his decision to perpetrate the crime in a
public place in the view of many passersby, exposing the victim to prolonged shame and
humiliation, was extraordinarily callous. The record amply supports the trial court’s view
that the rape of Trisha D. demonstrated great violence, brutality, and callousness.

                                           DISPOSITION

       The judgment is affirmed.


                                                         HULL                  , J.


       We concur:


             RAYE           , P. J.



             ROBIE          , J.




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