Filed 5/8/13 P. v. Bluitt CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                          B238519

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. TA116798)
         v.

DARNELL BLUITT,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Pat Connolly, Judge. Affirmed.
         Vanessa Place, under appointment by the Court of Appeal, for Defendant
and Appellant.
         No appearance for Plaintiff and Respondent.
      Darnell Bluitt appeals from the judgment entered following his conviction
by jury on one count of rape of an unconscious person. (Pen. Code, § 261, subd.
(a)(4).)1 We affirm.
      On February 15, 2011, around 2:30 p.m., Lawanda Bogan was driving her
bus down Compton Boulevard, nearing the end of her shift. There were five
passengers on the bus at the time. As she approached a bus stop at the corner of
Compton and Willowbrook, she saw a man bending over the bus stop bench. His
hands were on the top of the bench, and he was leaning over the seat. Bogan
initially thought the man was relieving himself, but then she saw a woman
underneath him. The man’s pants were down, and he was moving up and down, as
if he were having sex.
      Bogan stopped her bus to let a female passenger off, and Bogan noticed that
the woman on the bus stop bench had her eyes closed, was passed out, and was not
moving. The female passenger looked out the bus window and exclaimed that the
man was raping the woman, so Bogan told her to flag down a sheriff who was at a
nearby El Pollo Loco restaurant. The passenger exited the bus and started
screaming at the man, “You’re raping her. Get off of her.”
      Bogan moved the bus forward and opened the doors again, and she saw a
woman standing near the bus stop flag down the sheriff, who was leaving the El
Pollo Loco parking lot. The man on the bus stop bench was still on top of the
woman, but he was looking toward the sheriff. Bogan identified appellant in court
as the man.
      Appellant got off the woman, sat next to her on the bench, pulled up his
pants and zipped them. The woman appeared to be passed out, with her head tilted
to one side, and her pants pulled down so that her vagina was exposed.

1
      All further statutory references are to the Penal Code unless otherwise specified.
                                              2
       Frank Abney was a passenger on the bus who witnessed the incident and
testified about it at trial, describing the incident in the same manner as Bogan. He
identified appellant in court. Abney testified that, when the female passenger was
yelling at appellant to get off the woman, appellant replied, “Call the damn police.
I don’t give an f-ing what you do.”
       Sergeant Michael Modica was the sheriff who was at El Pollo Loco and first
responded to the incident. He saw appellant sitting on the bench next to the
woman with her pants down. The woman appeared to be passed out and did not
respond to deputies’ attempts to rouse her. Sergeant Modica stopped Bogan from
driving the bus away, allowing her to leave after he received names and contact
information from everyone on the bus. While Sergeant Modica was speaking to
Bogan, he saw appellant pulling the victim’s pants up. Appellant was taken into
custody.
       Compton firefighter/paramedic Jason Billy Velez assessed the victim’s
condition and transported her to the hospital. She was sluggish and not very
responsive during the ambulance ride. Dr. Jamie Soo-Moi Eng, an emergency
room physician who treated the victim at the hospital, also testified about the
victim’s condition.
       Detectives Anthony Meraz and Connie Delgado read appellant his Miranda
rights (Miranda v. Arizona (1966) 384 U.S. 436) and interviewed him. Appellant
explained that he and the victim met at the bus stop bench, and she asked if he
wanted to go across the street to buy something to drink. They went to a store and
bought some brandy, drank it at the bus stop, and she fell asleep. He had sex with
her after she fell asleep.
       In defense, appellant presented a video showing him and the victim buying
alcohol together.

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       Appellant was charged by information with one count of rape of an
unconscious person. The information further alleged that appellant had suffered a
conviction under section 245, which constituted both a prior strike within the
meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))
and a prior serious felony conviction (§ 667, subd. (a)(1)).
       During deliberations, the jury asked for readback of appellant’s statements to
Detective Meraz. The jury found appellant guilty, and the court found the
allegation of a prior violation of section 245 to be true.
       The court granted appellant’s Romero motion (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497) and struck his prior strike based on its age. The
court sentenced appellant to the upper term of 8 years, plus 5 years pursuant to
section 667, subdivision (a)(1), for a total of 13 years.
       Appellant filed a timely notice of appeal. After review of the record,
appellant’s court-appointed counsel filed an opening brief asking this court to
review the record independently pursuant to the holding of People v. Wende (1979)
25 Cal.3d 436, 441.
       On October 29, 2012, we advised appellant that he had 30 days within which
to submit any contentions or issues that he wished us to consider. On November
16, 2012, appellant filed a supplemental brief, contending that he was denied his
Sixth Amendment right to confront witnesses because the alleged victim never
accused him of the offense.
       At the beginning of trial and before closing arguments, appellant complained
to the court that he did not have the opportunity to face his accuser. The court
explained that the presence of the victim is not required (noting that in a murder
trial, if the victim is not available to testify) and that the accuser is actually not the



                                             4
victim but the People of the State of California. Appellant’s concern that the
victim did not testify is the issue that he raises on appeal.
      “‘A criminal defendant has the right, guaranteed by the confrontation clauses
of both the federal and state Constitutions, to confront the prosecution’s witnesses.
[Citations.] The right of confrontation “seeks ‘to ensure that the defendant is able
to conduct a “personal examination and cross-examination of the witness, in which
[the defendant] has an opportunity, not only of testing the recollection and sifting
the conscience of the witness, but of compelling him to stand face to face with the
jury in order that they may look at him, and judge by his demeanor upon the stand
and the manner in which he gives his testimony whether he is worthy of belief.”’
[Citation.] To deny or significantly diminish this right deprives a defendant of the
essential means of testing the credibility of the prosecution’s witnesses, thus
calling ‘into question the ultimate “‘integrity of the fact-finding process.’”’
[Citation.]” [Citation.]’” (People v. Roldan (2012) 205 Cal.App.4th 969, 978.)
      Appellant’s right to confrontation was not violated. Although the victim of
the offense did not testify, there were numerous witnesses who did testify.
Defense counsel had ample opportunity to cross-examine the prosecution’s
witnesses and did so extensively.
      We have examined the entire record and are satisfied that no arguable issues
exist, and that appellant has, by virtue of counsel’s compliance with the Wende
procedure and our review of the record, received adequate and effective appellate
review of the judgment entered against him in this case. (Smith v. Robbins (2000)
528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)




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                   DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                WILLHITE, Acting P. J.




We concur:




MANELLA, J.




SUZUKAWA, J.




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