Opinion
B295562
06-04-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY McDANIEL, Defendant and Appellant.
Janet Gusdorff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. GA098777) APPEAL from a judgment of the Superior Court of Los Angeles County. Dorothy Shubin, Judge. Affirmed. Janet Gusdorff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury found defendant Anthony McDaniel guilty of two counts of kidnapping with intent to commit oral copulation. At trial, the court permitted the prosecutor to present testimony from a woman who alleged she had a similar experience with McDaniel eight years before the charged offenses. On appeal, McDaniel challenges the sufficiency of the evidence to support one of the convictions, and he contends the court erred in permitting evidence of his prior sex offense. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Around 10:00 p.m. on April 30, 2016, 18-year-olds Rosalinda R. and Zayra A. were waiting at a bus stop near Rosalinda's home in Pasadena. McDaniel, whom they had never met before, drove by a few times in a truck before pulling up and offering them a ride. They agreed and told McDaniel to take them to a party that was a few blocks away. Zayra got in the front seat and Rosalinda got in the back seat.
McDaniel asked Rosalinda and Zayra how old they were, and Rosalinda jokingly said "13." He asked if she was serious, and Rosalinda replied she was actually 18.
McDaniel offered to buy alcohol for Rosalinda and Zayra, and when they agreed, he said he would take them to a liquor store. At some point while he was driving, McDaniel said, "So . . . who's going to suck my dick now?" Rosalinda was scared and in shock. She told McDaniel this was the first time she had taken a ride from a stranger, and McDaniel responded that she "was fucked."
Rosalinda noticed McDaniel was not driving in the direction of the nearest liquor store, asked where he was taking them, and told McDaniel to let her out of the car or take her home. McDaniel said something to the effect of, "This is your fault. Y'all fucked up" or "you already fucked up."
Zayra remained silent, and McDaniel started rubbing her breast while driving in the direction of a freeway. As McDaniel turned onto the freeway onramp, Zayra opened the front passenger door and jumped out of the truck. She suffered a broken shin bone in two places, which required surgery.
McDaniel shut and locked the door and continued driving with Rosalinda still in the backseat. He screamed, "Why did your friend do that? I wasn't going to do anything to you guys or hurt you guys." Rosalinda asked McDaniel to drop her off anywhere. He did not respond and continued driving on the freeway. Rosalinda took out her phone and started dialing 911. Before she could do so, McDaniel took the phone and Rosalinda's wallet and put them inside the driver's side door.
McDaniel grabbed Rosalinda by the hair and pulled her into the front seat. He took out a gun, pointed it at Rosalinda, and threatened to kill her if she did not do what he wanted. Four or five times, Rosalinda asked McDaniel to stop and let her go.
McDaniel started touching Rosalinda's breasts on top of her clothing and said, "now you're going to . . . do me oral sex." He unzipped his pants, exposed his penis, grabbed Rosalinda's hair, and pulled her head towards his penis. As he was doing so, Rosalinda grabbed the steering wheel and twisted it back and forth, which caused McDaniel to hit another car.
McDaniel punched Rosalinda in the face and stopped his truck in the middle of the freeway. He opened the passenger door, pushed Rosalinda out of the truck, and sped away. The driver of another car stopped and called Rosalinda to her car to get her out of traffic. Rosalinda looked shocked and was breathing heavily.
McDaniel was charged with two counts of kidnapping with intent to commit oral copulation (Pen. Code, § 209, subd. (b)(1)). One count concerned Rosalinda and the other count concerned Zayra. It was further alleged that he suffered a prior strike conviction for an assault with intent to commit rape (Pen. Code, § 220).
The information also alleged that McDaniel personally inflicted great bodily injury upon Zayra. During trial, the court granted the prosecutor's motion to dismiss the allegation.
At trial, the prosecution presented evidence establishing the facts summarized above. Rosalinda was the prosecution's main witness. Zayra was not called to testify, apparently because she had moved out of state and could not be located.
The prosecution also presented location information gathered from a GPS monitoring device McDaniel was wearing, which was consistent with the events described above. It showed that, after stopping near the bus stop in Pasadena, McDaniel drove onto the 210 Freeway, the 134 Freeway westbound, the 2 Freeway southbound, the 5 Freeway southbound, and finally the 110 Freeway southbound, which is where he pushed Rosalinda out of the truck. It further showed McDaniel subsequently exiting the 110 Freeway and taking surface streets to his home in Compton.
McDaniel was wearing the GPS device as a condition of his parole related to his Penal Code section 220 conviction. The jury heard evidence that McDaniel was wearing the device, but it was not told it was because he was on parole.
The prosecution also called as a witness K.S., who testified to a similar experience with McDaniel that resulted in his conviction for an assault with intent to rape. K.S. met McDaniel in 2008, when she was 15 years old and he was around 30 years old. K.S. was walking down the street when McDaniel pulled up in a car and gave her his phone number. McDaniel had his six-year-old son with him. K.S. called McDaniel a day or so later, and she willingly had sex with him.
K.S. next saw McDaniel about a month later, when he asked her to see a movie with him. K.S. agreed, but said she was not interested in seeing him if he only wanted to have sex. McDaniel picked up K.S. and drove her to the movie theater. His son was not in the car. After parking, McDaniel showed K.S. he had a gun and told her to perform oral sex on him, but she refused. McDaniel slapped K.S., grabbed her by the neck, and forced her to orally copulate him.
McDaniel drove out of the parking lot with the gun sitting on his lap, and he told K.S. he was not taking her home. McDaniel stopped at two convenience stores. He told K.S. that if she left the car while he was in the stores, he would beat her, drag her back to the car, and have sex with her.
McDaniel eventually drove K.S. to his house in Compton. He forced K.S. inside, even though his father was home at the time. McDaniel had the gun with him, and he told K.S. if she screamed or called for help, he would hurt her more. McDaniel forced K.S. to orally copulate him, which injured the inside of her mouth.
In his defense, McDaniel called a police officer who investigated the incident with K.S. According to the officer, K.S. reported that McDaniel's son was in the car when he picked her up to go to the movies, and he then dropped the son off at home. K.S. also told the officer that she did not perform oral sex on McDaniel in the parking lot, even though he exposed himself and told her to do so. K.S. did not tell the officer that McDaniel had a gun.
The jury convicted McDaniel of both counts of kidnapping with intent to commit oral copulation. The court found true the allegation that McDaniel suffered a prior strike conviction for a violation of Penal Code section 220. On each count, the court imposed consecutive sentences of life with a minimum parole eligibility of seven years, doubled for the prior strike. The aggregate sentence was life with a minimum parole eligibility of 28 years.
McDaniel timely appealed.
DISCUSSION
I. Substantial Evidence Supports the Conviction for Kidnapping Zayra
McDaniel contends there is insufficient evidence to support his conviction for kidnapping Zayra. We disagree.
" 'To determine whether sufficient evidence supports a jury verdict, a reviewing court reviews the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Smith (2014) 60 Cal.4th 603, 617.) " ' "On appeal, we . . . must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" [Citation.]' [Citation.]" (People v. White (2014) 230 Cal.App.4th 305, 315, fn. 13.)
To prove kidnapping to commit oral copulation in violation of Penal Code section 209, subdivision (b), the prosecution must show, among other things, the defendant moved the victim without consent, and the defendant did not actually and reasonably believe the victim consented to the movement. (See People v. Adams (2018) 28 Cal.App.5th 170, 185, fn. 6; People v. Eid (2010) 187 Cal.App.4th 859, 869, 878; People v. Dejourney (2011) 192 Cal.App.4th 1091, 1115-1116.) McDaniel contends there is insufficient evidence to support both elements with respect to Zayra. He notes that because Zayra did not testify at trial, there was no direct evidence of her state of mind to show her lack of consent. He also points to evidence that, when he demanded oral sex and touched Zayra's breast, she did not say no, ask him to stop, flinch, or pull away. Instead, she remained silent until the moment she jumped from the truck.
Contrary to McDaniel's claims, the record contains substantial evidence establishing Zayra's lack of consent. The undisputed evidence shows that, as McDaniel was driving onto the freeway onramp, Zayra opened the passenger door and jumped from the moving truck. This provided strong circumstantial evidence that she did not consent to the movement. Indeed, we can think of few ways a kidnapping victim could express her lack of consent more clearly.
There is also substantial evidence showing McDaniel did not actually believe Zayra consented to the movement. Rosalinda testified that, after demanding the victims orally copulate him, McDaniel told Rosalinda she was "fucked." When Rosalinda subsequently asked McDaniel to let her out of the truck, he said something to the effect of "you already fucked up" or "y'all fucked up" by getting in the truck. The jury could have reasonably interpreted these comments as implicit threats to both victims, from which it could infer McDaniel believed they no longer consented to being in his truck. Indeed, McDaniel would have no reason to threaten the victims if he thought they were willing participants in his plan. (See People v. Dejourney, supra, 192 Cal.App.4th at p. 1116 [findings that a kidnapping victim's movements were accomplished by force or fear and without consent contradicted the defendant's claim that he actually and reasonably believed the victim consented].) The comments alone provide sufficient evidence from which the jury could have found McDaniel did not actually believe Zayra consented to the movement.
McDaniel insists his comments were simply a "sexual overture" in response to Rosalinda flirtatiously teasing him about her age. We detect nothing flirtatious or sexual about his comments. Instead, it is clear from the circumstances McDaniel was conveying to the victims that they had made a mistake and were now in danger. His comments were threats, not playful banter.
But even if McDaniel's interpretation of his comments were reasonable—which it is not—it still would not warrant reversal. " 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt.' [Citation.]" (People v. Farnam (2002) 28 Cal.4th 107, 143.) Therefore, when the record contains evidence reasonably justifying a jury's finding, reversal is not warranted on the ground that the evidence "might also be reasonably reconciled with a contrary finding." (People v. Redmond (1969) 71 Cal.2d 745, 755.) Here, it is enough that the jury could have reasonably interpreted McDaniel's comments as threats, thereby reflecting his knowledge that Zayra did not consent to remaining in the truck.
McDaniel further contends his lack of knowledge is evident from the fact that, immediately after Zayra jumped from the truck, he asked Rosalinda "Why did your friend do that? I wasn't going to do anything to you guys or hurt you guys." According to McDaniel, these comments show he was surprised by Zayra's action, suggesting he believed she had consented to remaining in the truck up until that point. The jury, however, was not compelled to draw that inference. Instead, it could have reasonably concluded the comments reflected McDaniel's surprise that Zayra would make such a drastic and dangerous effort to escape. Alternatively, the jury may have reasonably concluded McDaniel was simply lying in order to deescalate the situation and ensure Rosalinda did not try something similar.
Even if McDaniel actually believed Zayra consented to the movement, there was sufficient evidence from which the jury could find that belief was unreasonable. The evidence shows McDaniel was a complete stranger and significantly older than Zayra, who was a teenager. Although Zayra initially got into McDaniel's truck voluntarily, without warning or explanation he drove toward a freeway in a different direction than they had agreed. He demanded she perform oral sex, groped her breast without permission, said her friend was "fucked," and commented that she "fucked up" by deciding to get in his truck. No reasonable person would believe Zayra continued to consent to the movement under such circumstances. This is true, even if she remained silent and did not actively resist.
McDaniel's reliance on People v. Stephenson (1974) 10 Cal.3d 652 (Stephenson), is misplaced. In that case, the defendant told two people he would chauffeur them from the airport to their destinations, but instead drove them to other locations and robbed them. (Id. at pp. 656-657.) Although the victims were somewhat suspicious the defendant was not taking them to their destinations, they never asked that he let them out of the car. (Ibid.) The California Supreme Court overturned the defendant's convictions for kidnapping with intent to commit robbery on the basis that he used fraud and deceit, rather than force or fear, to persuade the victims to ride in his car. (Id. at pp. 659-660.)
As McDaniel acknowledges, it is well-established that a kidnapping may occur where the victim initially consents to the movement, but subsequently withdraws that consent. (See People v. Hovarter (2008) 44 Cal.4th 983, 1017-1018; People v. Alvarez (2016) 246 Cal.App.4th 989, 1004.) In Stephenson, there was no kidnapping because there was no evidence that the victims withdrew their initial consent. Here, in contrast, circumstantial evidence shows Zayra withdrew her consent at some point during the ride, and McDaniel did not actually and reasonably believe otherwise. As discussed above, this is sufficient to support the kidnapping conviction.
II. The Trial Court Did Not Abuse its Discretion in Admitting K.S.'s Testimony
McDaniel contends the trial court abused its discretion in refusing to exclude K.S.'s testimony under Evidence Code section 352. We disagree.
All further unspecified statutory references are to the Evidence Code.
A. Background
Prior to trial, McDaniel moved to exclude K.S.'s testimony under section 352. McDaniel anticipated that, in addition to the events summarized above, K.S. would testify that he forced her to kneel "like a dog," perform sex acts on herself while he watched, and have vaginal and anal intercourse. He argued the evidence should be excluded because, among other reasons, the incident was more egregious than the charged crimes, it was too remote in time, K.S.'s recollection of events had become distorted, and defending against the allegations would require an undue consumption of time.
The prosecutor responded that the evidence helped prove her theory of the case, which was that McDaniel was driving Rosalinda and Zayra to his home, where he intended to force them to orally copulate him. She argued K.S.'s testimony was admissible to show McDaniel's predisposition to commit another sexual offense, as well as to show intent, a common plan, and the absence of mistake.
The court overruled McDaniel's objection, finding the evidence admissible under sections 1101 and 1108. The court noted K.S.'s allegations of forced oral copulation were quite similar to the charged offenses and relevant to show McDaniel's intent and a common plan. Further, the fact that McDaniel had been convicted of a crime related to the incident lessened the risk that the jury would seek to punish him in this case for his prior conduct. The court, however, precluded any testimony regarding sex acts other than oral copulation, which it noted were less relevant to the current charges and potentially quite inflammatory.
B. Relevant Law
Section 1101, subdivision (a), sets forth the general rule that propensity evidence, including evidence of specific instances of prior conduct, is not admissible to prove a defendant's conduct on a specific occasion. (People v. Jackson (2016) 1 Cal.5th 269, 299.) At the same time, evidence of a defendant's prior acts is admissible under section 1101, subdivision (b), "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act." (§ 1101, subd. (b).) The degree of similarity between the acts is a key factor, and "there exists a continuum concerning the degree of similarly" required for admission, "depending upon the purpose for which introduction of the evidence is sought[.]" (People v. Soper (2009) 45 Cal.4th 759, 776.) The least degree of similarity is required to prove intent. (Ibid.) "By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity." (Ibid., fns. omitted.)
Section 1108 provides an exception to section 1101's general exclusion of propensity evidence. It permits in "a criminal action in which the defendant is accused of a sexual offense, [admission of] evidence of the defendant's commission of another sexual offense or offenses . . . ." (§ 1108, subd. (a).) The rationale behind the exception is that " '[t]he propensity to commit sexual offenses is not a common attribute among the general public. Therefore, evidence that a particular defendant has such a propensity is especially probative and should be considered by the trier of fact when determining the credibility of a victim's testimony.' [Citations.]" (People v. Villatoro (2012) 54 Cal.4th 1152, 1164.)
Evidence of a defendant's prior sexual offense—whether admissible as propensity evidence or under section 1101, subdivision (b)—is subject to exclusion under section 352. (§ 1108, subd. (a); People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823; People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Section 352 states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
When deciding whether to admit evidence of a defendant's prior sexual offense, trial courts "must engage in a careful weighing process. . . . Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.)
We review a trial court's admission of a defendant's prior sex offenses for an abuse of discretion. (People v. Loy (2011) 52 Cal.4th 46, 61; see People v. Cole (2004) 33 Cal.4th 1158, 1195.) "A court abuses its discretion when its rulings fall 'outside the bounds of reason.' " (People v. Ochoa (1998) 19 Cal.4th 353, 408.) We will uphold the court's decision "unless it exercised its discretion in an arbitrary, capricious, or patently absurd manner. [Citations.]" (People v. Thomas (2012) 53 Cal.4th 771, 806.)
C. Application
Here, there are significant similarities between the charged crimes and the incident involving K.S. In each, the victims were teenagers with whom McDaniel had little prior relationship. He convinced the victims to willingly get in his car, before threatening them with a gun and demanding they orally copulate him. When the victims hesitated or refused, he used physical force to pull them towards his genitals. In the prior incident, McDaniel drove the victim to his house, against her will, where he again forced her to orally copulate him. In the charged crimes, the GPS evidence indicated McDaniel was driving the victims to his house before one escaped and the other caused a collision.
These similarities were sufficient to admit K.S.'s testimony as propensity evidence under section 1108. Indeed, her testimony shows McDaniel is the sort of person who would kidnap a teenager and force her to orally copulate him, which is precisely what he was alleged to have done here.
The similarities were also sufficient to admit the evidence under section 1101, subdivision (b), to show intent and a common plan. K.S.'s testimony helped prove that McDaniel kidnapped Rosalinda and Zayra with the specific intent of forcing them to orally copulate him. It also showed he was operating pursuant to a common plan in both instances, which was to target vulnerable teenagers, convince them to get in his vehicle, demand by threat of force they orally copulate him, and then drive them to his house by threat of force.
McDaniel does not contest that K.S.'s testimony was admissible for these purposes. Nonetheless, he insists the court should have excluded the evidence under section 352, because its probative value was substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. We disagree.
As we discussed, K.S.'s testimony was relevant for multiple purposes, and its probative value for those purposes was substantial. The trial court, moreover, minimized the risk of undue prejudice by limiting the testimony to the forced oral copulation and precluding any discussion of other, potentially inflammatory sex acts. (See People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.) The court also correctly recognized the prejudicial effect was lessened by the fact that McDaniel was convicted of a crime related to the incident, which lowered the risk that the jury would convict him of the charged crimes to punish him for his prior acts. (See People v. Loy, supra, 52 Cal.4th at p. 61.) It is clear the court performed the requisite "careful weighing process" and acted well within its discretion in permitting K.S. to testify.
We reject McDaniel's contention that the incident with K.S. was too remote to be probative. There is no specific time at which an uncharged crime becomes too remote, and courts frequently allow evidence of prior sex crimes that occurred decades earlier. (See, e.g., People v. McCurdy (2014) 59 Cal.4th 1063, 1099 [upholding admission of sex crime that occurred 17 to 30 years before the charged crime]; People v. Robertson (2012) 208 Cal.App.4th 965, 992 [more than 30 years earlier]; People v. Hernandez (2011) 200 Cal.App.4th 953, 968 [between 7 and 40 years earlier]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years earlier].) Here, there was only an eight-year gap between the incident with K.S. and the charged crimes, and the gap had even less significance given McDaniel was incarcerated for a portion of that time. (See People v. Walker (2006) 139 Cal.App.4th 782, 807 [20-year gap not too remote where the defendant was incarcerated for 11 of those years].) Moreover, any remoteness in time was balanced by the significant similarities between the prior and current acts. (See People v. McCurdy, supra, 59 Cal.4th at p. 1099; People v. Waples, supra, 79 Cal.App.4th at p. 1395.)
McDaniel was sentenced to probation in connection with the assault with intent to rape K.S. His probation was subsequently revoked, and he was sentenced to six years in prison. He was paroled in 2015.
McDaniel next insists the evidence had minimal probative value because K.S. had difficulty recalling what she told investigating detectives and her testimony differed somewhat from her prior statements to police. Once again, we are not persuaded. Although K.S. had some difficulty recalling precisely what she told investigators, she did not have difficulty recalling the most relevant events. Moreover, such prior inconsistent statements are common for victims of sex crimes, especially when the victims are young. The jury was fully capable of evaluating how they reflected on K.S.'s credibility.
McDaniel also contends there are several differences between the incidents, which lessen the probative value of K.S.'s testimony. Specifically, he points to the facts that he was convicted of a different crime against K.S., the victims were different ages, and he previously had "consensual" sex with K.S., whereas he had no prior relationship with Rosalinda and Zayra.
We do not find any of these differences so significant as to render the evidence inadmissible. While it is true McDaniel was convicted of assaulting K.S. to commit rape, her testimony at trial established he also kidnapped her to commit oral copulation. According to K.S., McDaniel drove her against her will from the movie theater to his house, where he forced her to orally copulate him. Her testimony, if believed, showed McDaniel committed the same offense against her for which he was charged in the present case.
We also do not find the three-year age difference between the victims, or the fact that McDaniel previously had "consensual" sex with K.S., to be particularly meaningful. In both cases, the victims were teenagers who had little prior relationship with McDaniel. Moreover, given the numerous other similarities recounted above, these relatively minor differences went to the weight of the evidence, not its admissibility. (See People v. McCurdy, supra, 59 Cal.4th at p. 1098 ["the differences between the crimes went to the weight, if any, the jury assigned to the evidence"]; People v. Hernandez, supra, 200 Cal.App.4th at p. 967 ["any dissimilarities in the alleged incidents relate only to the weight of the evidence, not its admissibility"].)
Finally, McDaniel argues K.S.'s testimony was unduly prejudicial because it was significantly more inflammatory than the charged crimes. In support, he points to the facts that he had sex with K.S. while she was a minor, he physically injured her, and he forced her to orally copulate him while his father was in the house.
While we agree the K.S. incident was reprehensible, we disagree that it was significantly more inflammatory than the charged offenses. The evidence in this case shows McDaniel kidnapped two teenagers, demanded they orally copulate him, and ominously warned they had "fucked up" by getting in his truck. Zayra was so frightened that she purposely jumped from the moving truck, which caused her to suffer serious injuries. McDaniel then locked the doors to ensure Rosalinda could not escape, grabbed her phone so she could not call for help, and drove her miles away from her home. When Rosalinda resisted McDaniel's attempt to force her to orally copulate him, he punched her in the face and pushed her out of the truck in the middle of the freeway. It is pure luck that she was not seriously injured or killed. Given the horrific nature of both incidents, we cannot say one was significantly more inflammatory than the other.
DISPOSITION
We affirm the judgment.
BIGELOW, P. J. WE CONCUR:
GRIMES, J.
WILEY, J.