Campbell

Does covering the eyes of the victim of a sexual assault with tape so as to prevent sight constitute “tying or binding” of the victim? Seeking an answer to this question, the People appeal from a superior court order granting a Penal Code section 995 motion to set aside an allegation under section 667.61, subdivisions (a), (c) and (e)(2), (6) that Robert Campbell did, in the course of committing sodomy by force in violation of section 286, tie or bind his victim.

The magistrate at the preliminary hearing found that binding the victim’s head herein did not come within the statute, and the superior court later granted Campbell’s motion to set aside the repleaded allegation. Campbell here asserts that the challenged determination was a factual one, which is not now subject to our redetermination, and in any event, the phrase “tying or binding” is unconstitutionally vague. Finding the undisputed evidence of Campbell’s conduct comes within the statutory prohibitions, and the rulings below were thus erroneous, we reverse.

Facts

K.M. had known Campbell for some months before August 21, 1998, and had also seen him on that day, which was her 64th birthday. In the afternoon,…