Brown

Danny Lavel Brown appeals from judgment entered following a jury trial in which he was convicted of three counts of kidnapping (Pen. Code, § 207, subd. (a)), nine counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), one count of sodomy with a child under fourteen years of age with “ten years difference” (Pen. Code, § 286, subd. (c)) and one count of forcible lewd act upon a child (Pen. Code, § 288, subd. (b).) As to the kidnapping charges, the jury found that the kidnapping in one count was for the purpose of committing rape pursuant to Penal Code section 208, subdivision (d), and the kidnapping in the remaining two counts was a kidnapping of a person under fourteen years of age pursuant to Penal Code section 208, subdivision (b). On appeal he contends the court committed reversible error in allowing a witness to be examined regarding gang affiliation, abused its discretion by denying the defense a continuance and committed sentencing and instructional errors.

*594 Statement of Facts and Procedural History

On March 29, 1991, after taking a bus to 8th Avenue, 15-year-old Ingrid F. was walking to Mount Vernon Junior High school when she passed defendant going in the…

Concurring and Dissenting. I concur with my colleagues as to most of the issues discussed in the majority opinion. I respectfully dissent, however, from that portion of the opinion imposing consecutive sentences for each of eight of appellant’s penile thrusts during his single sexual assault on one of the victims, Jamie S.

Before explaining my reasons, I want to highlight what I am not arguing in this case. I am not saying appellant’s crime was not terrible and deserving of severe punishment. Nor am I suggesting the total punishment imposed for appellant’s rape of this victim would not have been justified if that were the sentence allowed for a single sexual assault of this nature. Furthermore, I am not concerned about the consecutive sentences imposed for different sexual acts against the same victim—e.g., the sodomy and the rape of Jamie S. —even though they occurred as part of the same transaction.

What bothers me instead is the way this sentence was compounded by treating eight thrusts of appellant’s penis as separate crimes, each carrying a sentence of eight years, despite the fact these thrusts all occurred during a single act of forced intercourse. Fully 56 years of…

Danny Lavel Brown appeals from judgment entered following a jury trial in which he was convicted of three counts of kidnapping (Pen. Code, § 207, subd. (a)), nine counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), one count of sodomy with a child under fourteen years of age with "ten years difference" (Pen. Code, § 286, subd. (c)) and one count of forcible lewd act upon a child (Pen. Code, § 288, subd. (b).) As to the kidnapping charges, the jury found that the kidnapping in one count was for the purpose of committing rape pursuant to Penal Code section 208, subdivision (d), and the kidnapping in the remaining two counts was a kidnapping of a person under fourteen years of age pursuant to Penal Code section 208, subdivision (b). On appeal he contends the court committed reversible error in allowing a witness to be examined regarding gang affiliation, abused its discretion by denying the defense a continuance and committed sentencing and instructional errors.

On March 29, 1991, after taking a bus to 8th Avenue, 15-year-old Ingrid F. was walking to Mount Vernon Junior High school when she passed defendant going in the opposite direction. Defendant…