People v. Phelps CA4/1
Opinion
Opinion
INTRODUCTION
A jury found Tresor Ndandu and Ricky Laroy Phelps guilty of forcible rape
(Pen. Code, § 261, subd. (a)(2)),1 rape by a foreign object with the use of force (§ 289,
subd. (a)), and forcible oral copulation (§ 288a, subd. (c)(2)(A)) of a young woman
(B.F.), they found intoxicated on a street in the Gaslamp Quarter (Gaslamp) of San
Diego. Under the guise of helping B.F. to get home, they took her to Ndandu's nearby
apartment building parking garage where he raped her while Phelps acted as a lookout.
The jury also found Phelps guilty of sexual battery. (§ 243, subd. (e)(1).) The court
sentenced Ndandu to an aggregate term of 10 years. The court sentenced Phelps to three
years and 365 days in county jail for sexual battery, to be served concurrently.
Ndandu and Phelps contend on appeal the trial court erred by (1) failing to sua
sponte instruct the jury regarding attempted forcible rape as a lesser included offense to
forcible rape and (2) admitting evidence of a prior uncharged sexual offense by Ndandu
in another state, which they contend violated their due process rights. Finding no merit in
these contentions, we affirm.