Filed 9/1/20 P. v. Olobayo-Aisony CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B300620
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA142640)
v.
ADEKUNLE OLOBAYO-AISONY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Yvonne T. Sanchez, Judge. Affirmed.
Maxine Weksler, 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, Assistant
Attorney General, Stephanie C. Brenan and Nikhil Cooper,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
A jury convicted defendant and appellant Adekunle
Olobayo-Aisony of false imprisonment by violence (Pen. Code,
§ 236; count 2)1 and dissuading a witness from reporting a crime
(§ 136.1, subd. (b)(1); count 4).2 (People v. Olobayo-Aisony, supra,
B284951, at p. 2.) After waiving his right to trial on the prior
conviction allegations, defendant admitted a prior serious felony,
a 2002 forcible rape (§ 261), for purposes of section 667,
subdivision (a)(1), and the “Three Strikes” Law. The trial court
imposed the two-year middle term for count 4, doubled pursuant
to the Three Strikes law, plus five years for the prior serious
felony conviction, and stayed the sentence on count 2 (§ 654).
(People v. Olobayo-Aisony, supra, B284951, at p. 2.) Defendant
appealed his judgment of conviction, and we affirmed. (Id. at
p. 3.)
Defendant filed a petition for review in the California
Supreme Court. On December 12, 2018, the Supreme Court
granted defendant’s petition for review and transferred the
matter back to us “with directions to vacate [our] decision and
reconsider the cause in light of Senate Bill No. 1393 (Stats. 2018,
ch. 1013).” (People v. Olobayo-Aisony (Dec. 12, 2018, S251474).)
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Defendant had also been charged with criminal threats,
misdemeanor battery, assault with intent to commit a felony, and
attempted forcible rape. The People dismissed the misdemeanor
battery count before the case was submitted to the jury, and the
jury acquitted defendant of the remaining counts. (People v.
Olobayo-Aisony (Jan. 29, 2019, B284951) [nonpub. opn.],
p. 2, fn. 2.)
2
In accordance with the Supreme Court’s directive, on
January 29, 2019, we vacated our original opinion and issued a
new opinion, affirming the judgment of conviction, but remanding
the matter to the trial court for resentencing, to give the trial
court an opportunity to exercise its discretion to strike the
enhancement imposed pursuant to section 667, subdivision (a)(1).
(People v. Olobayo-Aisony, supra, B284951, at p. 3.)
On June 7, 2019, defendant moved to strike the five-year
enhancement for the prior serious felony. The trial court denied
defendant’s motion and imposed the five-year prior serious felony
enhancement.
Defendant timely appealed. He argues that the trial court
abused its discretion by failing to strike the section 667,
subdivision (a), enhancement.
We affirm.
FACTUAL BACKGROUND
“Prosecution’s Case
“A. Prior uncharged act involving Tiana W. (Tiana)
“On Tiana’s 18th birthday in May 2002, she met with
defendant, who she had recently met either on the bus or coming
home from the bus. After he told her that he wanted to give her a
birthday gift, she agreed to meet him later that day. That
evening, she and defendant spent time together. They went
underneath a bridge in a middle school to hang out.
“Defendant began making sexual advances, which Tiana
rebuked. Despite her reaction, defendant continued. He told her
that no one would hear her if she screamed because they were in
a secluded area. Defendant attempted to have sex with her. As
he tried to pull her clothes down, Tiana pulled them back up.
She ‘clench[ed]’ her legs. After being unable to have sex with her
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from a standing position, defendant forced Tiana to the ground
and had sex with her. At this point, Tiana had ‘shut down.’
When defendant finished, he told Tiana not to tell anyone. He
promised to give her money. Tiana, however, told her aunt and
cousin about the assault when she arrived home. Her cousin
called the police.3
“B. Prior uncharged act involving Ashlee B. (Ashlee)
“In 2002, Ashlee was a student at the University of
Southern California. She worked in the student affairs office.
One day, defendant saw Ashlee walking to work and approached
her. He said that he was on his way to the track office on
campus. He asked Ashlee to meet him later that day. After
meeting again on campus, defendant suggested that they do
something off campus. Defendant told her that he would give her
money or buy her things. Although she had some ‘reservations’
about meeting with him, Ashlee agreed to go shopping with
defendant off campus. At some point while shopping, defendant
asked if she would rather have money or clothes; she said that
she wanted money.
“Ashlee then drove defendant to a corner where he claimed
that there was an ATM. She did not see the machine. Defendant
got out of the vehicle and returned very quickly. The two then
went to a Starbucks. At some point, Ashlee decided that she
needed to take defendant home. While driving, he told her to pull
the car over near a Laundromat. There were no cars in the
parking lot adjacent to the Laundromat. Ashlee parked under a
street light.
3 Defendant was later charged with and convicted of raping
Tiana. This evidence was admitted pursuant to Evidence Code
section 1108.
4
“Ashlee asked defendant if his friend was going to pick him
up. Defendant then touched her leg and leaned towards her. She
told defendant to back up, and he did. Ashlee made a comment
about feeling uncomfortable because the street light above the car
was flickering. Defendant asked her to move the car to a
different spot, and she did. This spot was darker than the first.
“When Ashlee turned the car off, defendant immediately
grabbed the keys. Although she was nervous, she said, ‘“Oh stop.
You’re being silly . . . . Stop playing around.’ She wanted to run
away, but she did not because she believed that defendant would
catch her since he was on the track team. Defendant asked
Ashlee if she knew what “‘wasting someone’” meant. She
understood it to sound like violence, and she was afraid. He then
told her, “‘you’re not going anywhere tonight.’” Unable to think of
anything to do to get out of the situation, Ashlee prayed.
Defendant told her that nobody was in the area to hear her
scream or help her if she ran. Suddenly, police arrived with their
lights flashing. Ashlee grabbed the keys and asked the police for
help.4
“C. Charged act involving Kenyatta T. (Kenyatta)
“Kenyatta began dating defendant in July 2016,5 but the
two had a falling out when he missed her birthday in early
August. They agreed to go separate ways.
4 This evidence was admitted under Evidence Code section
1108. Defendant was not convicted for the incident with Ashlee.
However, he was convicted of assault with intent to commit rape
of an unknown victim in that same trial.
5 Unless otherwise noted, all dates refer to 2016.
5
“Despite the falling out, Kenyatta and defendant exchanged
text messages until August 21, the date of the incident. Although
she generally ignored defendant’s phone calls, on August 20,
Kenyatta answered a call and agreed to meet defendant at a
restaurant the following day. They had not seen each other since
July 29. Defendant said that he wanted to give her a birthday
present. Because defendant lived out of town, Kenyatta told him
that if he wanted to see her, he needed a hotel room because he
was not invited to her house.
“Shortly after arriving at the restaurant, Kenyatta and
defendant began to argue. Kenyatta said, ‘I’m done,’ and they
both left the restaurant. After leaving defendant told Kenyatta
that he wanted to give her the present. She told him to put it in
her car, but he said that it was at his hotel. She agreed to go to
the hotel to receive the gift.
“Kenyatta met defendant at the hotel room. At some point,
he pulled a dress and a bracelet out of a bag for her. She thanked
him. He then pulled lubricant, a sex toy, and condoms from the
bag. Kenyatta told defendant that she had to leave. She grabbed
her purse and shoes as she was leaving but not the gifts.
Defendant ran in front of the door, which was the only way out of
the room. He latched the door.
“Initially, defendant told Kenyatta to sit down, calm down,
and stop screaming. Then, Kenyatta tried to move him out of the
way. He grabbed her hand and throat and pushed her against
the wall. She screamed ‘at the top of [her] lungs.’ Defendant told
her to shut up, grabbed her shoulder, and pushed her into a chair
by the door. He remained in front of the door.
“Kenyatta asked defendant what he intended to do. He
replied, ‘I want my money’s worth.’ After Kenyatta asked what
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he meant by that, defendant explained that he paid for the room.
She offered him $100, but defendant declined the money. He told
Kenyatta that she was not leaving until they had sex. Kenyatta
told him that she was not going to have sex with him. She then
asked if defendant intended to rape her, and he replied, ‘If I have
to.’
“They remained in the same positions—defendant by the
door and Kenyatta in the chair by the door—for about four hours.
Some of that time was spent in silence, while at other times,
defendant called Kenyatta names. Kenyatta tried to leave four
different times, but she could not. The fourth time, defendant
threatened to hurt her if she continued trying to push him.
Kenyatta threatened to call 9-1-1. Defendant told her to ‘go
ahead,’ but when she got up to use the phone, he grabbed it and
threw it on the ground.
“At some point, Kenyatta was able to text message her
friend, Kristen Price (Price). One of the messages said, “‘Help
me,’” and included a partial address of the hotel. Price found
these text messages to be ‘a bit alarming.’ She drove to the
location of the partial address, calling police on the way, and met
police at the hotel. From the lobby, Price continued texting
Kenyatta. At around 7:00 p.m., police arrived at the hotel room
door. Shortly thereafter, Kenyatta and defendant came out.
“Defense case
“Defendant testified on his own behalf. He met Kenyatta
at a casino on July 16. At the time, he was on parole for his
conviction for raping Tiana. Kenyatta became upset with
defendant after he missed her birthday. Still, he saw Kenyatta
several times between July 29 and August 21.
7
“On August 20, Kenyatta asked defendant to get a hotel
room for her birthday. On August 21, they met at Lucille’s
Restaurant for lunch. During lunch, Kenyatta again asked
defendant to get a hotel room, so defendant searched for one on
his phone. After booking the hotel, they drove to it separately.
Defendant arrived 15 minutes before Kenyatta and checked in.
When Kenyatta arrived, defendant gave her a room key and told
her that he would be right back. He went to his car to get the
gift, which was in a bag. When Kenyatta saw the bag, but before
she saw what was inside it, she became excited and the two had
sex.
“Sometime after finishing, the two began getting intimate
again. Defendant took a sex toy and lubricant out of the bag. He
also showed her a dress and bracelet that he bought for her.
Kenyatta, appearing happy, told defendant that he must be
‘ready for fun’ and began using the items. Suddenly, Kenyatta
received a phone call from another man. After the call, she told
defendant that she had to leave. As she was leaving, she asked
about money that he had promised her.6 At this point, Kenyatta
did not have the gift bag with her. Defendant told her that he
would give her money some other time. Kenyatta responded,
‘You think I just did all this for you for nothing?’ Defendant
believed that she was referring to sex. He asked her if she was a
prostitute, which angered her.
“Kenyatta turned back into the room and grabbed the gift
bag, which also contained some of defendant’s belongings. When
defendant asked her why she was taking some of his things,
6 Defendant had told Kenyatta about money that he had
recently won from the casino, and he offered to give her some of
the winnings to pay for a tune-up for her car.
8
Kenyatta responded, ‘I will show you what prostitutes do.’
Defendant jumped between her and the door. Kenyatta tried to
physically move him and scratch him, but he maintained his
position in front of the door. At one point, defendant pushed her
away, but he did not choke her. He told Kenyatta that she could
leave if she left his stuff.
“Kenyatta sat in a chair looking at defendant. The two
were silent. After some time, they began to argue. Eventually,
police arrived. Kenyatta dropped the bag.
“Los Angeles County Sheriff’s Deputy Pasquale
Mastantuono responded to the incident. He interviewed
Kenyatta at the hotel. At that time, she did not say that
defendant told her that he would rape her if she refused to have
sex with him. Deputy Mastantuono did not see any injuries on
Kenyatta and she did not complain of pain. However, she did
appear to be in shock. Kenyatta said that defendant had asked
her for sex, and when she tried to leave, he blocked her path and
put his hand on her throat.
“Leneva Cobb, defendant’s ex-girlfriend and cohabitant at
the time of the incident, retrieved a bag from the police station
after defendant’s arrest. She gave the bag to a private
investigator, who inventoried it. The bag contained defendant’s
wallet, identification, men’s and women’s clothing, an A-N-G-L-E
bag, receipts, spilled lubricant, a book titled ‘Dating for
Dummies,’ two bottles of cologne, a silver sex toy, an empty bottle
of lubricant, a golden-colored bracelet, a work badge, an empty
condom wrapper, and a receipt from Lucille’s Restaurant.
“Rebuttal
“Deputy Mastantuono also interviewed defendant in the
hotel hallway. Defendant told Deputy Mastantuono that when
9
he and Kenyatta first went into the room, they kissed and took
off their clothes. At that point, defendant went to give her a
birthday gift, but she demanded money. Defendant refused to
give her money, which upset her. Kenyatta got dressed and was
going to leave, but defendant blocked the doorway because he did
not want their relationship to end. Defendant did not mention
that they had had consensual sex earlier in the day; he also did
not say anything about Kenyatta taking his belongings or
assaulting him.” (People v. Olobayo-Aisony, supra, B284951, at
pp. 3–10.)
DISCUSSION
Defendant argues that the trial court abused its discretion
by denying his motion to dismiss a five-year prior serious felony
enhancement under sections 667, subdivision (a), and 1385.
I. Procedural Background
Defendant admitted a prior 2002 conviction for the forcible
rape of Tiana, which forms the basis of the prior serious felony
enhancement.
In his motion, defendant asked that the trial court dismiss
this enhancement in the interest of justice, based upon factors
such as his ability to maintain employment after his 2012 release
to parole and his participation in prison education programs and
desire to resume gainful employment.
The People opposed defendant’s motion, noting the
seriousness of defendant’s crime against Kenyatta and the
striking similarities to bore to his prior crimes against Tiana and
Ashlee. The People also pointed out that defendant had
committed the crime against Kenyatta while on parole for his
crimes against Tiana and Ashlee.
10
After entertaining oral argument, the trial court denied
defendant’s motion, explaining: “[H]e was reconvicted of the
same charge he had just been released from prison on which is
the [section] 236. [¶] I do feel it’s appropriate to impose the five-
year prior. The motion to strike the five-year prior is denied.”
II. Relevant Law
In general, section 1385 has long permitted courts to
dismiss a sentencing enhancement in a criminal case “in
furtherance of justice.” (§ 1385; People v. Fuentes (2016) 1
Cal.5th 218, 224–225.) Before 2019, prior serious felony
enhancements under section 667, subdivision (a), were not
subject to dismissal and were mandatory when proved. But
Senate Bill No. 1393, effective January 1, 2019, amended sections
667, subdivision (a), and 1385, subdivision (b), “to allow a court to
exercise its discretion to strike or dismiss a prior serous felony
conviction for sentencing purposes.” (People v. Garcia (2018) 28
Cal.App.5th 961, 971.)
As the parties agree, we review a trial court’s decision not
to dismiss an enhancement for abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 371 (Carmony).) Under this
standard, the defendant bears the burden of showing that the
trial court’s sentencing decision was irrational and arbitrary. (Id.
at p. 376.) We are not free to substitute our judgment for that of
the trial court (id. at p. 377) or to assign a different weight to the
various factors informing a discretionary decision (People v.
Willover (2016) 248 Cal.App.4th 302, 323). “Where, as here, a
discretionary power is inherently or by express statute vested in
the trial judge, his or her exercise of that wide discretion must
not be disturbed on appeal except on a showing that the court
exercised its discretion in an arbitrary, capricious or patently
11
absurd manner that resulted in a manifest miscarriage of
justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)
In determining whether the trial court abused its
discretion, we are guided by case law interpreting the Three
Strikes law. We consider whether the trial court evaluated the
nature and circumstances of the defendant’s felonies (present and
prior) and the particulars of his background and character. (See,
e.g., People v. Williams (1998) 17 Cal.4th 148, 161.)
III. Analysis
Applying these legal principles, we readily conclude that
the trial court acted well within its discretion when it denied
defendant’s motion to dismiss the five-year enhancement.
Defendant’s crime against Kenyatta was serious. And, his
criminal history revealed that his conduct with Kenyatta was
part of a disturbing pattern. In 2002, with the promise of a
birthday gift, defendant lured Tiana to an isolated spot under a
bridge and raped her. Also in 2002, with the promise of money,
he lured Ashlee to an isolated parking lot; when she refused his
sexual advances, he threatened her. Defendant was on parole for
these crimes when he committed the violent crime against
Kenyatta.
Given the seriousness of his conduct with Kenyatta and
defendant’s recidivist behavior, the trial court’s decision not to
strike the prior serious felony enhancement was not “so irrational
or arbitrary that no reasonable person could agree with it.”
(Carmony, supra, 33 Cal.4th at p. 377; see also People v. Taylor
(2020) 43 Cal.App.5th 1102, 1113.)
Urging us to reverse, defendant speculates that the
sentencing judge, who was not the original trial judge, was
unfamiliar with the case and record. The appellate record shows
12
otherwise. The sentencing judge reviewed defendant’s motion,
which included the original sentencing memorandum, the
People’s opposition, and heard oral argument. There is no reason
to presume that the sentencing judge was too unfamiliar to
exercise appropriate discretion and then rule on defendant’s
motion. It follows that his attempt to characterize his crime as
mere “misguided attempts to calm Kenyatta down, to prevent her
leaving in anger, and to repair their relationship” is not well-
taken.
In addition, defendant asserts that his conviction for
violating section 136.1, subdivision (b), was not “sufficiently
‘serious’ to warrant imposition of the five[-]year sentence
enhancement.” Because defendant neglected to raise this claim
below, it is forfeited on appeal. (People v. Wall (2017) 3 Cal.5th
1048, 1075.) Regardless, we previously rejected this claim.
(People v. Olobayo-Aisony, supra, B284951, at p. 19 [noting that
all felony violations of section 136.1 are serious felonies and
rejecting defendant’s assertion that his conviction was not a
serious felony].)
Defendant further argues that because the jury acquitted
him of criminal threats, assault, and attempted forcible rape,
there is insufficient evidence that he used force when he falsely
imprisoned Kenyatta. We rejected this claim in defendant’s prior
appeal. (People v. Olobayo-Aisony, supra, B284951, at p. 22
[holding that defendant used a violent level of force to support
the jury’s finding of felony false imprisonment].)
Finally, defendant contends that public policy supports
reversal. He claims that imposition of the five-year enhancement
here contravenes the rationale behind the rule set forth in In re
Estrada (1965) 63 Cal.2d 740, 748: “[W]here the amendatory
13
statute mitigates punishment and there is no saving clause, the
rule is that the amendment will operate retroactively so that the
lighter punishment is imposed.” Aside from the fact that
defendant failed to raise this argument below, thereby forfeiting
it on appeal (People v. Wall, supra, 3 Cal.5th at p. 1075), this
argument fails on the merits. The purpose of the five-year
sentencing enhancement is “to deter habitual criminal activity
and to provide retributive punishment of persons who repeatedly
break the law by significantly enhancing their sentences for
subsequent convictions.” (People v. Lassiter (1988) 202
Cal.App.3d 352, 356.) In light of defendant’s violent crime
against Kenyatta and the facts that (1) he used a similar method
in his prior conviction, and (2) was on parole at the time he
committed the crime against Kenyatta, the trial court did not
abuse its discretion by declining defendant’s motion to strike the
five-year enhancement.
14
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________________, J.
ASHMANN-GERST
We concur:
______________________________, P. J.
LUI
______________________________, J.
HOFFSTADT
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