Opinion
E050116 Super.Ct.No. RIF151883
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. STEPHAN RYAN GRAY, Defendant and Appellant.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Stephan Ryan Gray guilty of one count of forcible rape (Pen. Code, § 261, subd. (a)(2)). After the trial court denied his motion for a new trial and request for probation, defendant was sentenced to the low term of three years in state prison. On appeal, defendant contends (1) the prosecutor committed misconduct during examination of witnesses, and (2) the sentence constitutes cruel and unusual punishment in violation of the federal and state Constitutions. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
Defendant and Jane Doe had been dating for about six years and had one child together. During that time, they would fight, and sometimes the fights would become physical. They also lived together on and off. In the summer of 2009, Jane went to school in the mornings and worked at night.
On July 1, 2009, about 11:00 p.m., Jane arrived at the home she shared with defendant and his family. As Jane parked her car, defendant, who was very inebriated, approached her and began yelling at her to drive him to a Wal-Mart store to buy a birthday present for his sister. Jane refused and walked into the house. Defendant repeatedly asked Jane why she did not love him "anymore." Once inside the house, defendant began kissing Jane, but she adamantly and repeatedly refused his advances and walked into her bedroom. Defendant followed Jane, "wondering" why she was ignoring him. Believing that she had cheated on him, defendant punched Jane's cellular telephone and left the bedroom.
About 1:00 a.m., defendant returned to the bedroom with some alcohol and began yelling at Jane. He was belligerent because he believed that Jane had cheated on him. He exclaimed numerous times that he wanted sex, and if Jane was not going to consent, he would "take it." Defendant thereafter forcibly raped Jane while their child slept in the same bedroom.
Jane attempted to push defendant off of her and was crying and pleading with him to stop. Defendant choked Jane with both hands to pin her down on the bed. He also threw Jane on the floor, grabbed her hair, and slammed her head onto the floor. When defendant saw Jane bawling on the floor in a fetal position, he apologized, said that he did not want to hurt her, and asked her to go back to the bed. Realizing that defendant would continue the rape once she was on the bed, Jane refused. Defendant then grabbed Jane, flipped her over so that she was on her hands and knees, and began raping her in that position. At one point, Jane attempted to masturbate defendant so the incident would cease. However, when he did not ejaculate, defendant pinned Jane down and began to rape her again until he ejaculated inside her. The incident lasted from 1:00 a.m. until 5:00 a.m. Jane did not scream for help because she did not want to wake up her child. She also knew that defendant's family would not come to her aid.
When Jane told defendant that she hated him for what he was doing to her, he replied "Good." Defendant also said "good" when Jane told him that he was hurting her. While defendant was raping Jane, he bit her in the nose and slapped her in the face. Jane and defendant had never engaged in rough sex previously. Defendant had, however, physically assaulted Jane in the past from April 2009 to July 2009 on numerous occasions, generally during a drunken rage.
The following day, Jane's body was "really, really" sore. She packed up her and her son's belongings and attempted to leave with her son. However, defendant awoke, grabbed the belongings from Jane's car, and threw them all over the driveway. He also took Jane's car keys from the ignition and ripped her shirt. Jane eventually called the police. Police officers arrived within a few moments and arrested defendant.
After informing the officers of the incident, Jane was taken to a hospital where a sexual assault examination was performed. She informed the examining nurse that defendant had raped her; digitally penetrated her; orally copulated her; physically assaulted her; and bit her nose, lip, and cheek. Jane had bruising on her legs, thighs, and arms; handprints and scratches on her neck; a bite mark on her nose; tenderness on her lower lip; and redness on her left cheek. In addition, Jane had tenderness and abrasions in the vagina and surrounding areas. The sexual assault nurse concluded that Jane's injuries were consistent with Jane's account of the incident.
Jane denied that she had sent text messages to defendant after the rape telling him that she still loved him. She noted that defendant knew how to send fake text messages. Jane acknowledged that she bruised easily.
Defendant waived his constitutional rights and spoke to the police. He acknowledged having sex with Jane on the day of the incident but claimed it was "breakup sex." He admitted that he was upset with Jane and that he had continued to have sex with her for about five minutes after she told him to stop. He further admitted biting Jane's lips during sex and noted that Jane did not like rough sex. He also admitted to trying to stop Jane from leaving the residence the following day by grabbing Jane's belongings, ripping her shirt, and taking the car keys.
A taped-recorded video of defendant's interview with the police was played for the jury at the time of trial.
Defendant's defense was that the sexual intercourse was consensual. His mother testified on his behalf. In relevant part, she testified that, although Jane and defendant's relationship was "rocky," she did not see defendant physically abuse Jane between April and July 2009. She did acknowledge, however, that a week before the incident she saw defendant attempt to hit Jane's car with a baseball bat when Jane wanted to leave. She claimed that, although defendant was not physically abusive toward Jane, even when he drank alcohol, Jane would often become physically violent with defendant. She noted that Jane frequently had bruises from "bumping into tables."
Defendant's mother further explained that she had seen Jane at least 20 times since defendant was arrested and that Jane had spent "at least two" nights with defendant. She also noted that Jane had called and texted her about wanting more children with defendant and that Jane had gone out with defendant at least four or five times since he was arrested. She stated that defendant had shown her text messages from Jane indicating that Jane loved defendant and desired more children with him. Defendant's mother, however, admitted that she was aware defendant had sent fake text messages before from his iPod.
Defendant's 15-year-old sister also testified on his behalf. Her testimony was essentially the same as that of defendant's mother. They both claimed that they would not lie to protect defendant.
The defense also called the responding officer of a November 2007 domestic disturbance call between defendant and Jane. The officer testified that when he arrived at defendant and Jane's residence, he saw that the left side of defendant's face was very red. Jane had denied hitting defendant and informed the officer that defendant had thrown a glass pumpkin through the sliding glass door.
II
DISCUSSION
A. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct throughout the trial, resulting in "irreversible prejudice" and denial of a fair trial under both the state and federal Constitutions. (Capitalization omitted.) We disagree.
Prior to the examination of witnesses and later prior to closing arguments, the trial court instructed the jury, in pertinent part, as follows: "You must decide what the facts are in this case. You must use only the evidence that is presented in the courtroom. Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I tell you to consider as evidence. [¶] . . . [¶] Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys will discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses' answers are evidence, along with exhibits and other things I may tell you about. The attorneys' questions are significant only if they help you understand the witnesses' answers. Do not assume that something is true just because one of the attorneys asks a question that suggest it is true. [¶] During the trial, the attorneys may object to questions asked of a witness. I will rule on the objections according to the law. If I sustain an objection, the witness will not be permitted to answer, and you must ignore the question. If the witness does not answer, do not guess what the answer might have been or why I ruled as I did. If I order testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose."
During the prosecutor's direct examination of Jane, the prosecutor asked her why she had left the state of Georgia, where she had been living with defendant, in January 2009. Jane replied, "He wasn't working. I was working making $80 a week . . . ." Defense counsel immediately objected on relevance grounds and requested to strike the testimony. The court sustained the objection and ordered the jury to disregard the testimony.
Later, the prosecutor asked Jane, "So just so we're clear, you go to school during the day and work at night, and the defendant doesn't work?" Jane responded, "Yes." Defense counsel again objected on relevancy ground. The court sustained the objection and admonished the jury that "whether you think the defendant should do more working or whatever you think, that maybe he ought to go to school in the morning and work at night too, all that work ethic stuff, you're to pay no attention to." The court further informed the jury, "The question is whether a forcible rape occurred in this case, and that's what matters. It's not a morality play as between whether one person is a harder worker than the other. [¶] You all understand that? You nod your head if you do."
The court thereafter informed the prosecutor, "You're entitled to lay a background for your story -- by story, you're entitled to lay a background for your case. That's a better way of saying it." After the prosecutor responded, "Okay," the court stated, "And I'm not upset at you, but there's a point that you've hit several times, apparently she's a worker bee. And I respect that. But it's got nothing to do with whether this particular crime occurred. Go ahead."
At the end of the prosecutor's examination of Jane, the prosecutor asked Jane why she did not want defendant to have custody of their son. Jane replied, "He doesn't work. He hasn't worked in almost two —" Defense counsel objected on relevance grounds. The court sustained the objection and ordered "the part about not working" stricken.
During cross-examination of Jane, defendant's counsel elicited testimony that defendant did not have a job and that Jane was going to school during the day and working at night. Defendant's trial counsel later elicited testimony from defendant's mother that defendant did not work, and despite that fact, defendant's mother or sister took care of the baby. On cross-examination, the prosecutor asked defendant's mother, "The defendant would just sit home all day?" Defense counsel immediately objected on relevance grounds. The court sustained the objection.
During rebuttal argument, the prosecutor stated, "[Jane Doe] wasn't scared of [defendant], that's true. She wasn't scared of him until July 2nd, 2009, until he went too far, you see, because she could overlook his drunken rages, she could look over the fact that he was lazy, that he didn't work, that he didn't financially contribute to his own son." Defense counsel objected on the basis of "improper offering of evidence." The court sustained the objection, stating "And I'll say again, the defendant's apparent unemployment might have some relevance to something, but you're not to convict him based on the fact that you think he should be working." The prosecutor continued, "By no means am I saying that you should convict him because he is not working. I mean, let's not put words in my mouth, here. I never once said, Convict this guy because he doesn't work, okay? There's a lot of guys that don't work." Defendant counsel thereafter objected to the above comments by the prosecutor as "prejudicial." The court overruled the objection.
Defendant complains that the prosecutor committed prejudicial misconduct when he repeatedly elicited testimony concerning defendant's lack of employment, failure to attend school, and laziness.
A prosecutor's conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) A prosecutor's comments are misconduct under the United States Constitution "when it infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that his right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.) "To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and, unless an admonition would not have cured the harm, ask the trial court to admonish the jury to disregard the prosecutor's improper remarks or conduct. [Citation.]" (People v. Martinez (2010) 47 Cal.4th 911, 956, italics added.)
We do not find that defendant waived this issue. Although defendant did not specifically object based on prosecutorial misconduct, the trial court either struck or informed the jury to disregard the testimony concerning defendant's employment when it sustained defense counsel's relevancy objections. As such, we need not address defendant's alternative ineffective assistance of counsel claim.
Assuming, without deciding, the prosecutor's conduct amounted to misconduct, we would not find it reversible. "Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such "'unfairness as to make the resulting conviction a denial of due process."' [Citation.] By contrast, our state law requires reversal when a prosecutor uses 'deceptive or reprehensible methods to persuade either the court or the jury' [citation] and "'it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct"' [citation]." (People v. Davis (2009) 46 Cal.4th 539, 612.)
We cannot conclude the prosecutor's conduct in eliciting testimony concerning defendant's "deadbeat" status so infected the trial as to require reversal. In each complained-of instance, the trial court sustained defense counsel's objection, struck the testimony from the record, and admonished the jury to disregard it. The court also instructed the jury before examination of witnesses and again prior to closing argument that statements, arguments, and questions of the attorneys are not evidence and to disregard stricken testimony. We presume the jurors followed the instructions and did not base their decision on stricken testimony or statements by trial counsel. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
Moreover, contrary to defendant's passionate plea, the misconduct was relatively benign in terms of its likely impact on the jury's verdict. Even considered cumulatively, the effect of any misconduct here merely gave a slight additional emphasis to the obvious disparity between the strength of the prosecution's case and the weakness of the defense case. (See, e.g., People v. Medina (1995) 11 Cal.4th 694, 757, 759-761 [prosecutor's improper vouching for witnesses and his appeal to passions of the jury were misconduct but were not prejudicial because none of the misconduct was serious enough, even in the aggregate, to prejudice defendant].) The case against defendant was overwhelming. Jane's testimony was corroborated by the physical evidence as well as defendant's own admission that he continued to have sex with Jane despite her telling him to stop and her attempts to push him away. The decision whether Jane was raped was not influenced by the prosecutor's conduct in eliciting testimony that defendant did not work or go to school.
In sum, even if we were to assume the prosecutor's questions and rebuttal argument were improper, we would conclude there is no reasonable possibility that defendant was prejudiced by the prosecutor's questions and comments, which, though sometimes strongly worded, were not evidence, and the jury was so instructed. When defendant did object to a question, the objection was sustained and an admonition was given to the jury, and any possible misconduct was therefore harmless.
B. Cruel and Unusual Punishment
Defendant next contends that his mandatory three-year sentence for forcible rape constitutes cruel and unusual punishment in violation of the state and federal Constitutions. Specifically, he claims that because he was 22 years old at the time of the offense, had no criminal record, and had been in a cohabitating relationship with the victim for six years, his sentence "shocks the conscience and offends fundamental notions of human dignity." We reject this contention.
The Eighth Amendment "prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." (Rummel v. Estelle (1980) 445 U.S. 263, 271 [100 S.Ct. 1133, 63 L.Ed.2d 382] (Rummel).)But "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." (Id. at p. 272.)
"A punishment may violate the California Constitution . . . if 'it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) The court, in applying this standard, examines the offense and the offender, and it compares the punishment with the penalties for other California offenses and crimes in other jurisdictions. (Cartwright, at p. 1136; Lynch, at pp. 425-427.)
1. California Constitution
Defendant claims that the imposition of a three-year sentence for forcible rape is cruel and unusual punishment when viewed in context to his personal characteristics, lack of prior criminal record, and the circumstances of the crime. However, defendant fails to understand that the trial court had no choice but to impose a prison sentence. Penal Code section 1203.065 provides that persons convicted of certain sex offenses are ineligible for probation. Penal Code section 1203.065, subdivision (a) prohibits the granting of probation to persons convicted of forcible rape in violation of Penal Code section 261, subdivision (a)(2). Indeed, the trial court imposed the low term of three years due to defendant's personal characteristics, lack of a prior criminal record, and the circumstances of the crime, rather than imposing the middle term of six years or the upper term of eight years. (Pen. Code, § 264, subd. (a).)
We note a trial court is not statutorily precluded from granting probation to a person convicted of raping a spouse pursuant to Penal Code section 262. (Pen. Code, § 262, subd. (d).)
California sentencing statutes "have long withstood constitutional challenge." (People v. Cartwright, supra, 39 Cal.App.4th at p. 1137.) "Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
Moreover, defendant's sentence is not disproportionate when compared to other crimes that have sentences that are substantial or even greater than his. (See People v. Crooks (1997) 55 Cal.App.4th 797, 808 [comparing penalty for burglary with intent to commit rape to penalties for kidnapping for ransom (Pen. Code, § 209, subd. (a)) and train wrecking, which provide for life without the possibility of parole (Pen. Code, § 218)].) Appellate courts have also upheld the constitutionality of mandatory sentences ranging from 25 years to life to life without the possibility of parole for offenses that do not result in death. (In re Maston (1973) 33 Cal.App.3d 559, 565 [life without the possibility of parole for aggravated kidnapping where the victim was injured but not killed is not cruel and unusual punishment]; Crooks, at p. 808 [25-year-to-life sentence for aggravated rape, with no prior felonies and no great bodily injury, was not disproportionate to other serious crimes]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1282 [25-year-to-life sentence under Penal Code section 667.61 for one forcible rape during a burglary, without use of a weapon and with no prior felonies, was not cruel and unusual punishment].)
Additionally, other jurisdictions have upheld sentences equal to or greater than defendant's term for crimes less serious than forcible rape. (People v. Cisneros (Colo.1993) 855 P.2d 822, 830 [life without the possibility of parole for 40 years not cruel and unusual punishment for possession and sale of drugs with priors of sales of narcotics, menacing with a knife, and violation of bail conditions]; Edwards v. Butler (5th Cir.1989) 882 F.2d 160, 167 [sentence of life without the possibility of parole for one aggravated rape does not violate Eighth Amendment]; Land v. Commonwealth (Ky.1999) 986 S.W.2d 440, 441 [life sentence without possibility of parole for rape not cruel and unusual]; Gibson v. State (Fla.1998) 721 So.2d 363, 369-370 [mandatory life sentence without possibility of parole for sexual battery of minor where defendant had no prior record was not cruel or unusual]; State v. Foley (La.1984) 456 So.2d 979, 984 [life sentence without possibility of parole for juvenile defendant convicted of aggravated rape is constitutional]; State v. Green (N.C.1998) 502 S.E.2d 819834 [mandatory life sentence for 13 year old defendant for sex offense not cruel and unusual punishment].)
Even if California statutes impose the longest sentence in the nation for the offense of forcible rape that does not mean that defendant's punishment is cruel and unusual. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) California is not required to conform its Penal Code to either the majority rule or "'the least common denominator of penalties nationwide.'" (Ibid.)
Based on the totality of circumstances here, we are persuaded that the extreme seriousness associated with the offense negates defendant's claim of cruel and unusual punishment. Defendant sexually attacked his girlfriend and the mother of his child for over a three-hour period while their child slept in the same room.
We conclude defendant's sentence is not so disproportionate "'as to shock the conscience and offend fundamental notions of human dignity.' [Citation.]" (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.)
2. Federal Constitution
Defendant fares no better under the federal standard. The hurdles defendant must surmount to demonstrate cruel and unusual punishment under the federal Constitution are, if anything, higher than under the state Constitution. (See generally People v. Cooper (1996) 43 Cal.App.4th 815, 819-824, and cases cited.) Strict proportionality between crime and punishment is not required. "'Rather, [the Eighth Amendment] forbids only extreme sentences that are "grossly disproportionate" to the crime.'" (People v. Cartwright, supra, 39 Cal.App.4th at p. 1135; see also Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [111 S.Ct. 2680, 115 L.Ed.2d 836] (Harmelin).)
In Rummel, supra, 445 U.S. 263, the United State Supreme Court rejected an Eighth Amendment challenge to a life sentence based on Rummel's conviction of credit card fraud of $80, passing a $28.36 forged check, and obtaining $120.75 by false pretenses. (Rummel, at pp. 268-286.) Additionally, in Harmelin, supra, 501 U.S. 957, the high court ruled that a mandatory sentence of life without the possibility of parole for possession of 672 grams of cocaine did not violate the Eighth Amendment. (Harmelin, at pp. 951, 995.) By contrast, what defendant did was far worse than all the crimes committed by Rummel and Harmelin combined.
In addition, the United States Supreme Court has upheld statutory schemes that result in life imprisonment for recidivists upon a third conviction for a nonviolent felony in the face of challenges that such sentences violate the federal constitutional prohibition against cruel and unusual punishment. (See Ewing v. California (2003) 538 U.S. 11, 18, 30-31 [123 S.Ct. 1179, 155 L.Ed.2d 108] [25-year-to-life sentence under three strikes law for theft of three golf clubs worth $399 apiece]; Lockyer v. Andrade (2003) 538 U.S. 63 [123 S.Ct. 1166, 155 L.Ed.2d 144] [two consecutive 25-year-to-life terms for two separate thefts of less than $100 worth of videotapes].)
The protection afforded by the Eighth Amendment is narrow. It applies only in the "'exceedingly rare'" and "'extreme'" case. (Ewing v. California, supra, 538 U.S. at p. 21.) We are not convinced this is such a case. Despite defendant's protestations to the contrary, defendant's crime is noteworthy. He took advantage of a position of trust to sexually assault his girlfriend for hours while their child slept nearby. He had sexual intercourse with the victim on the bed and on the floor of their bedroom despite her repeated pleas for him to stop. Defendant's sexual conduct against a vulnerable victim fully supports the minimum three-year sentence that was imposed. Defendant cites no persuasive authority to support his claim that this is one of those rare cases in which a sentence is so grossly disproportionate to the gravity of the offense that it violates the Eighth Amendment's proscription against cruel and unusual punishment.
Accordingly, we conclude this is not the exceedingly rare and extreme case that violates the federal Constitution.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.