Opinion
E050709 Super.Ct.No. SWF027851
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. VICTOR ANTHONY HERNANDEZ, Defendant and Appellant.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William Wood and Barry Carlton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Graham Anderson Cribbs, Judge. Affirmed with directions.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William Wood and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Victor Hernandez, of spousal rape (Pen. Code, § 262) and forcible penetration with a foreign object (§ 289, subd. (a)(1)). He was sentenced to prison for three years and appeals, claiming the jury was improperly instructed and insufficient evidence supports the verdicts. We reject his contentions and affirm the judgment, while directing the trial court to correct errors in the abstract of judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
As occurs not infrequently in domestic violence situations, the victim, defendant's wife, suffered a bad case of buyer's remorse almost immediately following her report to police that on February 12, 2009, defendant had raped and digitally penetrated her against her will. By the time of trial, she had accepted defendant's apology and things between them, which had previously been not so good due to defendant fathering two children by his girlfriend, were "great." More facts will be disclosed as they are pertinent to the issues discussed.
ISSUES AND DISCUSSION
1. Jury Instruction
The victim testified that the morning of the crimes, she went into the bathroom to get ready for work. Defendant followed her there and tried to persuade her to reconcile and go to counseling. She was upset at defendant because he would not move out of the family home. She told him she did not have time to talk because she was in a hurry to go to work. She testified that defendant "wasn't taking that. He wasn't taking me seriously in a way . . . . [¶] . . . [¶] . . . I guess he thought, before I left, if we had sex that would mend things and make things better. [¶] . . . [¶] . . . He wanted to try and mend everything, and then he started hugging me and kissing me . . . ." She told defendant that she was in a rush for work, she did not have time for this and she needed to leave. Despite this defendant "still persisted. [¶] . . . [¶] . . . [H]e was kissing me and hugging me and trying to pull me closer to him and tried to take me to the bed." She was trying to pull away by putting her hands in front of herself and saying, "'I have to leave.'" She added that she was pushing him away while he "[p]ersisted. [¶] . . . [¶] He tried to have sex with me." When asked how this happened, she responded that defendant picked her up by her thighs and tried to put her on the bed, but she got up. She testified she was "somehow able to get away" then she returned to the bathroom to finish getting ready for work, but defendant "grabbed [her] again[,]" picked her up and put her down on the bathroom floor. He got on top of her and was "trying to have sex [while she] [¶] . . . [¶] . . . [was] trying to resist him" by trying to push him off, moving around on the floor and kicking him off with her legs a little bit. She testified that at the beginning she was telling him no. She added, "I was telling him, 'No,' that I didn't have time, and then I gave in, and it was consensual towards the end. [¶] . . . [¶] I gave in to being okay with having sex with him." She said she gave in because it was faster. When asked if she meant that it was faster to give in than to fight anymore, she said, "We wouldn't be fighting anymore, and it was just easier to go ahead and try to make things okay and make him think that everything was okay, and then leave." She gave conflicting accounts of whether she consented before defendant began having intercourse with her, or at some point after the intercourse began. However, she said that she expressed her consent only by stopping pushing on defendant, kicking him and telling him no. She also said that defendant penetrated her with his fingers prior to having intercourse with her. When asked how that happened, she said, "That is when he was trying to, I guess, stimulate me." However, she said that this happened while she was trying to kick defendant off of her as she lay on the bathroom floor. The following colloquy occurred between the victim and the prosecutor,
She initially testified that "once she gave in . . . [¶] [they] finished having sex." However, during questioning by defense counsel, the latter asked the victim "Were you fighting [defendant] while his penis was being inserted into your vagina, or were you just giving consent at that point in time? She responded, "I gave consent." She added that defendant did not stick his penis inside her before she gave consent that she could recall. However, she went on to testify as follows,
"Q [W]hat [did defendant] . . . apologiz[e] [for concerning] the sex?
"A That he didn't mean for it to go that far.
"Q When you say, 'He didn't mean for it to go that far,' you mean having sex with you without your consent?
"A He knew I was rushed for time, and I wasn't in the mood to have sex in the beginning.
"Q Did he force you to have sex in any way? [¶] . . . [¶]
"A He was being persuasive and trying to have sex with me, and towards the end everything was consensual."
Later, she reversed herself again during the following colloquy with defense counsel,
"Q . . . Did you give [defendant] any indication . . . that he didn't have permission or consent to have sex with you?
"A I had told him, 'Not right now. It's not the time.'
"Q [A]re you telling me that he didn't have your consent to have sex when he put his penis in your vagina?
"A Prior to us having sex, yes, and then I ended up being okay with it.
"Q So by the time you had sexual intercourse, it was consensual?
"A Yes." She took another reversal during redirect examination, as follows,
"Q . . . [Y]ou eventually consented to having sex with [defendant] . . . . Was there a point where you said, 'Okay, . . . go ahead'?
"A Towards the end.
"Q You said, 'Okay, . . . go ahead'?
"A In that way, yeah.
"Q What do you mean, 'in that way'? Did you just stop kicking him?
"A I stopped kicking him.
"Q And this is how you let him know that it was just okay?
"A Yes. [¶] . . . [¶]
"Q [A]t the end, you stopped [attempting to kick and push defendant off you], right?
"A Yes.
"Q But until then, you were trying to kick him away and push him away?
"A Yes." She said she never expressly told him to go ahead.
"Q [I]s this the first time that [defendant] has forced you to have sex with him? [¶] . . . [¶]
"A This time, it was different.
"Q . . . [I]s this the first time that he has forced you to have sex with him?
"A In the past . . . we have always had a falling out. [¶] . . . [¶]
"Q And he would force you to have sex?
"A There was one other time."
She later described this as the "one time prior when [defendant] forced [her] to have sex when [she] didn't want to . . . ." She added that the prior incident was different from the instant incident in that during the prior, she "just said, 'No,' and [she] wasn't fighting [defendant] off or pushing him away . . . ." She testified, as to the instant crimes, that she told the police what had happened because she thought she needed to do that to get defendant out of the family home. She added that she told the first officer she spoke to "everything that happened to [her] that day" and she told her the truth. According to the officer she spoke to, the victim said that after defendant threw her on the bed, where she kicked, pushed and told him to get off her, he forcibly removed her from the bed and threw her on the bathroom floor. The victim testified that she did not speak to defendant for at least two months after the incident and he apologized to her for it, first through her mother (because he could not speak to her due to the existence of a restraining order) and then in person. She told the nurse who conducted the sexual assault examination that she had bitten defendant to try to get him off of her.
Defendant did not testify at trial. His only statements about the incident were his denials that he had sex with the victim that morning—in fact, he claimed that they had not had sex for two months.
Defendant unsuccessfully requested that the jury be instructed, as to both offenses, that " . . . [D]efendant is not guilty . . . if he actually and reasonably believed that the [victim] consented to the [act]. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the [victim] consented. If the People have not met this burden, you must find the defendant not guilty." (Judicial Council of California Criminal Jury Instruction, CALCRIM No. 1000.) Defendant here asserts that the trial court's refusal to give this instruction requires reversal of both of his convictions. He concedes that such an instruction is appropriate only when substantial evidence supports it. (People v. Mentch (2008) 45 Cal.4th 274, 288.) That evidence must be evidence of ''equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not." (Bench Notes to CALCRIM No. 1000 (2006-2007), p. 833 citing People v. Williams (1992) 4 Cal.4th 354, 362 (Williams),italics added.) "A defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent." (People v. Dominguez (2006) 39 Cal.4th 1141, 1148, italics added (Dominguez).)Defendant agrees. Because we conclude that no evidence supported it as to either offense, we reject his contention.
As to forced digital penetration, there was no evidence that the victim did anything that would suggest to defendant that she was consenting. According to her, she was still struggling with defendant when he digitally penetrated her. This could not possibly be reasonably interpreted by defendant as a sign that she was consenting. The fact that, at some point, she guessed that he engaged in this act in an effort to stimulate her is meaningless. Therefore, the trial court correctly concluded that there was no evidence supporting this instruction as to the digital penetration charge.
As to the spousal rape, our conclusion is the same. Whether the victim, in her own mind, consented before defendant first penetrated her or at some point after he did so, the evidence of her actual consent is irrelevant to this instruction, which addresses situations in which the victim actually does not consent, but engages in behavior that would lead the defendant to reasonably believe the victim is consenting. (See Dominguez, supra, 39 Cal.4th at p. 1149.) To the extent the victim's testimony can be parsed to provide an evidentiary basis for this instruction, i.e., ignoring her claim that at the beginning of or sometime during the intercourse, she actually consented, she did not testify to any words she spoke or acts she committed that would have provided defendant a reasonable basis upon which to conclude that she was consenting. Her testimony that at some point she stopped telling defendant no and stopped pushing and kicking him cannot constitute such "equivocal behavior" because consent requires "positive cooperation" and not mere acquiescence (Williams, supra, 4 Cal.4th 354, 361), and the victim testified that all she was doing was acquiescing. Defendant did not testify and did not otherwise state that he had any belief that she was consenting or that she engaged in any acts that would lead him to believe she was. Therefore, there was no evidence to support this instruction as to spousal rape, and the trial court correctly so found.
Notably absent from defendant's contention in his opening brief is a reference to any evidence adduced at trial establishing equivocal conduct by the victim. Instead, defendant offers up only the facts that he and the victim had been married for some time, shared a marital bed, had had two children together and had engaged in consensual sexual relations for many years. Defendant cites no authority that this constitutes evidence of equivocal acts by the victim which would reasonably lead him to believe that she consented. Moreover, defendant's premise would be the demise of this crime, as these facts are true for most married couples.
Defendant also appears to claim that the instruction was appropriate as to spousal rape merely because there was evidence the victim had engaged in consensual sex with the defendant on a prior occasion. He relies on section 1127d, subdivision (a), which provides, in pertinent part, "In any criminal prosecution for the crime of rape . . . , the jury shall not be instructed that it may be inferred that a person who has previously consented to sexual intercourse with . . . the defendant would be therefore more likely to consent to sexual intercourse again. However, if evidence was received that the victim consented to and did engage in sexual intercourse with the defendant on one or more occasions prior to that charged against the defendant in this case, the jury shall be instructed that this evidence may be considered only as it relates to the question of whether . . . the defendant had a good faith reasonable belief that the victim consented to the act of sexual intercourse."
It is difficult to tell, as defendant merely quotes the Penal Code section after quoting the instructions he wanted given and provides no further analysis as to the application of the Penal Code section.
He misidentifies this as section 1127, subdivision (d).
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It is obvious that section 1127d does not apply to spousal rape. If it did, every defendant charged with this offense would be entitled to the instruction on good faith belief in consent, regardless of the evidence, because all husbands have had sex with their wives. This is ridiculous and flies in the face of that portion of the instruction on spousal rape given here which provides, "Evidence that the defendant and the [victim] were married is not enough by itself to constitute consent." It is also inconsistent with the requirement that the victim engage in equivocal conduct which would reasonably cause the defendant to believe she was consenting.
2. Insufficiency of the Evidence
Defendant here asserts that there was insufficient evidence that he inserted his fingers into the victim's vagina without her consent solely because she testified that she guessed that he did this to stimulate her. This is a meritless basis upon which to conclude that the evidence was insufficient. As to the rape, he merely calls our attention to the points he made regarding the previous issue which we have already addressed. Our conclusion that there was no evidence supporting a finding that defendant mistakenly believed that the victim consented to intercourse dooms his contention. The evidence, as outlined above, fully supports the verdict, regardless of the victim's "buyer's remorse."
DISPOSITION
The trial court is directed to amend the abstract of judgment to show that defendant was convicted by jury and not by plea, as the abstract currently states. Additionally, as both parties agree, the abstract should be amended to show that defendant was awarded credits under section 2933.1, and not section 4019, as the abstract currently states. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
RICHLI
J.
KING
J.