Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF058575 James S. Hawkins, Judge.
Joanna Rehm, 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, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant, Jatauna Howard, of rape in concert (Pen. Code, § 264.1) and sexual battery while the victim was being restrained (§ 243.4, subd. (a)). She was sentenced to prison and appeals, claiming there is insufficient evidence to support her conviction of rape in concert, jury instruction error occurred and the sentencing court abused its discretion in denying her motion for a new trial. We reject her contentions and affirm, while directing the trial court to correct an error in the abstract of judgment. The facts surrounding the crimes will be described in connection with defendant’s sufficiency of the evidence issue.
All further statutory references are to the Penal Code unless otherwise indicated.
Issues and Discussion
1. Sufficiency of the Evidence of Aiding and Abetting Rape in Concert
The petite victim attended high school with defendant and she was slightly acquainted with defendant’s large and muscular uncle, who was 15-20 years older than the victim. On May 17, 2007, the victim ran into the uncle at a bus stop and thereafter hung out with him and his girlfriend all day, using methamphetamine, which the uncle supplied, after the uncle asked her if she wanted to get high with him. The uncle shoplifted items, giving a watch and earrings to the victim. The victim testified that she did not flirt with the uncle that day, assuming that he was committed to his girlfriend.
Because during the crimes, defendant referred to this man as her uncle, and during argument to the jury, the prosecutor did as well (without objection from defense counsel), we will do the same for the sake of simplicity.
The following day, the uncle’s girlfriend left and he and the victim hung out at his mother’s house, consuming a bag of methamphetamine that had been delivered there. Neither made sexual advances towards the other. They went to the houses of a few of the uncle’s friends, then to a van parked next to the house occupied by defendant’s grandmother. Defendant lived in the van. The victim and defendant recognized each other from high school. All three used methamphetamine in the van-the uncle also consumed cocaine. The victim and the uncle left, visited more homes of the uncle’s friends and family members, then returned to defendant’s van. The three resumed using drugs.
When the drugs ran out, the victim attempted to leave, but the uncle stopped her, saying he was missing some methamphetamine. He asked the victim if she had it and she said she did not. He then asked her about the watch he had given her the day before, but she lied and denied having that, too. However, the victim became scared when the uncle asked her to empty her pockets and remove her shoes, so she admitted that she had the watch and gave it to him. He then asked her if she had any left-over drugs. She said she did not, but he did not believe her and he dumped the contents of her overnight bag on the van floor. He went through the contents of the bag as defendant watched. He said if he found anything, he would be disappointed and “we’d have to deal with whatever... he finds.” The victim was scared. She wanted to leave but did not try because the uncle was near the side door of the van.
The uncle told the defendant to take whatever of the victim’s possessions defendant wanted. He asked defendant if she wanted the victim’s shoes and earrings and the compact discs (CD’s) that had been in the overnight bag, because “everything was his now.” Defendant replied, “Oh, wow. I’m going through the CDs, I’m looking through them.” She took items from the uncle and put aside the ones she wanted to keep, which were the victim’s shoes, two CDs and, possibly, a pocket knife. The uncle had the victim’s cell phone, then defendant had it, and then it disappeared.
The pocket knife was later retrieved by police, but there was no evidence where it was discovered.
At the uncle’s command, the victim stood with her hands on her thighs and he held down her wrists so she couldn’t move. He had her sit on the floor with her legs out so he could check her pockets. He checked the cuffs of her pants and put his fingers in her mouth and hair to check them. Every time the victim moved too fast, he back-handed her in the face and she cried. He said he was going to do a strip search and the victim needed to remove her clothes, shoes and socks. He added that if the search revealed nothing, the victim could leave. Defendant was watching during this time. The uncle told the victim to remove her clothes and when she did not move fast enough, he back-handed her two more times. He pulled off her pants. The victim was naked and crying.
The uncle had the victim stand in the middle of the van and he searched her, including her butt cheeks. He hit her whenever she flinched or he thought something had fallen out of her. However, he found nothing. “They” told the victim that whatever defendant wanted out of the victim’s bag was theirs and the victim could take whatever was left. The victim began gathering up the remains, but the uncle had a change of heart. He said he needed to do something about it so the victim wouldn’t do it to him again. Then the uncle and defendant discussed beating the victim up. He told defendant to beat up the victim, but defendant did not move. He called someone on the phone who had previously beaten someone up for him, but this person refused his request. He again talked to the defendant.
Defendant told the victim to lie down. The victim complied out of fear. Defendant told the victim to “let her uncle hit it.” The victim feared for her life because “there was no way [she] could defend [herself] between either of them.” The uncle removed his pants and inserted his finger in the victim’s vagina. The victim later told the nurse who examined her that she was on the last days of her period. The victim told the uncle to stop, but he did not. Defendant was standing behind him, but over the victim, and she was watching. Defendant said it would be over soon. The uncle stopped, put his knees on the victim’s legs to hold them down and either he or defendant told the victim to spread her legs. The victim did not, so he spread them for her, while his hands were on her waist and hips. While he had intercourse with the victim and asked defendant if she wanted to join in, defendant, who had been standing behind him, moved to the victim’s side and stood over her. She pinned the victim’s arms down as the uncle had intercourse with the victim. Defendant said that it would be over soon. Defendant, who later revealed to police that her “sexual preference is females” told the victim that she thought the victim had been bisexual in high school. She put her mouth on the victim’s chest. Defendant removed her shirt and, while caressing the victim’s breasts, told the victim she wanted her to suck on defendant’s chest, as she was trying to ease the victim’s pain. The victim testified that defendant’s body was over the top part of hers “so [the victim] couldn’t get up....” Defendant asked the victim if she was bisexual, but the victim did not answer. The victim complied with defendant’s request because she was scared. She was still being raped at this time. The victim put her mouth on defendant’s breast and defendant asked the victim if she liked it. The victim cried. Both the victim and the uncle stopped and defendant asked the victim if she wanted anything from her. The victim said no. The uncle gave the victim a soda and told her to use it to clean herself up and defendant gave her a rag. The victim picked up her belongings that had not been confiscated by defendant and the uncle and asked for her cell phone but they claimed they did not know where it was. As the victim got out of the van, defendant said not to bring trouble back their way. Either defendant or the uncle gave the victim the house phone, which was in the yard, and the victim called her boyfriend to pick her up at a local fast food restaurant. Defendant told her where the restaurant was. She immediately told her boyfriend and his companion what had happened and they called the police. The victim testified that she did not want to have intercourse with the uncle and she denied telling defendant that she wanted defendant to suck her breasts or that she wanted to suck defendant’s breasts-in fact, she had said no while this was happening. She said that defendant was helping the uncle that night.
During cross-examination, the victim was asked if defendant held her hands on the victim’s arms while she was sucking on the victim’s breast and the victim replied, “I don’t really know that answer.”
On May 19, defendant was accosted by police near the van. She had the victim’s cell phone and CD wallet.
When questioned by police, defendant confirmed that the uncle had accused the victim of stealing his dope that night and had dumped the contents of her overnight bag on the floor of the van. After he found something and the victim surrendered the watch to him, he told her to remove her clothes so he could search her. When he removed her pants, he handed them to defendant and she, at his direction, searched the pocket and took the victim’s cell phone. The victim removed all her clothes, with the uncle roughly helping her. The victim seemed scared and defendant told the police she did not like what was happening. The uncle told the victim to lie down because he was still trying to search her. He told her to stop moving. She did not and talked to defendant, so he hit her in the face four to five times. He began rubbing her genitals and he inserted his middle finger in her vagina. Defendant told the police that the victim was scared “but enjoy[ed] it at the same time.” However, the victim told the uncle to stop. Defendant was a couple of feet away at this time. The uncle took off his pants and had intercourse with the victim while holding her legs. The victim seemed uncomfortable and cried like she was scared and wanted it to be over. Defendant told the victim that it would be okay-that the uncle would not hurt her. She caressed the victim’s face to try to make her feel more comfortable. She asked the victim if the victim wanted to suck on defendant’s breasts “to try and calm her down.” The victim said yes. Defendant pulled out her left breast and the victim sucked on it for 30 seconds. Defendant admitted that she liked this. Defendant asked the victim if the victim wanted defendant to suck her breasts. Defendant did and the victim seemed comfortable with this. Defendant said she feared that if she tried to tell the uncle to stop, he would do something to defendant. She did not like what happened. She said she was sorry for being there and not trying to stop it.
Defendant contends there is insufficient evidence to support her conviction of aiding and abetting rape in concert because there is no evidence she advised the uncle to rape the victim or “did anything that actually assisted him in the rape.” A careful review of the victim’s testimony proves otherwise. First, it was defendant’s van, not the uncle’s. Defendant watched while the uncle went through the items dumped out of the victim’s bag and she took whichever of those items she wanted, including the victim’s shoes, signaling to the victim that she was part of the crimes being committed against the victim. She continued to watch while the victim was being hit by the uncle, both when the victim was clothed and when she was naked, again, signaling her participation in the crimes the uncle was perpetrating on the victim. As a further indicator of her participation, she and the uncle discussed beating up the victim, even after the pair got what possessions they wanted from the victim. Although defendant did not do it, she stood by while the uncle tried to get someone else to. They then had another conversation and immediately afterward defendant, not the uncle, said the first thing to the victim to indicate that the victim was going to be raped, i.e., she told the victim to lie down and to “let her uncle hit it[, ]” meaning to have sex with the victim. From this, the jury could reasonably conclude that defendant, during that conversation with the uncle, agreed that he should rape the victim or she encouraged him to do so. Certainly, she was the messenger that delivered the news to the victim that the latter was about to be raped. Even if defendant had neither agreed with the uncle that he should rape the victim or encouraged him to do so during their conversation, she helped the uncle rape the victim by indicating to the victim that the rape was going to happen and defendant, who had already participated in the theft of the victim’s possessions and stood by while the uncle made the victim undress and hit her, would do nothing to stop it. Indeed, the victim testified that at that point, she felt powerless to resist as there was no way she could defend herself against either of them, signaling her belief that they were in it together and she would have to overcome both of them to avoid being raped. Defendant then stood over the victim while the uncle inserted his finger into her vagina and the victim told him to stop. Defendant’s only other act was directed at encouraging the victim to tolerate this, by saying that it would be over soon. While the uncle physically restrained the victim by putting his knees on her legs and his hands on her waist and hips, either he or defendant told the victim to spread her legs. In response to the uncle’s question to defendant whether she wanted to “join in” as he raped the victim, defendant moved from behind the uncle to the victim’s side, again, signaling to the victim that she was “in for a penny, in for a pound.” From her new position, defendant pinned the victim’s arms down as the uncle continued to rape the victim. Defendant again told the victim that it would be over soon. Defendant then, herself, performed a sexual act on the victim (“sucking her chest”) after indicating her belief that the victim is bisexual. This was followed by a second and third sexual act performed by defendant herself, i.e. caressing the victim’s breasts and having the victim suck her breasts, which defendant later admitted to police gave her pleasure and which the victim said she did because she was scared and which caused her to cry-all while the victim was still being raped. At this point, the victim felt trapped by defendant’s body. It was defendant who handed the victim the rag the victim used to clean the uncle’s ejaculation from her genitals, again signaling that they were in it together. It was also defendant who threatened the victim as the latter left the van. The jury was free to reject defendant’s claim to the police that the victim agreed to mutual breast sucking both because it was contradicted by the victim and because it was ridiculous-just as ridiculous as her claim that a crying 20-year-old girl on her period would enjoy having a much older man she barely knew stick his finger in her vagina after robbing her, forcing her to disrobe and hitting her several times in the face, all in the presence of another stranger. A more humiliating scene cannot be imagined.
Contrary to defendant’s assertion, the victim did not testify that this pinning down was done merely to facilitate defendant’s contact with the victim’s breasts or the victim’s contact with her breasts and logic, of course, suggests otherwise. (See fn. 4, ante, p. 6.) (This is why when discussing the sufficiency of the evidence, it’s almost always a bad idea to rely on the prosecutor’s version of the facts during argument to the jury, as defendant does here, rather than on the actual evidence. For example, the prosecutor argued to the jury that defendant put her mouth on the victim’s breast after the victim put her mouth on defendant’s breast which is what defendant told the police, however, the victim testified otherwise.) The victim’s testimony on this point is as follows,
Having discussed the foregoing facts upon which the jury could rely in concluding that defendant aided and abetted the rape in concert, there is no further need to discuss defendant’s assertion that evidence was not susceptible of an inference that she engaged in those acts with the intent of aiding the uncle’s rape of the victim.
2. Jury Instructions
a. Rape as a Lesser Included Offense of Rape in Concert
Defendant did not testify and the only evidence of her state of mind during the crimes are her statements to the police, which we have already summarized. The jury was instructed that in order to convict defendant of the charged rape in concert, defendant had to “voluntarily aid... and abet...” the uncle’s rape of the victim. Defendant here contends that the trial court had a sua sponte duty to instruct the jury on rape as a lesser included offense of rape in concert because there was sufficient evidence to warrant the jury’s conclusion that she aided and abetted the rape out of fear, rather than voluntarily.
However, the difference between rape in concert and rape, contrary to defendant’s assertion, is not the absence of volition on the part of the defendant, but, rather, the presence or absence of aiding and abetting by the defendant. Indeed, in People v. Lopez (1981) 116 Cal.App.3d 882, 887, Justice Gardner of this court commented concerning section 264.1, dealing with rape in concert, “[I]t is difficult to conceive of a factual situation in which mere aiding and abetting would not constitute acting in concert.” In People v. Calimee (1975) 49 Cal.App.3d 337, 341, Division One of this court held that where the evidence shows that the defendant aided and abetted the perpetrator, the term “acting in concert” is synonymous with “aiding and abetting.” (Accord, People v. Wheeler (1977) 71 Cal.App.3d 902, 906, 907 [Where defendant aids and abets rape, the element of acting in concert is present.] If, as defendant contends, she was acting out of fear rather than her own free will, how can she be guilty of aiding and abetting rape?
Defendant contends that rape is a lesser included offense of rape in concert because rape in concert requires that a rape occur. However, when, as here, the defendant’s liability for rape in concert is based on aiding and abetting the commission of a rape by another person, rape is not a lesser included offense of rape in concert because it was not defendant who committed the rape. By parity of reason, the listing of rape as a lesser included offense to rape in concert by the Use Note to CALJIC No. 10.01, the former standard jury instruction on rape in concert, and Judicial Council of California Criminal Jury Instructions, CALCRIM No. 1001, the current such instruction, is correct when the rapist is charged with rape in concert, but is not when the aider and abettor of the rape is charged.
Defendant relies on People v. Caldwell (1984) 153 Cal.App.3d 947, as authority in support of her position. It does not. In Caldwell, the defendant argued that since there was evidence that he threatened to beat up his companion if the latter did not sodomize the victim, and the companion sodomized the victim out of fear of defendant, the evidence was insufficient to support his conviction of sodomy in concert because the companion was not acting voluntarily in committing the sodomy. (Id. at p. 951.) The appellate court rejected this contention, finding that “Defendant cannot argue that his order to [the companion to sodomize the victim] was not voluntary.... [T]here is no logical reason [the defense that the companion did not voluntarily commit the sodomy] should be available to defendant.” (Ibid.) In dicta, the court also commented “If [the companion] did not voluntarily [commit] the sodomy, that defense would be available to [him].” (Ibid.) However, this was not the holding of the case and it is not authority for such a proposition. (See People v. Ceballos (1974) 12 Cal.3d 470, 481.)
In People v. Keovilayphone (2005) 132 Cal.App.4th 491, 497, the appellate court concluded that rape in concert is a general intent crime. It also stated, “The word, ‘voluntarily’ in section 264.1 means that the defendant acted freely of his own volition, and not accidentally, unintentionally or out of fear or coercion.” (Id. at p. 496.) However, because it was not germane to the issue at hand, the appellate court did not prescribe the contours of the fear or coercion which would make the defendant’s acts involuntary. And, we reiterate, if the jury could conclude that defendant’s acts were sufficiently involuntary to negate the “voluntarily” element of 264.1, then they necessarily negated the intent necessary for defendant to aid and abet rape. There is no logical support for a position that by inserting the word “voluntarily” before “acting in concert” the Legislature meant to hold the People to a higher standard of proof of intent for those charged with rape (and sexual penetration) in concert than those charged as aiders and abettors to any crime.
The same provisions apply to sodomy in concert (§ 286, subd. (d)).
Moreover, as the People assert, there was insufficient evidence that defendant committed the acts she did to aid and abet the rape involuntarily so as to trigger a sua sponte duty on the part of the trial court to give an instruction on rape, assuming that such an instruction was legally appropriate. During her interview with police, defendant was asked how she felt when the uncle roughly helped the victim, who seemed scared of the uncle, remove her clothes. She responded only that she did not like what was going on-she said nothing about being in fear of the uncle. Defendant opined that the victim seemed to enjoy the uncle inserting his finger into the victim’s vagina after hitting the victim in the face. Again, defendant did not mention being afraid of the uncle at that point. Defendant told the victim “‘it’s gonna be okay, he’s not gonna hurt you’” while the victim was being raped by the uncle. If defendant believed the uncle would not hurt the victim, why would she believe that the uncle would hurt her? She said that during the mutual breast sucking she was scared “[t]hat if I tried to help [the victim] at all, or tr[ied] to tell him to stop, he would turn and try to do something to me” and she said she did not like what happened but she did not say that she engaged in the acts which we have described above out of fear of the uncle.
During cross-examination, the victim was asked by defense counsel concerning the time when the uncle accused her of stealing his drugs whether she would say that the uncle was out of control. The victim replied that he was. During redirect examination, the victim testified that the uncle did not once yell at defendant or threaten her-in fact, the uncle asked defendant, while he was raping the victim, if defendant wanted to “get in on this or something to that effect.” During re-cross, after the victim testified that she did not say no to the uncle at some point because she was very scared, defense counsel asked the victim, “[Defendant] didn’t say ‘no, ’ either? [¶]... [¶] Because [the uncle] was very angry himself? [¶]... [¶] And [he] was out of control? [¶]... [¶] And [he] was a big, strong guy? The victim replied, “Yes.”
Defense counsel also said, “... [E]veryone’s scared now” before he asked the victim if she would say that the uncle was out of control. However, the victim did not testify that defendant was scared at that point. The trial court sustained the prosecutor’s objection to defense counsel’s question whether the victim knew defendant was scared.
The foregoing does not constitute sufficient evidence that defendant did what she did to aid and abet the uncle’s rape of the victim involuntarily so as to trigger a sua sponte duty by the trial court to instruct the jury on rape.
b. Instruction on Consent as a Defense to Sexual Battery
Defense counsel argued to the jury that defendant was not guilty of the charged sexual battery because the victim consented to the mutual breast sucking. The People argued that this activity was against the victim’s will. The jury was instructed that the touching had to be against the victim’s will/without her consent. The jury was not instructed that if defendant actually and reasonably believed that the victim consented to the touching, she could not be guilty even if the victim, in fact, did not consent. Defendant contends that the trial court had a sua sponte duty to give this instruction. We disagree as there was no “evidence of equivocal conduct by the victim which led [the defendant] to reasonably believe that there was consent.” (People v. Williams (1992) 4 Cal.4th 354, 361, quoting People v. Romero (1985) 171 Cal.App.3d 1149, 1156.)
The instruction, and adaptation of portions of CALCRIM Nos. 1000 and 1030, would have read, “The defendant is not guilty of sexual battery while the other person was restrained if she actually and reasonably believed that the other person 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 other person consented. If the People have not met this burden, you must find the defendant not guilty.”
Defendant finds such evidence in the following testimony by the victim, during cross-examination:
“Q. [I]s [defendant] trying to comfort you or make you feel better [while the uncle is raping you] so that you won’t be so scared?
“A. Yeah. She told me it will be over soon.”
However, the sexual battery occurred after this, so, contrary to defendant’s assertion, the fact that the victim testified at trial that she interpreted defendant’s words to her that the rape would be over soon as an effort by defendant to comfort her about the rape was not “equivocal conduct by the victim which reasonably led the defendant to reasonably believe there was consent” to the mutual breast sucking.
Defendant also points to the victim’s testimony that she could not recall exactly what words defendant used to tell the victim to suck on defendant’s breast but she did communicate that information. This also does not constitute equivocal conduct by the victim which reasonably led defendant to believe the victim was consenting.
Defendant also points out that the victim did not say no to her during the sexual battery. However, she fails to acknowledge that the victim was in the process of being raped by defendant’s uncle, a crime which defendant aided and abetted, as already discussed, after having been otherwise victimized by both, the victim felt she could not get away from either and she was crying out of fear when defendant asked her if she liked sucking her breast. Given the circumstances, the victim’s failure to say no to defendant was not an equivocal act, but the result of having said it before, to no avail and being afraid.
As the People point out and we have already mentioned, the victim testified that at some point she just stopped saying no to the uncle because she was afraid. Because she viewed defendant to be in cahoots with the uncle, it is understandable why she did not say no to defendant.
Defendant’s self-serving statement to the police that the victim consented to sucking on defendant’s breast before the act began, which, as stated before, was contradicted by the victim’s testimony, was evidence of actual consent (which the jury did not believe), not evidence of an equivocal act by the victim upon which defendant made a reasonable but incorrect inference of consent. Defendant’s statement to the police that the victim “seemed comfortable” with her sucking on the victim’s breast was not sufficiently detailed or specific about what point in the act it occurred to constitute evidence of equivocal conduct by the victim permitting defendant to infer that she consented to it.
Defendant’s statement in her reply brief that the victim “considered [defendant] to be on her side” ignores the victim’s testimony that defendant was not helpful to the victim when defendant told the victim to put her mouth on defendant’s breast, defendant was not helpful when defendant put her mouth on the victim’s breast, defendant was not helpful when she was hovering over the victim while the victim was being raped and defendant was not helpful when she told the victim to let the uncle have sex with the victim-rather, defendant “was helping [the uncle] that night[.]”
3. “New Trial Motion”
At the beginning of the sentencing hearing, defense counsel stated that there was no legal cause not to pronounce sentence. The sentencing court stated its tentative sentence, for purposes of People v. Scott. The court noted that the sentence range for forcible rape under section 261, subdivision (a)(2) was three, six or eight years, and it intended to impose the low term of three years. The prosecutor stated that both the trial court and the probation officer incorrectly believed that defendant was convicted of forcible rape, when, in fact, she had been convicted of forcible rape in concert, the low term for which was five years, and he submitted on that term. Defense counsel said, “I was going to ask the Court, because I think five is really draconian for [defendant’s] involvement, if the Court, notwithstanding the verdict, could dismiss the [forcible rape in concert conviction]... and just go with the sexual battery and [impose]... three years midterm [for it]. [¶]... [¶]... I think five years is an awful lot of time at 85 percent.... [Defendant] in her interview [with the probation officer] showed remorse.... She was sorry. If she wasn’t on meth[amphetamine], she wouldn’t have done this.... [¶]... [Defendant] has no record whatsoever.”
People v. Scott (1994) 9 Cal.4th 331.
The sentencing court asked defense counsel what choice and authority it had. Defense counsel responded, “[T]he victim never alleged that any force was used [by defendant] or that [defendant] threatened [the victim].... [T]hat was an incorrect verdict based on that....” The prosecutor responded, “... I don’t believe there is any authority to dismiss. It was... argued to the jury that [the uncle] was using the force, the slapping, the hitting, the threats to her, while [defendant] was [in] a secondary role.” The prosecutor agreed that five years was significantly longer than three, but said he believed that was the appropriate sentence for the crime of which defendant was convicted.
The jury instruction for forcible rape in concert provided in pertinent part, “[T]o prove that a person is guilty of rape, the People must... prove certain elements: [¶] One, the person had sexual intercourse with a woman; [¶] Two, he and the woman were not married to each other at the time of the intercourse; [¶] Three, the woman did not consent to intercourse; and [¶] Four, the person accomplished the intercourse by force, violence, duress, menace, or fear of immediate or unlawful bodily injury to a woman or someone else. [¶]... [¶] [T]he defendant’s actually charged with committing rape by acting in concert with [the uncle] in violation of Penal Code Section 264.1. [¶] To prove that the defendant’s guilty of rape in concert, the People must prove that, [¶] One, the defendant voluntarily aided and abetted someone else who personally committed the forcible rape. [¶] [T]o decide whether [the uncle] committed rape, you can refer back to the instruction that I just gave you on the definition of rape. To decide whether the defendant or [the uncle] aided and abetted rape, refer back to the instructions that I gave you a second ago on defining what aiding and abetting means. You must apply those instructions when you decide whether the People have proved rape in concert.” Therefore, contrary to the assertion of defense counsel at the sentencing hearing, defendant did not have to apply force or threaten the victim herself in order to be guilty of forcible rape in concert.
Defense counsel said that the court had previously “seriously” considered granting her motion to acquit on the rape in concert charge and “the only way I can see that you have that latitude is notwithstanding the verdict to dismiss... that count....” The court reviewed its notes on the motion to acquit. The court said, “[W]hat choice do I have? I think there was sufficient evidence....” Defense counsel asked that defendant be sentenced “today” and the court imposed the lower term for rape in concert.
Defendant here contends that the words of her attorney at the sentencing hearing constituted a de facto motion for a new trial and the trial court failed to independently assess the evidence and satisfy itself that it was sufficient to sustain the verdict, therefore, it abused its discretion, requiring reversal after the conviction for rape in concert. However, even if we assumed that the exchange at the beginning of the sentencing hearing amounted to a new trial motion, the basis then stated for defendant’s motion lacked merit. Defendant did not call upon the trial court to reassess the credibility of witnesses as defendant seems to assert the trial court was deficient for failing to do. She had not even asked the court to do that during the motion to acquit. Counsel had a full opportunity to set forth precisely what she considered, at that point, to be the deficiencies in the proof. To the extent counsel incorporated by reference all her arguments made during the motion to acquit, the sentencing court reviewed them and still ruled against defendant. The record does not support defendant’s claim that the sentencing court did not independently assess the evidence and satisfy itself that it was sufficient.
See footnote 12, ante, page 20.
Even the two comments the trial court made during the motion to acquit, to which defendant draws our attention, do not persuade us that any new trial motion that might have existed was incorrectly denied.
Defense counsel argued during the motion to acquit that there was insufficient evidence that defendant aided and abetted the rape in concert because she told the police she was sorry, she was scared of being hurt by the uncle if she said or did anything to stop the rape, she put her hands on the victim’s upper arms merely to facilitate the mutual breast sucking, there was no evidence defendant used force against the victim, her statement to the victim to let the uncle hit it was just her way of telling the victim to let the uncle have sex with her and just get it over, even if the victim said she could not get up because defendant was hovering over her defendant did not intend her hovering to prevent the victim from getting up and defendant was just as scared as the victim. The comment the trial court made about the sufficiency of the evidence, to which defendant calls our attention (i.e., “... I don’t have to find that element beyond a reasonable doubt, do I?”), was directed at whether the victim and the uncle were married, as it related to an element of rape. (See the last sentence of fn. 14, ante, p. 22.)
As a fall-back position, defendant asserts that the failure of her trial attorney to specifically move for a new trial on the basis that the evidence did not support the verdict constituted incompetency of counsel. A reversal is appropriate on this basis, however, only if defendant can establish that it was reasonably probable she would have succeeded on such a motion. (Strickland v. Washington (1984) 466 U.S. 668, 687, 689.) She cannot. As the sentencing court concluded, there was sufficient evidence to support the verdict-in fact, there was more than sufficient evidence.
Disposition
The trial court is directed to amend the minutes for November 14, 2008 to show that defendant was convicted of a violation of sections 261, subdivision (a)(2) and 264.1. In all other respects, the judgment is affirmed.
We concur: RICHLI J.KING J.
“Q. Is [defendant] touching any part of your body while you’re being raped by [the uncle]?
“A. Just my chest. [¶]... [¶] She was just... caressing them.... [¶]... [¶]
“Q. Did [defendant] hold you down at all while [the uncle] is raping you?
“A. Not exactly holding me down, but she was over... me so I couldn’t get up, either way. And I couldn’t really move either way. [¶]... [¶]
“Q. Did you [tell a police officer] that [defendant] was actually holding your arms?
“A. At first she was. [¶]... [¶] But when she was asking me to suck on her chest and stuff, I can’t honestly say she’s still holding me down.... [¶]
“Q.... [Defendant] is holding your arms while [the uncle] is raping you?
“A. Yes. [¶]... [¶]
“Q.... So as you’re laying down, she’s got her arm on each of your arms?
“A. Yes.
“Q.... And then she takes her top off?
“A. Yes. [¶]... [¶]
“Q. She puts an arm on each of your arms?
“A. Yes.
“Q. And then she stops that and she takes her shirt off?
“A. Yes. [¶]... [¶]
“Q. What happened after she took her shirt off?
“A. She... t[old] me... to suck on her chest....” [¶]... [¶]
“Q.... [W]here is [defendant]... when [the uncle] is on top of you?
“A. She was... on the side of him but behind him.
“Q. And she stays behind him[?] [¶]... [¶]
“A. For the most part....
“Q.... And is she trying to comfort you or make you feel better so that you won’t be so scared?
“A. Yeah. She told me it will be over soon. [¶]... [¶]
“Q. [The defendant], at one point, move[d] closer to you [during the rape]?
“A. Yes.
“Q. And does she... lean towards you?
“A. Yes.
“Q.... So in order for her to lean down she had to put her hands somewhere... [¶]... [¶]... Where did she put her hands?
“A. On the top of my arms.... [¶]... [¶]
“Q. So she’s holding on to your arms somewhere where the muscles are and she’s trying to comfort you?
“A. Yes.” [¶]... [¶]
“Q.... [Defendant] held your [arms]... as a place to put her hands while she was sucking your breast, or do you know?
“A. I really don’t know that answer.” [¶]... [¶]
“Q. Does she tell you maybe sucking her breasts would be comfortable or comforting to you?
“A. Yes.
“Q. And... you do that?
“A. Yes.” [¶]... [¶]
Q.... Was [defendant] helpful when she told you to put your mouth on her breast?
“A. No....
“Q.... Was [defendant] helpful when she put her mouth on your breast?
“A. No.
“Q. Was she helpful when she was hovering over you while [the uncle] was... raping you?
“A. No.
The victim testified that before she sucked defendant’s breasts, defendant put her mouth on the victim’s chest but she never tied this to the pinning down of her arms by defendant.
The prosecutor argued that defendant’s participation in the rape in concert was shown when she told the victim to let the uncle “hit it.” The trial court appeared to believe defendant was telling the victim to let the uncle have consensual sex with the victim, but the prosecutor argued in response that defendant was “saying to [the victim that] you need to let this man... have sex with you or else.” The trial court responded, “Okay” and invited the prosecutor to continue with his argument. The court never said that it disagreed with the prosecutor’s interpretation.
In response to defense counsel’s argument that defendant was hovering over the victim merely to enable the breast sucking to take place, and not part and parcel of aiding the rape, the trial court said, “... I don’t think [the] hovering was intimidating. I don’t think she was holding her down. But the fact that she engages in sexual conduct with her during the rape does seem like she’s participating.” However the trial court, at that time, interpreted the act of defendant holding the victim’s arms, it was only one of several acts defendant performed that supported the jury’s verdict. Moreover, the trial court spent more time at the motion to acquit deciding whether the prosecutor had sufficiently established that the victim and the uncle were not married at the time of the rape than it did with these issues. (See last sentence of fn. 15, post, p. 23.)