Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF172033A, Patrick J. O’Hara, Judge.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Benito Mejia Munoz (appellant) was charged with one count of forcible rape of Heather M., pursuant to Penal Code section 261, subdivision (a)(2). The jury found him not guilty of the forcible rape but guilty of the lesser included offense of assault with intent to commit rape, pursuant to section 220. In a bifurcated proceeding, the trial court found not true the allegation that appellant had a prior serious felony conviction, pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and the allegation that appellant suffered a prior felony conviction and did not remain free of prison custody for five years, pursuant to section 667.5, subdivision (b). The trial court denied probation and sentenced appellant to the midterm of four years in state prison. He was also sentenced to a 16-month consecutive term on a previous case.
All further statutory references are to the Penal Code unless otherwise stated.
Appellant contends his conviction for assault with intent to commit rape must be dismissed because the verdict is not supported by the evidence and it constitutes an inconsistent verdict. We disagree and affirm.
FACTS
On October 8, 2006, Heather M., Samantha S., and Melina C. were standing outside an outreach shelter in Tulare where they were staying when Samantha received a phone call. Shortly thereafter, a van pulled up, driven by a man named Johnny. Robert Gracia was in the passenger seat.
The girls got into the van and thought they were on their way to a hotel room “to get high.” While in the van, Gracia told Samantha that she “owed him.” Gracia asked Heather if she had any knowledge of computers. Gracia explained that he wanted to steal money from certain accounts and was having trouble with the person who was supposed to help him do so. Gracia also asked Heather if she knew how to make fraudulent checks. Heather told Gracia she knew a lot about computers.
Gracia asked Heather if she was a Bulldog gang member. He told her she “look[ed] good, and he would have fun with [her].” Gracia stated that it would not be good if Heather was a Bulldog gang member because he was a Norteno gang member. Heather noticed the van was headed out of town and she became afraid. She asked Gracia where they were going, but he said not to worry.
They eventually arrived at appellant’s garage in Porterville. The metal door to the garage was broken. To open it required manually lifting the heavy garage door and propping it up with a bucket filled with dirt and cement. To enter or leave the garage required crawling under the door through the low opening. There were two couches in the garage.
Once in the garage, Gracia asked Heather if she was afraid. Gracia told Samantha to tie her up. Samantha complied and tied Heather’s feet and hands with her shoelaces and used a belt to connect her hands and feet. Gracia again asked Heather if she was afraid. Johnny and appellant were also in the garage.
Gracia removed Heather’s sweatshirt and lifted her T-shirt and bra. He then grabbed her breasts and pinched her nipples. Gracia told Samantha to untie Heather, which she did.
Gracia then grabbed Heather’s arm and took her outside. He pinned her against the fence, tried to kiss her, and accused her of being a cop and wearing a wire. Heather told Gracia she was not a cop. Gracia insisted that Heather prove she was not a cop by doing whatever he ordered. He told her that if she was a cop she would “end up in a field in Pixley.” He further told Heather he would “represent” her, meaning he was going to initiate her into his gang. Heather told Gracia she would do whatever he wanted as far as the computers if he did not hurt her.
Gracia brought Heather back into the garage where Samantha took Heather’s identification and social security card out of her purse and gave them to Gracia. Gracia said he would hold onto her identification because it had her name and address on it. Heather did not struggle because there were seven gang members in the garage at the time.
Gracia left with Melina, and the other men in the garage drank alcohol and smoked methamphetamine. Heather also smoked methamphetamine.
While in the garage, Heather saw a lead pipe. Appellant had a handgun which was wrapped in duct tape. Appellant pointed the gun at Heather and explained that when he used the gun, he peeled off the duct tape to remove the fingerprints.
Heather told Gracia that her mother calls each day to check on her at the shelter, and she would know something was not right if Heather was not back soon. Gracia decided to take Melina back to the shelter and have her answer the phone and lie to Heather’s mother if she called.
That night, Heather and appellant went to a gaming casino where Heather played the slot machines for about 30 minutes.
The next morning, Samantha said she owed Gracia money and needed to go back to Tulare to get some credit cards and checks. Gracia drove Heather, Samantha, and Melina back to Tulare to drop off Melina. At the shelter, Gracia told Heather to get her belongings and to look for checkbooks and checking account numbers there. He warned her that if she did not come back, he would hurt Samantha. While at the shelter, Heather told Melina that if she did not call her later that day, Melina should call the police. When Heather returned without any checkbooks or account numbers, Gracia and Samantha were mad. They took Heather back to Porterville.
Once back at the garage, Gracia insisted that Heather orally copulate him or he would kill her. He also said he would kill her entire family. At one point, Gracia slapped her face “really hard.” Heather resisted, but after he threatened her again, she orally copulated Gracia.
That afternoon, Heather overheard Gracia tell people on the phone that he had a girl they could use sexually for money or drugs. Appellant’s brother Steven arrived later that afternoon. Gracia told Heather to orally copulate Steven. When she said no, Gracia said he would kill her and hit her. Heather screamed and both Gracia and Samantha yelled at her and told her to cooperate if she wanted to live. Samantha also slapped Heather in the face. Eventually, Heather orally copulated Steven. Heather saw Steven give Gracia $50 and give appellant some “dope.”
After Steven left, the garage door was open and Heather tried to scream. But Gracia tackled her and choked her. He then insisted that she again orally copulate him, which she did.
Appellant told Heather that he liked to “bump and run,” in which he would drive down the street, see an attractive female, clip her car, put her into the back seat, take her to the garage, and tie her up and rape her. Gracia and appellant laughed and Gracia said he had done this to three girls he assaulted in the garage for a long period of time.
Later that day, Gracia brought Robert Gonzales, or ET as he was known, to the garage and told Heather she had to have sex with him. When Gracia left Heather and Gonzales in the garage, Heather begged Gonzales to leave her alone. Gonzales told Heather not to worry, that he was not going to do anything to her and would not tell Gracia. When Gracia came back to the garage and asked if they were through, Gonzales said they were and left.
Gracia then left Heather with appellant. Heather begged appellant to let her go home. Appellant said he did not like the situation because his wife would find out, but that it was Gracia’s “thing” and he had no control over it.
Gracia then came back and told Heather to orally copulate appellant, and he threatened to kill her if she didn’t. Gracia took Heather into appellant’s house. Heather cried and pleaded and told appellant she wanted to leave, but appellant again responded that this was Gracia’s “thing.” Appellant asked Heather if she was ready “to suck his dick,” and Heather then orally copulated him. After 15 minutes, without ejaculating, appellant told Heather to stop and zipped up his pants. The two then smoked marijuana and watched a pornographic movie.
Gracia later took Heather to appellant’s bedroom and told her to have intercourse with appellant. Heather told appellant she did not want to have sex with him, but by this time “begging and pleading wasn’t getting anywhere,” and she was afraid they would kill her. Appellant undressed Heather, who was crying, laid her on the bed, held her down by her arms, and placed his penis into her vagina. Appellant eventually got off of Heather and told her to get dressed. Heather was not sure if appellant ejaculated.
Gracia took Heather back to the garage where Samantha gave her a couple of pills to make her sleep. Heather laid down on the couch while Gracia and Samantha had sex next to her. Gracia tried to take Heather’s pants off several times, but Heather was able to keep him from doing so. The three then went to sleep.
The next morning, Gracia heard noises and thought the police were coming. He told Heather and Samantha to hide. After 10 minutes, Gracia said he needed more drugs, so he took Heather’s rings, called someone, and sold the rings for $50.
Gracia, appellant, Samantha, and Heather got into appellant’s car to look for drugs in Porterville. After buying drugs, the four returned to the garage where they all got high on methamphetamine. Gracia told Samantha to inject Heather with drugs so that she could perform better sexually. Heather did not protest as she did not care what happened to her at this point. Samantha injected her seven times with methamphetamine.
Gracia then told Heather that if she helped him steal money from some bank accounts, he would let her go home. Gracia and appellant brought in two computers with missing parts and told Heather to get them working.
Heather told appellant and Gracia she needed to get a computer program from her friend Brett who lived in Fresno. Appellant and Gracia agreed to meet with Brett in Fresno, but Heather later convinced them not to, as Brett would probably contact the police. Heather persuaded Gracia to call Brett so that he would not be suspicious. Gracia took Heather and Samantha to a pay phone at a Save Mart. While walking, Heather noted for the first time that the garage was on Wisconsin Street.
At the pay phone, Samantha called Brett. When Samantha said she needed quarters, Gracia gave Heather $2 to go into Save Mart to get them. Once in the store, Heather wrote a note saying she was kidnapped by Nortenos on Wisconsin Street. She included her full name and her mother’s phone number. She gave the note to a cashier and told her it was not a joke. Gracia then motioned for Heather to come over to him. The cashier in turn gave the note to her manager.
Police Detective Brian Clower responded to Save Mart and reviewed the store’s surveillance tape. He and another officer went door to door looking for suspects. They eventually saw appellant and Gracia get into a vehicle and drive away. Detective Clower initiated a traffic stop and detained appellant and Gracia. One of the two told Detective Clower that the female in the surveillance tape was in the garage.
Detective Clower and other officers arrived at the garage. They had a difficult time opening the garage door and had to “break it, basically.” Heather ran to one of the officers and told him she needed to get out of there and make sure her family was safe.
Detective Sonia Silva spoke to Melina a few days later. Melina told her that Gracia wanted to beat up Samantha and that she and Heather agreed to help Samantha by making fraudulent checks and money transfers. Melina told Detective Silva they were all having a good time until they wanted to go home and were not allowed to. According to Melina, she was allowed to return to the shelter because she was “no use to them” and she could cover for Heather and Samantha’s absence from the shelter. She said Heather had told her back at the shelter that she did not want to go back to Porterville, and when she had asked Gracia if she could go home, he said no. But at trial, Melina testified that the girls were all free to go and she denied telling Detective Silva that Heather felt threatened.
Detective Silva spoke to Gonzales, who told her that Heather was crying and being mistreated. Gonzales heard Gracia yell at Heather because she did not want to have sex with Gracia.
Detective Silva spoke to Samantha, who told her Gracia was mean to Heather, yelled at her, and forced her to have oral sex. Samantha said she was afraid for her life and that Gracia had threatened her family. She confirmed that Steven Munoz “paid her” $50 worth of methamphetamine so he would receive oral sex from Heather. Samantha told Detective Silva she had also been sexually assaulted by Gracia.
But at trial, Samantha testified that she willingly had sex with Gracia and that no one physically forced Heather to perform oral sex. Instead, Samantha claimed, “they just told [Heather]” to do it and she did. Samantha acknowledged that she did tie up Heather, but claims it was done in fun because Heather wanted to see if she could get loose. Samantha claimed to have lied when she told Detective Silva that Heather was threatened and when she stated that she was afraid for her life.
Heather had only known Samantha one day before they were taken to the garage. She did not know appellant or Gracia prior to the events in question. Heather testified that she did not willingly do anything sexual with appellant, Gracia, or Steven to get methamphetamine.
Steven Munoz testified for the defense that he went to his brother’s garage to visit. He claimed that when he brought out a bag of methamphetamine, Heather told him she gave good blow jobs. The two made a deal to trade the drugs for oral sex. Steven explained that he originally lied to the police and denied he received oral sex because he did not want his wife to find out.
Appellant’s next door neighbor, Rocio Lamas, testified that she saw two females around appellant’s apartment in early October of 2006. She described the females as coming and going between the garage and apartment and that they “seemed fine.” Lamas did not hear anyone scream or call for help.
Jonathan Davidson, who was in custody for receiving a stolen vehicle, testified that he knew Heather and took her to an Alcoholics Anonymous meeting in February of 2007, three months after the incident. In January of 2007, Davidson, Heather and Heather’s boyfriend were together at a gas station when Heather told him she was not raped and “it didn’t go down like that.” According to Davidson, Heather claimed her friend did not want to leave the garage, so she stayed there with the guys and smoked methamphetamine. Davidson thought Heather was “[p]robably” high when she made these statements. Davidson also claimed that Heather told him she falsely reported another rape because she was having problems with her husband at the time.
Heather testified in rebuttal that she did not know Jonathan Davidson. She met her boyfriend a month after the incident. Heather last attended an Alcoholics Anonymous meeting in 2005. Heather had been drug tested since October of 2006 and had not tested positive.
For his participation in the crimes against Heather, the jury convicted codefendant Gracia of forcible rape against Heather. He was also convicted of kidnapping for ransom (§ 209, subd. (a)), kidnapping to commit another crime (§ 209, subd. (b)(1)), and four counts of forcible oral copulation (§ 288a, subd. (c)(2)). The count of false imprisonment by violence (§ 236) was dismissed by the court.
DISCUSSION
The Verdict Is Not Inconsistent and There Is Sufficient Evidence to Support It
Although appellant and Gracia were charged with the same crime and tried jointly for the forcible rape against Heather, the jury convicted Gracia with forcible rape and found appellant guilty of only the lesser included offense of assault with intent to commit rape. Appellant asks that this court set aside the verdict and judgment of assault with intent to commit rape because the verdict is not supported by the evidence and is inconsistent, denying him his due process rights. According to appellant, the verdict convicting Gracia of rape while convicting appellant, who had intercourse with Heather, only of assault with intent to commit rape created a “logical absurdity that cannot be explained except by the use of some type of compromise verdict by the jury that is not based on the evidence.” We disagree.
As both our Supreme Court and the United States Supreme Court have recognized, “[i]nconsistency in a verdict is not a sufficient reason for setting it aside,” whether the inconsistency is “between verdicts on separate charges against one defendant” or “with respect to verdicts that treat codefendants in a joint trial inconsistently.” (Harris v. Rivera (1981) 454 U.S. 339, 345; accord, People v. Palmer (2001) 24 Cal.4th 856, 860-861; see § 954.) “‘The fact that certain defendants may escape conviction for their crimes is not any legal or logical reason why another defendant, where substantial evidence has been introduced to sustain his conviction, should be exonerated and be permitted to escape punishment for his crime.’” (People v. Palmer, supra, at p. 861, quoting People v. Taylor (1948) 88 Cal.App.2d 983, 987-988.)
In People v. Abilez (2007) 41 Cal.4th 472, the defendant Abilez and his cousin and codefendant Vieyra were charged with the same crime, the murder of Abilez’s mother, and tried jointly. (Id. at p. 512.) The victim was found dead, lying facedown with a sock knotted around her neck. Her pants were pulled down and her shirt pulled up. An autopsy concluded the victim died of asphyxia due to strangulation, and there was evidence she had been sodomized while alive. (Id. at p. 482.) Abilez and Vieyra were stopped in the victim’s car shortly after the murder. (Id. at pp. 482-483.) Testimony put Abilez at the scene. Witnesses testified that Abilez hated his mother, that the two argued before her death, and that he had said he wanted to kill her. (Id. at pp. 483-484.) Vieyra testified in his own defense that, on the day of the murder, he ran into Abilez. The two went to the victim’s house and Abilez was in the victim’s room for quite some time. When Vieyra checked on him, he saw the victim lying on the floor. Abilez was straddling her and had a cloth around her neck. The victim was still alive, but Vieyra left the room. Later, Abilez told him it was “done.” Vieyra testified that he was close to the victim and volunteered to take a blood or saliva test to clear himself of the sodomy charge. (Id. at pp. 484-485.)
The jury convicted Vieyra of only second degree murder, while it convicted Abilez of first degree murder with three special circumstances. Both Abilez and Vieyra were convicted of robbery and burglary. (People v. Abilez, supra, 41 Cal.4th at p. 512.) On appeal, Abilez argued the verdicts were fatally inconsistent and violated his constitutional rights.
The court in Abilez found his contention meritless, noting that the jury could reasonably have found Abilez’s culpability greater than Vieyra’s. And although the court stated that since Vieyra participated in the death, robbery and burglary of the victim, the jury “should have returned a verdict of first degree murder by application of the felony-murder rule,” Abilez was not entitled to relief on the basis of inconsistent verdicts. (People v. Abilez, supra, 41 Cal.4th at p. 512.) Abilez argued that, by the verdicts, the jury chose to “‘disregard the law’” but the court held that “‘[a]n inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict.’ [Citation.]” (Id. at p. 513.) The court in Abilez concluded that the verdicts, even if inconsistent, did not require that Abilez’s conviction be reduced to second degree murder or to vacate the sentence of death, and also rejected his argument that failure to do so would violate his constitutional rights. (Ibid.)
Similarly, in People v. Palmer, defendants Palmer and Price were both charged with the attempted premeditated murder of one individual, Richard Humphries, and conspiracy to commit murder of another, Judith Showalter. Palmer and Price were tried together but by two separate juries. “[I]n the end, both juries heard essentially the same evidence.” (People v. Palmer, supra, 24 Cal.4th at pp. 858-859.) The evidence at trial showed that Palmer and Price were in a vehicle together when Price, the driver, pulled alongside a car driven by Humphries, and Palmer shot at him twice. A couple of hours later, Price sideswiped a car driven by Showalter, and Palmer shot her in the head and took her vehicle. Price and Palmer both gave statements to the police implicating each other. (Id. at p. 859.) Price was found guilty of all charges and the premeditation allegation was found true. Palmer was found guilty of attempting to murder Humphries, but the premeditation allegation was found not true and he was found not guilty of conspiracy to murder Showalter. (Id. at pp. 859-860.)
On appeal, Price argued that, because it takes at least two to conspire, the verdict finding Palmer not guilty of conspiracy was inconsistent with his conviction for the same conspiracy, requiring reversal of his conviction. He made a similar argument regarding the premeditation findings. Our Supreme Court disagreed:
“The conspiracy verdicts, if not the premeditation findings, are indeed inconsistent, but both may be given effect. The law generally accepts inconsistent verdicts as an occasionally inevitable, if not entirely satisfying, consequence of a criminal justice system that gives defendants the benefit of a reasonable doubt as to guilt, and juries the power to acquit whatever the evidence.” (People v. Palmer, supra, 24 Cal.4th at p. 860.)
Appellant acknowledges that inconsistent verdicts are generally allowed to stand, but contends “there are limits,” such as here where the prosecutor relied on inconsistent theories of guilt. According to appellant, Gracia was found guilty of a rape that appellant did not commit, “although the only factual theory for the rape is based on [appellant] having intercourse with [Heather].” According to appellant, the prosecutor argued:
“The theory there would be that [appellant], who had no mens rea, was used to rape [Heather] on behalf of Gracia, and that theory logically coincides with the use of the other men by Gracia, and the legal system treating them as paying customers and not as rapists or forcible oral copulators.”
Appellant relies on In re Sakarias (2005) 35 Cal.4th 140, in which the two defendants, Sakarias and Waidla, were each, in separate trials, convicted of first degree murder with special circumstances and sentenced to death. In petitions for writ of habeas corpus, both defendants claimed the prosecutor in each trial had presented factual theories inconsistent with those presented at the codefendant’s trial. (Id. at p. 144.) Both defendants had been charged with the death of a woman whom they had worked for, but their cases had been tried separately. The evidence was that Waidla wielded a hatchet and struck the first, antemortem blow, and that Sakarias then struck the woman with two postmortem or perimortem chopping wounds. But the prosecutor argued at each trial that the defendant on trial had inflicted all the chopping wounds. (Id. at p. 147.) Our Supreme Court granted relief to Sakarias, who inflicted the postmortem wounds, finding that the People’s bad faith use of inconsistent theories deprived him of due process. (Id. at p. 155-156.)
Here, no such inconsistent theories of guilt were argued. Despite appellant’s claim to the contrary, the prosecutor argued only one theory: that Gracia orchestrated the rape of Heather by appellant and that appellant raped Heather. In her opening remarks, the prosecutor stated that Gracia forced Heather to orally copulate him several times and he forced her to orally copulate other men, including appellant. She then said, “And also while in the garage, she was forced to have sex [with] [appellant].” And during closing, the prosecutor argued that appellant had sexual intercourse with Heather; that Heather did not consent to the intercourse; that the intercourse was by force, violence, duress, menace, or fear; and that “Gracia is also charged with this count because he is an aider and abetter. He set it up. He’s just as guilty.”
Even assuming appellant and Gracia’s convictions on the same charge are inconsistent, “a verdict apparently inconsistent shall afford no basis for a reversal where the evidence is sufficient to support the conclusion that the defendant is guilty of the offense of which he stands convicted.” (In re Johnston (1935) 3 Cal.2d 32, 36.) To the extent appellant’s argument is a challenge to the sufficiency of the evidence, our review of the record discloses that Heather repeatedly told appellant that she did not want to have sex with him. He nevertheless held her down on the bed and placed his penis in her vagina. A conviction for assault with intent to commit rape requires the prosecution to prove beyond a reasonable doubt that appellant had the intent to commit the act of rape against Heather’s will. The evidence here is sufficient to support appellant’s conviction.
We conclude that any inconsistency between appellant’s verdict and Gracia’s verdict does not warrant reversal of appellant’s conviction. We also reject his argument that failure to do so will violate his constitutional rights. (People v. Abilez, supra, 41 Cal.4th at p. 513.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., KANE, J.