Opinion
E031786.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. OTIS LEE RODGERS, Defendant and Appellant.
Mark S. Devore, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Douglas P. Danzig, Deputy Attorney General, for Plaintiff and Respondent.
Defendant appeals from his conviction for attempted rape. (Pen. Code, §§ 664/261, subd. (a)(2).) We affirm, concluding: (1) The record does not support defendants argument that the trial court refused to allow him to explore racial bias during jury voir dire; (2) Defendant waived his argument that the trial court improperly denied him the opportunity to cross-examine the victim about marital infidelity; (3) There was sufficient evidence that defendant had the requisite specific intent to rape because the victim testified that defendant became angry, grabbed her by the arm, tried to turn her around, and forced her pants down while she struggled to keep them up; and (4) Although the court may have erred by failing to instruct the jury sua sponte that an honest but unreasonable belief that the victim consented negates the requisite specific intent to rape, any such error was harmless given the evidence of a relatively protracted struggle with defendant.
All further statutory references will be to the Penal Code unless otherwise indicated.
STATEMENT OF FACTS
Around 6:00 p.m. on the night in question, after having a fight with her husband, the victim walked to a convenience store that was a few blocks away from her home. The victim purchased money orders and scratch-off lottery tickets, then walked over to a hamburger stand nearby and purchased a sandwich. The victim spent the next half-hour to 45 minutes eating her food and scratching the lottery tickets.
After eating her food, the victim did not want to go home and face her husband yet, so she walked over to a bar that was also nearby. Within an hour, the victim ordered and consumed three rounds of drinks, each consisting of a shot of tequila and a beer. The victim spent another hour playing a video game and ordered more drinks. By then, the victim was admittedly "very drunk," so much so that she called a taxi because she thought it would be dangerous to "stumble" home.
While the victim waited for the taxi, some women, including defendants wife, began dancing. The victim testified that they appeared to be putting on a show of some sort, with spectators putting money in their clothing. After defendants wife finished her dance, the victim started a conversation with her by saying that she liked the way she danced. They talked for about 20 minutes and the victim mentioned that she did not know anyone in the area. Defendants wife gave the victim her telephone number, told the victim to call if she wanted, and said that maybe she could teach the victim some dance moves. At one point during the conversation, defendants wife offered to teach the victim some dance moves right there in the bar. The victim replied that that would be "cool" and tried to copy the motions of defendants wife. But the victim became embarrassed because she could not do the move and felt like everyone was watching.
The record is not entirely clear, but it appears that the bar was a strip club at least part of the time and the dancers were strippers. The victim claimed that on the night in question she did not know that it was a strip club because she had never been in it before, only saw defendants wife fully clothed, and never saw what the other women were wearing.
When the victim mentioned that she was waiting for a taxi, defendants wife offered to give her a ride if the taxi did not arrive first. At that point, the victim decided she wanted another drink and offered to buy defendants wife a drink. While the victim ordered the drinks, defendants wife spoke with defendant, who was sitting nearby. Defendant suggested that they go to another club, but the victim just wanted to go home, so they agreed to drop her off on their way to the other club.
They left the bar and got into defendants van, with defendant and his wife in the front seat and the victim in the back beside a childs car seat. Defendant immediately asked the victim if she was a lesbian. The victim said no and asked why defendant thought that. Defendant replied that he was just asking and the victim did not have to be rude about it. Defendant and his wife asked the victim why she was at the bar alone, and she replied that she had gotten into an argument with her husband and wanted "something to make me feel good" before returning home. Defendant told the victim that he and his wife had a great relationship because she permitted him to go with other women and then tell her about it, which brought them more passion. Defendant indicated that all marriages should be like that and told the victim that that was probably what was missing from her marriage. The victim responded that she would never allow that in her marriage.
Defendant then told his wife that the victim seemed cramped and asked her to move the childs car seat for the victim. The victim said she was fine, that the seat did not have to be moved, but defendant became angry and told his wife to move the seat anyhow. So defendants wife climbed into the backseat, moved the child seat, and sat down next to the victim. Defendant asked the victim if she wanted a threesome, and she replied "Ive never done that before." Defendants wife then told the victim to relax and tried to touch the victims breasts over her shirt. The victim grabbed defendants wifes hand and told her no. Defendants wife stopped immediately and pulled away.
The victim then noticed that defendant had also climbed into the backseat. The victim became nervous, started moving towards the door, and asked to get out of the van. Defendant grabbed her arm and tried to turn her around. Defendant told her to turn around so he could "finish," and pleaded "Come on. Come on." At trial, the victim could not recall if defendant was clothed at this point or not, but thought that his pants were unbuttoned.
In order to get defendant to let her out of the van, the victim told him that an old cut on her arm had started bleeding again and she needed to go home or go to the doctor. The victim testified that at that point she was just trying to gather herself and start thinking clearly because she was really drunk, but she was becoming frightened and defendant was getting "really angry." While holding onto her arm, defendant managed to pull the victims pants down to about her knees, despite her struggling to keep them on.
Just then, the victim noticed two people walking up the street towards the van and she started getting loud. The victim did not yell for help though, because she was afraid of what defendant might do. Defendants wife warned defendant about the approaching people and defendant told the victim "dont try to act like Im trying to rape you." The victim replied that defendant should just let her out of the van. That made defendant angry and he began yelling at the victim, demanding to know if she wanted to go home or go to the hospital to treat her arm, and said maybe they should call 911 since she was in such pain.
Defendants wife said they should just go, so they got back into the front of the van and drove away. The victim asked them to take her home, but defendant insisted on taking her to the hospital. While the victim gathered her things in the back of the van, she started crying and apologized for causing trouble. The victim testified that she apologized because she thought she may have given off the wrong impression. When the van was stopped at a stop light near the convenience store, the victim said defendant could just leave her there, opened the door, and got out.
The victim immediately recorded defendants license plate number, ran back to the convenience store, and called 911, telling the operator that she was almost raped. The 911 tape was played for the jury and the victims statements during that conversation were not entirely accurate or consistent with her testimony. For instance, the victim incorrectly identified the hamburger stand, claimed that she told defendant that her neck was bleeding as opposed to her arm, and said that defendant was naked while he was driving. While she waited for the police to arrive, the victim purchased a bottle of tequila, although it does not appear that she drank any of it that night.
The police arrived shortly after the call and interviewed the victim. The victim testified that she was drunk and hysterical during the interview. Again, the victims statements to the police were not entirely consistent with her testimony. The victim told the police that she went to the bar before getting a sandwich at the hamburger stand and then went back to the bar; indicated that defendants wife worked at the bar; claimed that defendants wife reached under her shirt, touched her bare breast, and refused to stop immediately when asked; and claimed that defendant was fully disrobed before climbing into the back of the van. The police testified that the victim gave the same basic statement three separate times that night, but was never questioned the next day when she was sober. The police quickly apprehended defendant and his wife at their house, and had the victim identify them that night.
Defendant and his wife were charged in an amended information with attempted rape (§§ 664/261, subd. (a)(2)), and defendants wife was separately charged with sexual battery (§ 243.4, subd. (a)). Defendant represented himself at trial, while his wife had appointed counsel. The court granted the wifes section 1118 motion to dismiss the sexual battery count. The jury found defendant guilty of attempted rape, but found defendants wife guilty of only the lesser included offense of simple assault. (§ 240.)
DISCUSSION
1. Jury Voir Dire
Defendant argues that the trial court prevented him from exploring the issue of racial bias with a juror during voir dire, citing the following exchange:
"[Defendant] You ever heard of the boy who cried wolf? Many people cry wolf when theres no wolf.
"[Juror] I would say, yes, there are.
". . .
"[Defendant] . . . [J]ust because somebody cries sexual abuse, that doesnt mean there was sexual abuse.
"[Juror] Thats true.
". . .
"[Defendant] Thats same as the issue of racism. Just because youre white and Im black, does that mean youre a racist?
"[Juror] No.
"[Prosecutor] Objection, your Honor.
"THE COURT: Sustained.
"Mr. Rodgers, there are some questions you will not be asking. Ask another question."
We find nothing about the trial courts warning that prevented defendant from exploring the issue of racial bias. The question about racism was not even intended to uncover racial bias, but rather to make the point that allegations do not constitute proof. And the trial court sustained the objection based on the argumentative nature of the question, not because it involved race. The court adequately demonstrated its willingness to explore the issue of racial bias on numerous other occasions, both before and after the aforementioned exchange. Prior to voir dire, the court told defendant that he could ask the prospective jurors if it would make any difference that the victim was Hispanic and the defendants were African-American. Then during voir dire, the judge asked the jury panel: "And the fact that we have a Hispanic alleged victim and African-American defendants, would that cause anyone any difficulty in evaluating the evidence in this case? Keeping in mind that is a totally irrelevant factor? Anyone like to comment on that?" The court subsequently gave defendant broad latitude to question the prospective jurors individually on a number of topics, including racial bias. As a result, defendant was able to ask one potential juror if defendants race was a factor, three other potential jurors if there was anything about defendants appearance that they did not like or that made him seem guilty, and two potential jurors with Hispanic surnames whether they would be influenced by the fact that the victim was Hispanic. In conclusion, defendants argument is simply not supported by the record.
2. Limitation on Cross-Examination of Victim
During direct examination, the victim spontaneously asserted that she had always been faithful to her husband. However, she had been previously arrested for assaulting her husband, and the records from that arrest indicated that her husband had sparked the conflict by accusing her of having an affair.
Defendant argues that the trial court erred by denying him the opportunity to impeach the victims claim of marital fidelity with the evidence about her husbands allegation of infidelity. We disagree, finding that the issue was waived. When the issue arose during trial, the prosecutor argued that the accusation of infidelity was irrelevant and inadmissible. Defendants wifes attorney responded that he was not going to use that evidence anyhow, because he wanted to avoid the issue of impeachment in order to keep his examination "short and to the point." The court then indicated: "Ill give [defendant] a moment to put his position on the record, but I agree with, [the prosecutor], that information would be very irrelevant." To which defendant responded: "I have no disagreement, but I will state she did say that she was faithful. She was married. She was faithful to her husband, but I dont have a problem with that." Thus, although the allegation of infidelity may have been admissible to impeach the victims assertion that she was always faithful (Evid. Code, §1103, subd. (c)(4)), the issue was waived (id ., § 353).
Defendant argues his statements did not constitute a waiver because any argument would have been futile given that the trial court previously ruled that the evidence was irrelevant. If defendant simply remained silent on the matter, failing to object to the trial courts ruling, this argument might carry some weight. But defendant explicitly agreed with the trial court. Under those circumstances, it is impossible to infer anything but a waiver.
3. Insufficient Evidence of Specific Intent to Rape
Defendant was convicted of attempted rape, which requires a specific intent to commit an act of sexual intercourse against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (§§ 21a; 261, subd. (a)(2); People v. Marshall (1997) 15 Cal.4th 1, 36; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319.) Defendant argues that there was insufficient evidence of the requisite specific intent. We disagree. Viewing the evidence in the light most favorable to the judgment, defendant became angry, grabbed the victim by the arm, tried to turn her around, and forced her pants down to her knees, all while the victim struggled to keep her pants on and reach the door of the van. This evidence is sufficient to allow a reasonable jury to find beyond a reasonable doubt that defendant specifically intended to force the victim to have sex. (People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
4. Jury Instruction On Honest But Unreasonable Belief of Consent
The jury was instructed that defendant could not have the requisite intent for attempted rape if he had a "reasonable and good faith belief" that the victim consented to sexual intercourse. (See CALJIC No. 10.65; People v. Mayberry (1975) 15 Cal.3d 143, 155.) Defendant argues that the jury should have been instructed that any good faith belief, even an unreasonable one, negated the requisite specific intent to rape.
As the Attorney General concedes, this instruction was probably erroneous. Because attempted rape is a specific intent crime, any honestly held belief in consent, even an unreasonable one, negates the requisite specific intent. (See CALJIC No. 10.65 [applying the reasonable and good faith belief in consent defense to "forcible rape," but not "attempted rape"]; CALJIC No. 4.35 [reasonableness requirement should be deleted from instruction on mistake of fact when specific intent crime involved]; People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11 [concluding that a mistake of fact in regard to theft need not be reasonable because theft is a specific intent crime].)
However, the Attorney General notes that defendant did not request an instruction on honest but unreasonable belief in consent, and claims there was insufficient evidence of such a belief to warrant a sua sponte instruction. We disagree. A sua sponte instruction was required if defendant actually relied on this defense, or there was substantial evidence supporting it and it was not inconsistent with defendants theory. (People v. Maury (2003) 30 Cal.4th 342, 423-425.) Initially, although defendants pro per argument was not a model of clarity, he appeared to argue that the victim sought sex, changed her mind, and falsely claimed rape in order to mask her guilty feelings over her own conduct. Furthermore, given the victims extreme intoxication, equivocal conduct, and admission that she probably gave the wrong impression, there was substantial evidence to support an honest belief in consent defense. Lastly, the trial court found sufficient evidence to warrant a "reasonable and good faith belief" instruction, which necessarily includes a finding that the good faith element was adequately supported by the evidence.
Despite the likely error in requiring that defendants good faith belief be reasonable, we find any such error to be harmless. Failing to provide sua sponte instructions on a defense, such as mistake of fact, is an error of state law that is only reversible if there was a reasonable probability of a more favorable result absent the error. (People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1051; see also People v. Breverman (1998) 19 Cal.4th 142, 165 [applying same standard to requirement of sua sponte instructions on lesser included offenses].) Under the facts of this case, we see no reasonable probability of a more favorable result because the victim testified to a relatively protracted struggle with defendant. It is difficult to believe that defendant honestly believed the victim consented to sex while she was struggling to keep her pants up.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P.J., Ward, J.