Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA039600, Charles A. Chung, Judge.
Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Jimmie Lee Boyd appeals from the judgment entered following his convictions by jury of attempted forcible rape (Pen. Code, §§ 664, 261, subd. (a)(2), as a lesser included offense of count 2 - forcible rape) and on count 3 – assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) with admissions he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)), a prior serious felony conviction (Pen. Code, § 667, subd. (a)), and three prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd (b)). The court sentenced appellant to prison for 16 years. We affirm the judgment.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on August 17, 2007, Arlene F. (Arlene), who was homeless, lived in a tunnel near a freeway in Lancaster. That evening, Arlene was asleep in her bed in the tunnel. She was awakened when appellant jumped in her bed. Appellant said, “ ‘I have to do this.’ ”
Appellant, using one hand, choked Arlene’s neck and, using the other hand, was pulling her pants off. Appellant took Arlene’s pants off, took his pants down, put her in a chokehold, and dragged her to the end of the tunnel. Appellant’s arm was cut and there was blood on Arlene’s pants. During the struggle, Arlene told appellant to think about what he was doing. Arlene struggled back to the tunnel’s entrance with appellant still on top of her. While there, appellant, choking Arlene, tried to put his penis in her vagina. Appellant could not put his penis in Arlene’s vagina, but his penis rubbed against her vagina.
On the evening of August 17, 2007, Matthew Olivas and Candice Winfrey lived in a tunnel next to Arlene’s tunnel. Olivas was awakened by Arlene saying that people should not hurt people. Arlene sounded like she needed help. Olivas and Winfrey exited their tunnel to go towards Arlene’s location. Appellant and Arlene were at the entrance of Arlene’s tunnel. Arlene was lying on the ground, appellant’s pants were down around his knees, and appellant was forcing himself on top of her. Arlene told appellant to stop and that he should not hurt people.
Olivas grabbed a pipe and Winfrey grabbed a bicycle pump. Olivas hit appellant twice with the pipe while appellant was on top of Arlene. Appellant stood and Winfrey hit him with the pump. Appellant assaulted Winfrey, she fell, and appellant and Olivas fought. While appellant and Olivas were fighting, appellant said he was doing this for God’s angels, he was God’s gift, and he could not be hurt. Arlene escaped but suffered bruises on her face, neck, and shoulders.
On the night of August 17, 2007, Robert Lecrone was driving in the area when he saw Arlene. She was wearing a bra but was otherwise nude. She ran towards him, screaming and waving her hands, and began hitting his truck. He lowered his window and she started screaming for help. Lecrone opened his door and began to exit. Arlene jumped in Lecrone’s truck, huddled in the passenger side corner, and repeatedly told him to drive. Arlene had blood all over her. While Lecrone was calling the sheriff’s department, Arlene jumped out of his truck, ran towards a trash can, and hid. Police found Arlene there covering herself with a box.
On the evening of August 17, 2007, Shannon Lage lived nearby and was sitting on the front porch of a friend’s apartment when appellant approached her. Appellant told Lage that he was framed, he was set up, and he did not do it. Appellant showed Lage a very large cut on his wrist and his clothes were covered in blood. A critical care nurse at Antelope Valley Hospital examined Arlene and observed redness around Arlene’s vaginal opening. Appellant’s DNA was found on Arlene’s neck and bed.
2. Defense Evidence.
In defense, appellant, who had suffered convictions for first degree burglary and possession of drugs for sale, testified he had known Arlene since 2005. He recalled the August 17, 2007 incident. He had been drinking vodka heavily prior to the incident, and he cut his wrist after slamming the vodka bottle on the ground. He went to Arlene to ask for help. He sat by her on the bed and showed her his hand. Arlene stood and left, and appellant followed her.
Appellant grabbed Arlene’s shoulder and fell. Shortly thereafter, someone hit him in the back with a pipe or stick. Appellant stood and began swinging at the person. Appellant denied taking his pants down or Arlene’s pants down, and denied trying to have sex with her. A nurse in charge of the psychiatric unit at the hospital wrote in her report that Arlene was “ ‘paranoid of staff, stating they are trying to kill her.’ ” Arlene probably said this to the nurse.
3. Rebuttal Evidence.
A detective testified he interviewed appellant on August 21, 2007, and appellant gave different versions of what happened. Appellant first denied being there and denied knowledge about, or involvement in, the incident. After the detective indicated that persons saw appellant in the area, appellant changed his statement. He said he was in the area but that he was drinking behind a motel. Appellant later changed his statement and said he had argued with two people and fought.
In appellant’s final version to the detective, appellant said he entered the tunnel, met a woman, and they sat and talked about having sex for money. He agreed to pay $40 and began to undress. The woman said to wait a minute, then began exiting the tunnel. They argued and began pushing each other. They exited the tunnel, he got on top of her and pulled down his pants, and he tried to put his erect penis in her vagina. At some point someone hit appellant and he began fighting that person. Appellant left, ran to a motel, then ran to apartments where Lage saw him. Appellant then began running home.
CONTENTION
Appellant claims the trial court reversibly erred by giving CALJIC No. 2.71.5, without giving CALJIC No. 2.72.
DISCUSSION
The Trial Court Did Not Reversibly Err By Failing to Give CALJIC No. 2.72.
The trial court, using CALJIC No. 2.71.5, instructed the jury on adoptive admissions and silence, or a false or evasive reply to an accusation. However, the trial court did not give CALJIC No. 2.72, which indicates that the corpus delicti must be proven independent of an admission or confession. CALJIC No. 2.72 states, in relevant part, “No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession] [or] [admission] made by [him] [her] outside of this trial. The identity of the person who is alleged to have committed a crime is not an element of the crime.... The identity... may be established by [a] [an] [confession] [or] [admission].”
CALJIC No. 2.71.5, stated, “If you should find from the evidence that there was an occasion when the defendant, one, under conditions which reasonably afforded him an opportunity to reply, two, made false, evasive or contradictory statements in the face of an accusation, expressed directly to him or in his presence, charging him with a crime for which this defendant now is on trial, or tending to connect him with its commission, and three, that he heard the accusation and understood its nature, then the circumstance of his conduct on that occasion may be considered against him as indicating an admission that the accusation was true. Evidence of an accusatory statement is not received for the purpose of proving its truth but only as it supplies meaning to the conduct of the accused in the face of it. Unless you find that the defendant’s conduct at the time indicated an admission that the accusatory statement was true, you must entirely disregard the statement.”
Appellant claims the trial court’s failure to give CALJIC No. 2.72 was reversible error. We disagree. The corpus delicti rule “requires that the corpus delicti of a crime be proved independently from an accused’s extrajudicial [statements]. [Citations.] ‘The corpus delicti of a crime consists of two elements, the fact of the injury or loss or harm, and the existence of a criminal agency as its cause.’ [Citation.] Such proof, however, may be circumstantial and need only be a slight or prima facie showing ‘permitting the reasonable inference that a crime was committed.’ ” (People v. Jennings (1991) 53 Cal.3d 334, 364.) The identity of the defendant as the perpetrator of a crime is not part of the corpus delicti. (People v. Valencia (2008) 43 Cal.4th 268, 297.)
Moreover, “[e]rror in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1181 (Alvarez).) Further, “[i]f, as a matter of law, this ‘slight or prima facie’ showing was made, a rational jury, properly instructed, could not have found otherwise, and the omission of an independent-proof instruction is necessarily harmless.” (Id. at p. 1181.)
In the present case, appellant does not clearly identify the extrajudicial statements which he claims were subject to the corpus delicti rule. However, the rule does not apply to statements that are part of the crime itself. (People v. Carpenter (1997) 15 Cal.4th 312, 393-394; In re I. M. (2005) 125 Cal.App.4th 1195, 1203-1204.)
To the extent appellant claims the corpus delicti rule applied to extrajudicial statements he made before Arlene F. escaped and appellant left the area of her tunnel, we reject the claim. Those statements were part of the crime itself; therefore, the corpus delicti rule did not apply to them.
To the extent appellant claims the corpus delicti rule applied to extrajudicial statements he made after he left the area of Arlene’s tunnel, i.e., statements he made to Lage and the detective, there is no need to reverse the judgment. Leaving aside those statements (indeed, any statements by him), we conclude there was ample evidence that appellant jumped in Arlene’s bed, pulled his pants down, choked her and pulled her pants off, forced himself on top of her, and, while struggling with and hurting her, rubbed his penis against her vagina. She escaped with several bruises on her face, neck, and shoulders. She escaped only through the intervention of Olivas and Winfrey, and was later seen nearly nude in the middle of the street and screaming for help. At the hospital, a critical care nurse observed redness around Arlene’s vaginal opening.
We conclude that, leaving aside any statements made by appellant, there was ample evidence of the corpus delicti of the crimes of which he was convicted; therefore, there appears no reasonable probability the jury would have reached a result more favorable to appellant had CALJIC No. 2.72 been given. (People v. Watson (1956) 46 Cal.2d 818, 836.) Indeed, we conclude that a slight or prima facie showing was made as a matter of law, a rational jury, properly instructed, could not have found otherwise, and the trial court’s failure to give CALJIC No. 2.72 was necessarily harmless. (Alvarez, supra, 27 Cal.4th at p. 1181.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J.CROSKEY, J.