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People v. Cortez

Court of Appeals of California, Sixth District.
Nov 10, 2003
No. H025211 (Cal. Ct. App. Nov. 10, 2003)

Opinion

H025211.

11-10-2003

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CORTEZ, Defendant and Appellant.


Defendant was convicted by jury trial of one count of rape (Pen. Code, § 261, subd. (a)(2)) and two counts of false personation (Pen. Code, § 529). The jury also found true an allegation that defendant had known that the rape victim was deaf (Pen. Code, § 667.9, subd. (a)). The jury deadlocked on a second count of rape, a sexual battery (Pen. Code, § 242, 243.4, subd. (a)) count and enhancement allegations that defendant had kidnapped the rape victim (Pen. Code, § 667.61, subds. (a), (b), (d), (e)). The court committed defendant to state prison for a term of nine years. On appeal, defendant contends that the trial court prejudicially erred with respect to the rape count by failing to (1) give a unanimity instruction, (2) define "force" sua sponte and (3) instruct on the lesser offense of simple battery. We reject his contentions and affirm the judgment.

I. The Prosecutions Case At Trial

On January 7, 2000, 19-year-old Elsa D. went to a light rail station in San Jose enroute to a job interview. Elsa had been deaf since the age of five, and she had only a very limited ability to speak. Defendant, who was a stranger to her, approached her and asked if she had quarters. She was able to discern his question by reading his lips, though she was not a fluent lip reader. She gestured to indicate that she was deaf and wrote a note asking him what the coins were for. Defendant indicated that the coins were for the light rail. Elsa did not give him any coins, but he stood next to her as she waited for the train. Elsa wrote a note asking for his name, and defendant wrote that his name was Anthony. She also asked him how old he was and where he went to school. Defendant told her he was 21 years old. He asked her similar questions, and she told him that she was going to a job interview.

Eventually, they boarded a train. Defendant sat "really close" to her and continued to communicate with her. Defendant was six feet tall and weighed 180 pounds, while Elsa was just an inch over five feet tall and weighed 110 pounds. While they were on the train, defendant kissed Elsa on the cheek even though she had already told him that she was engaged. When she reached her destination, Elsa got off the train, and defendant walked beside her, and for part of the time held her hand, as she walked to her job interview. During the job interview, defendant sat next to her and tried to hold her hand. The interviewer thought it was odd when defendant hugged Elsa during the interview, but Elsa was smiling when defendant hugged her and the interviewer assumed that they were a couple.

Elsa testified that defendant blocked her from boarding two trains before they finally boarded a third train. At the time, she "thought perhaps he thought perhaps this was a funny joke." Defendants cousin testified that she was present at the light rail station at the time, and defendant did not prevent Elsa from boarding any trains. Defendants cousin testified that Elsa was standing about five feet away from defendant, very close to the train, while defendant was talking to the cousin, and Elsa appeared to be waiting for defendant. Defendant testified at trial that he had not prevented Elsa from boarding any trains.

After the job interview, Elsa left the building where the interview had occurred, and defendant continued to follow her. She wanted to escape from him, but she did not communicate this to defendant. Defendant grabbed her arm and tried to pull her into a nearby building. She used facial expressions and mouth movements to question defendants actions. Defendant then grabbed the "very expensive" leather jacket she was carrying, let go of her arm and took the jacket with him into the nearby building.

Elsa was scared, but she followed defendant because she wanted to retrieve her jacket. Defendant went upstairs to the second floor of the building. Elsa tried to pull her jacket out of defendants grasp, and he pushed her into a chair. She regained possession of her jacket, but she could not get out of the chair since defendant was holding her there. Defendant knelt in front of her and touched her vagina over her clothes. She unsuccessfully tried to push him away, but she did not kick him because she was afraid he would hit her. A man walked by, but defendant did not desist and Elsa did nothing to attract the mans attention. Elsa used her voice to say no several times though it was "tough" to do so.

Eventually, Elsa was able to push defendant away and get up from the chair. She did not again attempt to use her voice. She headed toward the stairs, but defendant blocked her way and grabbed her arms. He pulled her to the door to a mens bathroom. Defendant used his hands and his body to push her into the bathroom even though she was pushing back against him. He pushed her into a corner of the bathroom with her face to the corner and him behind her. Defendant pulled her pants and underwear down, and she struggled to pull them back up. Defendant "won," and her pants were pulled down to her knees.

At trial, Elsa gave inconsistent testimony about whether she had used her voice again in the bathroom. At one point, she testified that she had not used her voice at all. At another point, she testified that she had screamed and said "[n]o" while in the bathroom.

Defendant put his erect penis in her vagina. His hands were on her back pushing her toward the wall. The lights in the bathroom were off, and Elsa could not see what defendant was doing. Elsa stopped struggling because she was "extremely afraid," and it was "very extremely painful." This continued for about a minute until, due to the pain, she "gave up," pushed defendant back, "laid down on the floor" and allowed defendant to proceed to have sex with her a second time on the floor. The second sex act lasted less than a minute.

Elsa got up, cleaned herself up and left the bathroom. Defendant followed her. Once they were outside the building, Elsa asked defendant for his last name and birth date, and he told her his last name was "Hernandez" and his birth date was August 11, 1979. Defendant walked away "very fast." Elsa immediately went into a nearby business, contacted the police and reported that she had been raped. When the police arrived, Elsa was "visibly shaken," "very upset" and crying.

This was apparently defendants correct birth date.

A medical examination of Elsa four or five hours after the incident revealed a "pretty significant" amount of trauma to Elsas sexual organs including a tear and fresh bleeding. Sexual intercourse between two individuals of significantly different heights while standing up might produce this type of trauma. This trauma was evidence of "something pretty forceful," and this level of trauma was unusual even for a rape victim. This injury was inconsistent with consensual intercourse. Elsa did not suffer any bruises or other injuries to the remainder of her body. None of her clothing had been torn or otherwise damaged. Sperm was found in Elsas vagina.

The police located an individual named Anthony Hernandez with a birth date of August 11, 1978 and arrested him. Although Elsa initially positively identified a photograph of Hernandez as the man who had raped her, it was subsequently determined that Hernandez did not look like the photo and did not meet Elsas description of the rapist. Hernandez was also eliminated as a possible source of the semen in Elsas vagina. He was released after spending a weekend in jail.

In June 2000, Elsa saw defendant at a light rail station and notified a nearby police officer that defendant had raped her in January. Defendant was arrested. He told the police that his name was Frank Hernandez and provided a birth date of January 14, 1980. This name and birth date were those of a cousin of defendant who looked like defendant. Defendant was fingerprinted, and his true identity was discovered. His true birth date was August 11, 1979. Defendant was identified as the source of the sperm found in Elsas vagina.

In a statement to the police three weeks after his arrest, defendant said that Elsa "seemed like a `ho to me" by which he explained he meant that he believed she was "[e]asy." He stated that, after entering the bathroom, Elsa turned off the lights and took off her bra. Defendant admitted that he had been aware that Elsa could neither hear nor speak.

II. The Defense Case At Trial

The defense asserted at trial that Elsa had consented or that defendant had made a reasonable mistake of fact in believing that she consented. Defendant testified that he had first kissed Elsa at the light rail station, shortly after meeting her, after asking her in a note whether he could do so. Once they got on the train, he asked Elsa in another note to show him her breasts, and she pulled up her blouse and bra and showed him her breasts. He held her hand as they walked to the job interview. While they were at the job interview, defendant wrote Elsa a note asking her to have sex with him after the interview, and she wrote back "yeah." After the interview, they left the building where the interview had taken place and held hands as they walked into a nearby building. Upstairs in that building, Elsa sat in a chair, and defendant kissed her in "passionate foreplay" for two or three minutes. He rubbed her vagina, and she did nothing to indicate that she did not consent to these actions. However, when a man walked by, Elsa became embarrassed, pushed defendant away, said "no" and wrote a note saying "this aint the place."

Elsa grabbed her purse and left the building, but she left her jacket behind. Defendant grabbed her jacket and followed her. She sat down on a wall outside, and defendant threw the jacket at her. She asked him what was wrong, and they wrote notes for a few minutes. He accused her of leading him on by promising to have sex with him and not following through. She asked him if he had a condom, and he replied that he did. Elsa then agreed to have sex with him. They went back into the building, and she led the way back upstairs.

Elsa stood with her back to the wall next to the mens bathroom, and they "were kissing for a little bit." Defendant then opened the door to the bathroom and walked into the bathroom. Elsa followed him. They resumed kissing, and Elsa turned off the bathroom light. Elsa grabbed defendants "groin area" and rubbed his penis through his clothing. She pulled down her pants, and they had sex first standing up. Because this was "terribly uncomfortable," they stopped having sex standing up and resumed having sex on the floor. They had sex for about 15 minutes on the floor. While they were having sex on the floor, the condom broke. After they had had sex, Elsa pulled up her pants, and defendant washed up. Defendant testified that Elsa had consented and wanted to have sex with him. She did nothing to indicate that she was afraid of him or that she did not consent to their sexual activities.

Defendant and Elsa left the bathroom and went back outside. They hugged and kissed some more. Defendant asked Elsa for money, and she gave him $5. She asked for his name, birth date and telephone number, and he provided that information except that he did not provide his correct last name. Instead, he told her that his name was Anthony Hernandez. He hugged her, and they walked away from each other. Defendant saw Elsa walk into a nearby building.

Defendant asserted that he had described Elsa as a "ho" after his arrest because he was angry that he had been falsely accused of raping her. He admitted lying to the police about his identity at the time of his arrest, and he claimed that he had done so because there was a warrant out for his arrest. However, he also claimed that there was a warrant out for his cousins arrest for which he was responsible. Defendant conceded that he looked a lot like his cousin.

III. Procedural Background

Defendant was charged by information with sexual battery (Pen. Code, § 242, 243.4, subd. (a)), two counts of rape (Pen. Code, § 261, subd. (a)(2)) and two counts of false personation (Pen. Code, § 529). It was further alleged as to the rape counts that defendant had known Elsa was deaf (Pen. Code, § 667.9, subd. (a)) and that he had kidnapped Elsa (Pen. Code, § 667.61, subds. (a), (b), (d), (e)).

Defendants trial counsel argued that Elsa had consented and that defendant was merely guilty of "sloppy sex" because the intercourse while standing up had caused injury to Elsa. He also asserted that Elsa had never "communicate[d]" to defendant that she did not consent.

The jury deliberated for more than one day before reporting that it had reached verdicts on three counts but was deadlocked on the other two counts. The jury thereafter returned guilty verdicts on one rape count and both false personation counts. It also found true the deaf victim allegation. The jury deadlocked on the other rape count, the sexual battery count and the kidnapping allegations, and the court declared a mistrial as to those counts and allegations. The court committed defendant to state prison for a term of nine years. Defendant filed a timely notice of appeal.

IV. Discussion

A. Lack of Unanimity Instruction

Defendant claims that the trial court prejudicially erred in failing give a unanimity instruction as to the two rape counts.

1. Background

Defendant has not provided us with a record of the prosecutors opening statement. The trial courts instructions, given before closing arguments, did not distinguish between the acts upon which the two rape counts were based. During his opening argument to the jury, the prosecutor expressly identified the specific acts that formed the basis for each of the two rape counts. "Defendant is charged with two counts of rape and well get into the specifics of that in a second. One when she was standing in the corner, one when she was lying on the floor." "Count Two is when shes in pain and her back is being pushed against that wall and hes jamming his penis inside her, that is count two. [¶] In Count Three, is when she surrendered and couldnt take the pain any more." At the conclusion of the arguments, the court instructed the jury "each count charges a distinct crime. You must decide each count separately." When the jury reported that it was deadlocked on some counts, the court repeated that instruction.

2. Analysis

"[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132, emphasis added.) "The alternative to giving the jury a unanimity instruction is for the prosecution to elect a single act for each charge." (People v. Diaz (1987) 195 Cal.App.3d 1375, 1381.) Defendant concedes that the prosecution made an election in his opening argument to the jury, but he claims that this election was inadequate and a unanimity instruction was still required.

Neither of the cases defendant relies upon in his opening brief support his contention. People v. King (1991) 231 Cal.App.3d 493 did not involve an election by the prosecutor, and instead merely held that "absent an election by the People" a unanimity instruction was required. (King at pp. 501-502, emphasis added.) The same is true of People v. Thompson (1995) 36 Cal.App.4th 843 where the prosecutor made no election. (Thompson at p. 851.) In his reply brief, defendant, citing People v. Melhado (1998) 60 Cal.App.4th 1529 (cited by the Attorney General in his response brief), again argues that the prosecutors election was inadequate. Melhado provides no support for his contention. In Melhado, a unanimity instruction should have been given because the prosecutor never informed the jury of his election but only told the court and counsel of the election outside the jurys presence. (Melhado at p. 1535.) In contrast, here the prosecutor unambiguously informed the jury of his election in his opening argument. We find no inadequacy in this election as it clearly informed the jury of the specific acts to which each count pertained. Because the prosecutor made an adequate election in his opening argument, no unanimity instruction was required.

To the extent that defendant may be insinuating that the election was untimely, he has failed to support his contention because he did not provide this court with a record of the prosecutors opening statement. Moreover, we believe that an election in opening argument is a timely one.

B. Lack of Specialized Force Instruction

Defendant claims that the trial court prejudicially erred in failing to give a specialized force instruction telling the jury that the "force" necessary to support a rape count must be "substantially different from or substantially greater than that necessary to accomplish the lewd act itself."

This issue is currently before the California Supreme Court in People v. Griffin (rev. gtd. 10-23-02 (S109734)).

1. Background

The instructions on the rape counts identified each of the elements of rape. "Every person who engages in an act of sexual intercourse with another person, who is not the spouse of the perpetrator, accomplished against that persons will, by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury to that person, is guilty of the crime of rape . . . ." The court defined "against that persons will," "menace" and "duress." And it itemized the elements of rape. "In order to prove this crime, each of the following elements must be proved: [¶] One, a male and female engaged in an act of sexual intercourse. [¶] Two, two persons were not married to each other at the time of the act of sexual intercourse. [¶] Three, the act of intercourse was against the will of the alleged victim; [¶] Four, the act was accomplished by means of force, violence, duress, menace or fear [of] immediate and unlawful bodily injury to the alleged victim."

2. Analysis

"A defendant uses `force if the prohibited act is facilitated by the defendants use of physical violence, compulsion or constraint against the victim other than, or in addition to, the physical contact which is inherent in the prohibited act." (People v. Bolander (1994) 23 Cal.App.4th 155, 164 (Mihara, J. concurring).) "The evidentiary key to whether an act was forcible is not whether the distinction between the `force used to accomplish the prohibited act and the physical contact inherent in that act can be termed `substantial. Instead, an act is forcible if force facilitated the act rather than being merely incidental to the act." (Id. at pp. 163-164.) As the role that "force" plays in a sexual assault case is no different than the role it plays in a robbery case, "there is no need for a jury instruction defining [the role of] force." (Id. at p. 164.)

Rational jurors would readily understand from the trial courts instructions on the elements of rape that "force" requires proof of "defendants use of physical violence, compulsion or constraint against the victim other than, or in addition to, the physical contact which is inherent in the prohibited act" (id. at p. 163) because the act of sexual intercourse was one element of the offense and "force" (or fear or duress or menace) was a separate element of the offense. No one would have misunderstood these instructions to permit a guilty verdict based on no more "force" than is inherent in an act of sexual intercourse. Hence, no specialized instruction regarding "force" was necessary, and the trial court did not err in failing to give one.

C. Lack of Simple Battery Instruction

Defendant maintains that the trial court prejudicially erred in failing to instruct the jury on simple battery as a lesser included offense of rape.

Although simple battery is a lesser included offense of forcible rape (People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1636), "[a] trial court must instruct on a lesser included offense only if there is substantial evidence to support a jurys determination that the defendant was in fact only guilty of the lesser offense." (People v. Williams (1997) 16 Cal.4th 153, 227, quotation marks and citation omitted, emphasis added.)

"A battery is any willful and unlawful use of force or violence upon the person of another." (Pen. Code, § 242.) The evidence presented at trial did not include substantial evidence that could support a jury finding that defendant merely used unlawful force on Elsa but did not rape her. The only defenses asserted at trial were actual consent and reasonable but mistaken belief in consent. Defendant testified that he and Elsa engaged in mutually desired sexual intercourse. He also testified that Elsa gave him no indication that she did not desire intercourse. Elsa testified that she did not consent to the sexual intercourse and capitulated out of fear. On this record, only two conclusions were supported by substantial evidence. The jury could have believed defendant and found that he committed neither rape nor battery. Alternatively, the jury could credit Elsas testimony and find defendant guilty of rape. There was no middle ground in the evidence that could have permitted a rational jury to conclude that defendant did not rape Elsa but did use unlawful force on her when he had sex with her on the floor. Consequently, the trial court did not err in failing to instruct on simple battery.

V. Disposition

The judgment is affirmed.

WE CONCUR: Rushing, P.J. and Wunderlich, J.


Summaries of

People v. Cortez

Court of Appeals of California, Sixth District.
Nov 10, 2003
No. H025211 (Cal. Ct. App. Nov. 10, 2003)
Case details for

People v. Cortez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CORTEZ, Defendant and…

Court:Court of Appeals of California, Sixth District.

Date published: Nov 10, 2003

Citations

No. H025211 (Cal. Ct. App. Nov. 10, 2003)