Opinion
No. B161655.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. MEKO GOODLEY, Defendant and Appellant.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan, Supervising Deputy Attorney General, and Deborah J. Chuang, Deputy Attorney General, for Plaintiff and Respondent.
Meko Goodley was convicted of aiding and abetting an unlawful oral copulation by an inmate in a local detention facility. (Pen. Code, § 288a, subd. (e).) Goodley was sentenced to state prison for a term of three years.
Undesignated section references are to the Penal Code. Subdivision (e) of section 288a provides: "Any person who participates in an act of oral copulation while confined in any state prison . . . or in any local detention facility . . . shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year."
He appeals, contending section 289.6 "was specifically enacted to cover [his] conduct," and that subdivision (e) of section 288a was not intended to apply to the facts of this case. We disagree, reject his related claims of error, and affirm the judgment.
Subdivision (a)(2) of section 289.6 provides: "An employee or officer of a public entity detention facility, or an employee, officer, or agent of a private person or entity that provides a detention facility or staff for a detention facility, or person or agent of a public or private entity under contract with a detention facility, or a volunteer of a private or public entity detention facility, who engages in sexual activity with a consenting adult who is confined in a detention facility, is guilty of a public offense."
FACTS
Goodley worked as a custody assistant at the medical services building of the Los Angeles County jail. On February 23, 1999, he escorted Lisa W., an inmate, to the visiting area and instructed her to sit in a corner. Goodley said he "bet" Lisa really wanted to see her mother, asked what she was "going to do for him," and asked her to show him her breasts. Lisa lifted up her jail shirt and bra and Goodley touched her breasts, one at a time. Goodley then told Lisa he wanted her to orally copulate him. Lisa was frightened and looked around for a camera or another person to "save" her, but saw nothing. Goodley sat on a ledge in the corner and forced his penis into Lisas mouth, holding her head in place until he ejaculated. After he zipped up his pants, he said, "Youre not going to tell, are you?" She said she would not. The next day, she wrote about the incident in her journal but did not tell anyone about it until several months later, at which time she told her psychiatrist (and later talked to a deputy sheriff).
Lisa identified Goodley from a photographic array. When Goodley was interviewed, he acknowledged that he had been assigned to the medical services building when Lisa was there, and he told the officer he remembered Lisas name. Goodley was arrested, and charged by amended information with a violation of section 288a, subdivision (e). At trial, the People presented evidence of the facts summarized above, and evidence that Goodley had raped a former girlfriend in 1993. The jury was instructed on aiding and abetting, and it was on that basis that he was convicted.
DISCUSSION
I.
The People tried the case on the theory that Lisa, while confined in jail, committed an act of oral copulation on Goodley, and that Goodley aided and abetted her commission of the act. Goodleys argument on this appeal is that, because he was a jail employee, his conduct was regulated by section 289.6, and that he could only be prosecuted under section 289.6. We disagree.
A person may be convicted as an aider and abettor notwithstanding that he would be incapable of committing the crime himself (People v. Fraize (1995) 36 Cal.App.4th 1722, 1725), and a person who is not an inmate may be convicted of aiding and abetting a violation of subdivision (e) of section 288a (id. at pp. 1725-1726). Goodley nevertheless claims that because both statutes cover "consensual" oral copulation in jails — section 289.6, subdivision (a)(2), by making it a crime for a jail employee to engage "in sexual activity with a consenting adult who is confined" to the facility, and section 288a, subdivision (e), by making it a crime for any person to participate in any act of oral copulation while that person is confined in a jail — he had to be prosecuted under section 289.6.
Although the issue of consent is irrelevant to our resolution of this issue, we note for the record the absence of any evidence suggesting that Lisas acts were consensual within the meaning of a criminal statute.
But the only authority Goodley offers for this notion is a citation to People v. West (1991) 226 Cal. App. 3d 892, 277 Cal. Rptr. 237, which is inapposite for the simple reason that the defendant in West was not prosecuted as an aider and abettor but rather for the substantive crime itself. The defendant in West, a jail employee, was prosecuted for sodomy under subdivision (e) of section 286, which made it a crime for a confined person to participate in an act of sodomy; since the jail employee was not confined, he could not be convicted of sodomizing an inmate. (Id. at pp. 898-899.) All that means is that (under section 288a, subdivision (e)) Goodley could not be convicted of the substantive act of orally copulating Lisa; it does not mean that he cannot be convicted as an aider and abettor. For that reason, we reject Goodleys suggestion that we should follow West on the theory that Fraize was "decided incorrectly, and should not be followed."
II.
We reject Goodleys contention that the judgment must be reversed because the trial court should have instructed the jury that, if the crime was committed by anyone, Lisa was an accomplice as a matter of law (CALJIC No. 3.16). Instead, the jurors were instructed (at Goodleys request) according to CALJIC No. 3.19, that they were to "determine whether [Lisa] was an accomplice as [the court had] defined that term. The defendant has the burden of proving by a preponderance of the evidence that Lisa[] was an accomplice in the crime charged. . . ." Leaving to one side the fact that no objection was raised below and the issue was thereby waived (People v. Cortez (1981) 115 Cal. App. 3d 395, 407, 171 Cal. Rptr. 418), and assuming error, the error was plainly harmless. Since the jurors convicted Goodley as an aider and abettor, they necessarily found that Lisa was an accomplice. (People v. DeJesus (1995) 38 Cal.App.4th 1, 23; People v. Carpenter (1997) 15 Cal.4th 312, 393, 935 P.2d 708.)
III.
Goodley contends there is insufficient evidence to corroborate Lisas testimony. We disagree. In addition to Lisas testimony, there was testimony by Sergeant Gilbert Duron, a jail supervisor, that Goodley worked as a custody assistant at the medical services building on February 23, 1999, that he was on duty during the hours that Lisa went to the visiting area, and that he was the only custody assistant assigned to the visiting area at that time. And in addition to that, there were Goodleys statements to the police more than a year after the incident, at which time he remembered Lisas name and remembered that he had escorted her to the visiting area. No more was required. (People v. Williams (1997) 16 Cal.4th 635, 680-681, 941 P.2d 752; People v. Hayes (1999) 21 Cal.4th 1211, 1271, 989 P.2d 645.)
IV.
Goodley contends the trial court should not have admitted evidence that he had raped a former girlfriend, Niema J., in 1993. We disagree.
The jurors heard that Goodley went to Niemas house when she was home alone, forcibly raped her, then left. Niema reported the attack and was examined at a hospital, where she gave the police a recorded statement. A police report was filed, and Niema thereafter obtained a restraining order against Goodley, but then concluded the District Attorneys office was not "going to fight the case through" and the charges were dropped.
Evidence Code section 1108 gives the trial court discretion to admit evidence of another sexual offense in a case such as this and the only question before us is whether that discretion was abused. (Evid. Code, §§ 1108, subds. (a), (d), 352; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, 885 P.2d 1; People v. Welch (1993) 5 Cal.4th 228, 234, 851 P.2d 802; People v. Karis (1988) 46 Cal.3d 612, 638, 250 Cal. Rptr. 659, 758 P.2d 1189; People v. Fitch (1997) 55 Cal.App.4th 172, 178-179 [the Legislature has determined that evidence of a prior sex offense is highly probative in a prosecution for another sex offense].)
We see no abuse of discretion. In both cases, Goodley committed his crimes when the women were isolated, and he took advantage of their isolation to obtain sexual gratification. As the trial court put it, both incidents involved a breach of trust — in the 1993 incident, Goodley used his friendship with the victim to gain access to her house when she was home alone, and in this incident he used his employment status to isolate Lisa. As for prejudice, there was no more than that attendant to the admission of any prior offense, and we see nothing unduly prejudicial in this case. In short, the trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
SPENCER, P.J., ORTEGA, J., we concur.