Opinion
2d Crim. No. B186261
9-17-2007
THE PEOPLE, Plaintiff and Respondent, v. KENT WESLEY KAFATIA, Defendant and Appellant.
Raymond L. Girard, 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, Senior Assistant Attorney General, Chung L. Mar, Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Kent Wesley Kafatia appeals from the judgment following his jury trial and conviction of forcible rape and misdemeanor false imprisonment. (Pen. Code, §§ 261, subd. (a)(2), 236.) The trial court sentenced appellant to an eight-year upper term sentence for forcible rape, with a concurrent one-year term for false imprisonment. Appellant contends that the trial court committed instructional and sentencing errors. We affirm.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
Appellant worked as a security officer at Santa Barbara City College (SBCC) from May 31, 2002 through November 14, 2004. SBCC security employees wore distinctive red shirts, or red windbreakers, with lettering identifying them as security personnel. The campus closed nightly from 10:15 p.m. until 6:30 a.m. Security employees were trained to question but not physically detain people who were on campus after hours. In October and November 2004, appellant worked the weekend night shift with another employee. SBCC provided the night shift with a forest green Nissan four-door truck.
The October 30, 2004, False Imprisonment
Allyson G., a 21-year old SBCC student, lived near the SBCC campus. Allyson celebrated Halloween with several friends on the evening of Saturday, October 30, 2004. She walked home some time after 12:30 a.m. and found that one of her housemates was asleep in her bed. At 1:59 a.m. (on October 31), she called another friend, Walker, who lived on the other side of SBCC, and arranged to meet him on campus near the Loma Alta bridge. As she walked toward campus, a man, driving in a green truck, said something to her, but she ignored him.
While walking on a dark, wooded path leading to the campus, Allyson saw appellant standing about 20 feet from her, beside the path, with his head down. She was afraid but continued walking because he was too close for her to escape. As she was about to pass him, he forcibly grabbed her left arm. She tried to "jerk" herself free, but he pulled her back and asked for her name. He asked other questions, and she first responded that it was not his business. Appellant gripped her more firmly and kept questioning her, without identifying himself as a security officer. He was not wearing a security shirt or jacket. Allyson was frightened and certain that she would be raped. She could not leave because appellant continued to hold her arm firmly.
Hoping to scare appellant, Allyson told him she was meeting a friend who would arrive any minute. Appellant continued questioning her and used a more forceful grip when she hesitated with an answer. When appellant asked Allyson what she studied at SBCC, she said that she studied psychology because she wanted to help people. Allyson started crying, looked appellant "in the eye," and asked him to "let [her] go." Appellant then loosened his grip on her arm. After further pleas, he released her arm. Allyson thanked appellant and began walking away, but he remained behind her, within three to five feet. He said, "Just because Im letting you go doesnt mean that youre safe yet. Youre not safe." She tried pressing the send button on her cell phone to alert Walker. Appellant said that he knew she was trying to reach the last person she had called and told her, "Thats very smart, but its not going to work." His comments increased her fear.
Appellant followed Allyson until they reached the end of the path, which was partially blocked by a green SBCC security truck. When appellant did not seem fazed by the sight of that truck, Allyson recognized that he was a security employee and the same person who had called to her earlier from that truck, and she panicked. Allyson began crossing campus, and appellant remained close behind her. She kept repeating that her friend would be there any minute. When she reached the area of the Loma Alta bridge, appellant said, "Okay. Youre safe now. You can go." Allyson walked until she felt that it was safe to run. At 2:17 a.m., Walker telephoned Allyson, just before he met her on campus. Allyson was in "hysterics" and told him that she had almost been raped. Walker dissuaded her from calling the police.
The November 14, 2004, Forcible Rape
On Saturday, November 13, 2004, Natasha D. accompanied friends throughout the evening from approximately 9:30 p.m., until 2:15 a.m. the next morning. They went to the home of a friend where Natasha had two vodka-tonic drinks. They then met other friends at the Fish House restaurant and went to a party at another home, where Natasha drank more vodka-tonic drinks. Several hours later, they returned to the Fish House, where they met other friends, including Natashas roommate, Tessa. Natasha and Tessa lived west of the SBCC campus, on Oceano Street, approximately a mile from the Fish House. Natasha was exhausted and she decided to walk home instead of waiting to ride with Tessa. She tried to call Tessa and another friend before she left.
Natasha walked down Cabrillo Boulevard, toward State Street. When Tessa returned her call, at 2:39 a.m., Natasha said she was walking home and asked Tessa to pick her up. Appellant pulled up, driving in a campus security truck, and offered Natasha a ride home as she walked on Cabrillo. Natasha recognized the campus security truck, knew security officers escorted students on campus, accepted the ride, and thanked appellant. She told him she lived near the intersection of Oceano and Del Mar Streets. He drove in that direction.
When appellant drove beyond Del Mar Street, Natasha commented that he had passed her street. He drove to the next street, Del Sol, and pulled over to the side of the road in a very dark area. Natasha said that "he could either take [her] home or [she] could get out and walk." Appellant locked the truck doors, leaned over, and tried to kiss Natasha. She objected and reached for the door. Appellant changed his "nice" demeanor and used a "threatening," "scary" voice to say, "Dont move. Do you want to get shot?" Because she was afraid, Natasha did not move, but objected to his advances. Appellant said, "Do you want to die?" and climbed to her side of the truck. He placed himself in front of Natasha, kissed her cheek, and groped her breasts and the area below her waist. Natasha cried and asked why appellant was "doing this [to her]." He told her to "shut up," and he removed and discarded her underwear. Appellant unzipped his pants and "started to have sex with [her]." Natasha reached for her purse, which held her cell phone. She then unlocked the door, kicked it open, and jumped out of the truck without her shoes or underwear.
As soon as she escaped, Natasha started screaming and reaching for her cell phone. Appellant drove away quickly. Several nearby residents heard Natasha outside. One man heard her say, "Oh my God. I just got raped. I cant believe it." Two residents brought Natasha into their home, called 911, and helped her call her mother.
People who spoke with Natasha early on November 14, including Santa Barbara police officers, did not observe "objective symptoms" that she was under the influence of alcohol other than a "strong odor of an alcoholic beverage" around her. After learning that Natashas assailant was driving a SBCC security vehicle, Officer Bryan Jensen went to SBCC. He questioned appellant, who initially denied having had any contact with any intoxicated female on Cabrillo Boulevard. Another officer drove Natasha to the SBCC campus, where she identified appellant and the truck that he had been driving.
Officer Jensen arrested appellant. While in custody, appellant twice telephoned his friend, Marjorie Nilson. While speaking with her, appellant admitted that he had done "something that could really screw up [his] life."
Santa Barbara Police Detective Jaycee Hunter later interviewed Natasha and separately interviewed appellant. Appellant told Hunter that when he saw Natasha on Cabrillo, she asked if he would drive her to Oceano Street and entered his truck when he agreed to do so. When he was near Oceano Street, he stopped the truck and asked if they were near her destination. Natasha responded by kissing his cheek and asking him to "drive up a little." After he drove a bit further, Natasha touched his arm, he touched her hair, and they began kissing. As they kissed, appellant moved to the passenger side of the truck, touched Natashas breasts and put his hand between her legs. Natasha removed her panties, and he put his penis into her vagina. At that point, Natasha objected, and appellant stopped. Natasha opened the door, left the truck, and walked away. Appellant returned to work. Appellant told Hunter that he did not lock the truck doors or "force" himself on Natasha. He also stated that he would not have been "dumb" enough to "tak[e] advantage" of a girl while driving a marked security truck and wearing a security uniform that made him easily identifiable.
After appellant learned that he would be charged with rape, Detective Hunter offered him the opportunity to write Natasha a letter of apology. He wrote the following letter dated November 14, 2004:
"Dear Natasha: I am writing to apologize to you for what happened last night, even though I recall very well that my intentions were good to get you home while patrolling at the same time. I heard some parts of your story from Detective Hunter, and looking at the situation, it seems like you have nothing to lose or gain by telling lies that I tried to, or raped you. With the fact that you would gain or lose nothing by telling lies in mind, I tried to think of a possible circumstance that would make me act the way part of your story . . . the way your story explains I did. The only reason I could think of was that I was overpowered by my emotions and ended up not hearing you telling me to stop. I find it unfair for you to be responsible of [sic] a problem caused by someone who cannot control their emotions, and for that, I apologize that you were/are the victim of someone elses problem. Your forgiveness shall be greatly appreciated, and I hope you move . . . on with your life without me and my actions stopping you from doing what you like whenever you do it . . . both psychologically and mentally. Sincerely, Kent Kafatia."
A sample of Natashas blood was drawn approximately four hours after the rape; it revealed that her blood-alcohol level was 0.14 percent. A criminalist indicated that she would have had a blood-alcohol level of approximately 0.20 or 0.22 percent at the time of the rape.
A nurse examined Natasha and removed a secretion from her lower lip. A DNA test of that secretion matched appellants DNA. There was a one in two billion chance that an unrelated person would possess appellants DNA. During a "sexual assault suspect examination" of appellant, medical personnel found scars on his right shoulder, right arm, right elbow, both thumbs, forehead, right cheek, and legs.
Following appellants November 14th arrest and the display of his photograph in the media, Allyson reported the October 30-31 incident involving appellant to the SBCC security office. Alyson identified him as her captor, in a photograph, and in a live line-up.
Another young woman, Kamala P., saw appellants photograph on the television news once in November 2004. Kamala later identified appellant in a line-up as the man who had tried to rape her in early December 2003, at approximately 5:00 a.m., as she crossed the SBCC campus parking lot. Kamala escaped after striking appellant on his chest, back and left side with a metal hair clip. A doctor who examined appellant in 2004 testified that several scars on his body were consistent with the shape and dimension of her hair clip.
The prosecution filed several charges against appellant in which Kamala was the victim, including assault with intent to commit rape. Those charges were dismissed after the jury could not reach a verdict.
Defense Evidence
An expert in the areas of memory and eyewitness identification opined that identification can be difficult when memory is not very good and that the accuracy of eyewitness identification changes over time. Alcohol consumption reduces the accuracy of memory. Cross-racial identifications are less accurate than identifications involving suspects and victims of the same race. Santa Barbara television news station KEYT displayed appellants picture at least 90 times between November 16 and November 24, 2004. Post-crime experiences can influence and decrease the accuracy of eyewitness identifications. Eyewitness identifications are inaccurate 20 to 25 percent of the time.
An alcohol addiction expert testified that when a persons blood-alcohol level is above 0.25 percent, the ability to form memory can fail. Based upon Natashas blood alcohol level of 0.14 at 7:00 a.m., on November 14, her blood alcohol level at 3:00 a.m. would have been approximately 0.20 percent. The effects of alcohol can be masked by adrenaline, which increases concentration and alertness. A person with a 0.20 blood-alcohol level "could have problems with memory."
DISCUSSION
I
Appellant argues that his convictions must be reversed because the court failed to give lesser-included offense instructions defining assault with intent to commit rape and attempted false imprisonment. We disagree.
The trial court must instruct the jury on a lesser-included offense whenever "there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser." (People v. Blair (2005) 36 Cal.4th 686, 745; People v. Breverman (1998) 19 Cal.4th 142, 154, 162, 177; People v. Barton (1995) 12 Cal.4th 186, 203.) A lesser-included offense instruction is required where there is "evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist." (Blair, at p. 745; Breverman, at p. 162.) The evidence below did not warrant instructing the jury on the lesser-included crimes of assault with intent to commit rape or attempted false imprisonment.
In discussing the jury instructions, appellants counsel stated that the court should not instruct the jury that sexual battery by restraint and assault with intent to commit rape were lesser-included offenses of forcible rape, under the circumstances of this case, where appellant had admitted that he had sexual intercourse with Natasha. Counsel instead requested that the court instruct the jury that when a victim consents to have sex and then withdraws her consent during intercourse, the act is not rape because "it is the presence or absence of consent at the moment of initial penetration which determines whether or not [the] act is rape." After further discussion, the court stated that it would instruct the jury on attempted rape, simple assault, and misdemeanor battery as lesser-included offenses of forcible rape. Counsel then noted that "attempted rape would [not] make sense given the circumstances of [this] case."
An assault with intent to commit rape is a crime that does not require penetration. (People v. Green (1960) 180 Cal.App.2d 537, 542, fn. 1.) In this case, given the undisputed evidence of penetration (based on the victims testimony and appellants admissions), the evidence did not support giving an assault with intent to commit rape instruction as a lesser-included offense.
Moreover, even assuming that the court erred by failing to instruct the jury that assault with intent to commit rape is a lesser-included offense of forcible rape, the error was harmless. The failure to instruct a jury on a lesser-included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instruction adversely to defendant under other properly given instructions. (People v. Lewis (2001) 25 Cal.4th 610, 646.) By finding appellant guilty of forcible rape despite the options to convict him of the lesser offenses of attempted rape or simple assault, the jury necessarily decided that appellant did not commit the crime of assault with intent to commit rape. (See ibid.; People v. Horning (2004) 34 Cal.4th 871, 907.)
With respect to appellants argument concerning the courts failure to instruct the jury that attempted false imprisonment is a lesser-included offense of misdemeanor false imprisonment, appellant has waived any error. Appellants counsel repeatedly and strongly objected to the instruction for tactical reasons. (See People v. Horning, supra, 34 Cal.4th 871, 905.) Counsel stated she did not want the court to give the jury an attempted false imprisonment instruction because it "would be completely inappropriate and confusing," where the lesser crime of attempted false imprisonment was a specific intent crime, while the charged offense was a general intent crime. Counsel reiterated her objection to the instruction, stating, "I dont think its warranted here. Im asking you not to do it."
Furthermore, the attempted false imprisonment instruction was not warranted by the evidence. An attempt to commit a crime consists of a specific intent to commit the crime and a direct but ineffectual act done toward its commission. (People v. Toledo (2001) 26 Cal.4th 221, 229.) False imprisonment requires an intended restraint of the victim. Any exercise of force, or express or implied threat of force by which the victim is restrained from his liberty or compelled to remain where he does not wish to remain, is false imprisonment. (§ 236; People v. Ross (1988) 205 Cal.App.3d 1548, 1553-1554.) Here, the undisputed evidence established that appellant stopped Allyson, questioned her, forcibly grabbed and held her arm, and restrained her against her will, not that he made an ineffectual attempt to do so. During final argument, before challenging discrepancies in Allysons recollection about the duration of the questioning, appellants counsel stated, "[W]ere not disputing the fact that [appellant] stopped and questioned her for a period of time."
II
In Cunningham v. California (Jan. 22, 2007, 05-6551) 549 U.S. __ , the Supreme Court held that a court may not impose an upper term sentence based upon aggravating sentencing factors (except a prior conviction) other than those found by the jury or admitted by the defendant. In selecting appellants upper term sentence for rape, the court relied upon three aggravating factors—Natasha was a particularly vulnerable victim; appellant violated a position of trust when he raped her; and the rape involved violence and the threat of great bodily injury. Because the jury made no findings regarding those factors, appellant argues that the court violated the Cunningham rule when it imposed the upper term sentence. In its brief, respondent argued that appellant forfeited this issue by failing to object below. He did not. (People v. Black (2007) 41 Cal.4th 799, 810-812 (Black II ); see also People v. Black (2005) 35 Cal.4th 1238 (Black I).)
Here, the trial court imposed the upper sentence based upon three aggravating factors not found by a jury in violation of the Cunningham rule. Cunningham error is subject to the harmless error test prescribed for federal constitutional error — whether the error was harmless beyond a reasonable doubt. (People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___ [62 Cal.Rptr.3d 588, 597-599].) "[If this] court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Id. at p. __ [62 Cal.Rptr.3d 588, 598].) Applying that standard, we conclude that the jury unquestionably would have found two aggravating circumstances true had either of them been submitted to the jury—i.e., that Natasha was a particularly vulnerable victim and that appellant violated a position of trust when he raped her. There was undisputed evidence that Natasha was exhausted and alone when appellant picked her up, some time after 2:30 a.m., when her blood alcohol level was far above the legal limit, that she saw appellant driving an SBCC security truck and knew that SBCC security personnel escorted students on campus. After his arrest, appellant acknowledged that he used the SBCC security truck to have intercourse with Natasha, and that it was wrong to do so.
We affirm the judgment.
We concur:
YEGAN, Acting P.J.
PERREN, J.