Summary
In People v. Keovilayphone (2005) 132 Cal.App.4th 491, 497, the appellate court concluded that rape in concert is a general intent crime.
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No. C045357
August 31, 2005 [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I., III., IV. and V. of the Discussion.
Appeal from the Superior Court of Yuba County, No. CRF03214. James L. Curry, Judge.
Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Charles A. French and Michael P. Farrell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
A jury convicted defendant John Keovilayphone of rape in concert (Pen. Code, §§ 264.1, 261, subd. (a)(2) — count I), sexual penetration in concert (§§ 264.1, 289, subd. (a)(1) — count II), simple assault (§ 240 — count III, lesser included offense), and sexual penetration with a foreign object (§ 289, subd. (a)(1) — count VI). With respect to the first two counts, the jury made special findings that defendant kidnapped the victim and that her movement substantially increased the risk of harm. (§ 667.61, subds. (d)(2) (e)(1).)
Undesignated statutory references are to the Penal Code.
Sentenced to state prison for 25 years to life plus 17 years, defendant seeks reversal on four grounds: (1) the trial judge's failure to provide sufficient guidance in response to a juror inquiry about the definition of rape; (2) error in instructing the jury that rape in concert was a general intent crime; (3) refusal to give a requested jury instruction on the lesser included offense of attempted rape; and (4) refusal to instruct the jury that absence of flight immediately after the crime could be considered evidence of innocence. We find none of these grounds meritorious and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Nkau X. (Nkau) and the victim T.T. (T.) live in Oroville and are high school age cousins. On March 14, 2003, Nkau and her friend, Ker, invited T., who was then 15 years old, to a birthday party in Marysville. The two girls traveled there with Ker and his friend Meng. The birthday party was being held for Meng's brother, Mong, in a detached garage at their residence. A third brother, Keng, was also there.The cousins arrived at the party around 6:00 p.m. There were about 10 to 15 people in attendance. At some point, defendant, a friend of Meng's who was nicknamed "Blacky," arrived. Defendant is Laotian, and had darker skin than the other partygoers, who were all Hmong. He also stood out on account of his large size.
During the party, T. asked defendant what time it was because she noticed that he was the only one there wearing a watch.
Beer and hard liquor were served at the party. T. did not want to drink alcohol, but was told that she would not be taken home unless she did. She drank about two "pretty big" cups half-filled with hard liquor. Everyone at the party was inside the garage except Mong and Nkau. T. felt sick and began throwing up, at which point several males, including defendant and Meng, grabbed her from behind. Someone turned off one of the lights while Meng and defendant tried to insert their fingers in her vagina. Defendant put his finger inside her vagina, ignoring her pleas for him to stop. T. knew it was defendant because she "could feel his watch against [her] skin." He removed his hand from her pants when she vomited again.
T. found her way outside and told Nkau what had happened, but Nkau thought she was joking and wandered off. While T. was outside by the refrigerator talking to Ker, defendant kept coming over to them. Defendant said he wanted to rape T. and asked Ker to "[l]et me just have her for ten minutes." Ker initially told defendant "no," but they began whispering to each other for a minute or two.
Suddenly, Keng and Ker grabbed T. by the arms and legs. With defendant leading the way, they physically carried her to another location in the back of the property near some trees. T. was placed in a shed, on a flat surface with no lighting. Ker and Keng held T. down, Ker covered her mouth to stifle her screams, and defendant began removing her pants. Defendant put his fingers in her vagina; he then held T.'s legs down and inserted his penis in her vagina. Meng heard screams coming from the shed and the attack ended when he arrived, told the assailants to stop and announced that he was taking T. home. The entire ordeal had lasted about 30 minutes.
As they were preparing to leave, T., who was crying and upset, told Nkau that "Blacky" had raped her. Nkau went over to defendant, who was sitting in a car, and called him a "bitch" because he had no right to do that to her cousin. Defendant asked Nkau what she had called him. When she repeated the epithet, he got out of the car and struck her above her left eye with his fist.
T. rode back to Oroville with defendant, Meng, Mong and Ker. When she arrived at Nkau's house, she reported the rape to her friend, Cindy, and they called the police and T. was taken to the hospital. The investigating police officer noticed that T. had bruising and reddish marks on her wrists, armpits and upper body. David Damazo, the doctor who examined T. that night, observed that she had been through a "traumatic ordeal." It looked to him as though T. had "clamped [her] legs very tightly together trying to prevent what was happening." There were two lacerations of the skin of the vagina and the tissue was red, raw and abraded. Her condition was inconsistent with consensual intercourse, and Dr. Damazo indicated it was in fact "among the worst [he had] seen as far as the amount of vaginal injury during a sexual assault exam."
Defendant did not testify. Other witnesses who attended the party, some of whom testified under grants of use immunity, presented varying and somewhat conflicting accounts of the events that evening.
DISCUSSION I. Response to Juror Inquiry II. Instruction on Mental State Required for Rape in Concert
See footnote, ante, page 491.
As defendant concedes, rape (§ 261) is a general intent crime. ( People v. Linwood (2003) 105 Cal.App.4th 59, 70 [ 129 Cal.Rptr.2d 73].) However, defendant was charged with the more serious crime of rape in concert (§§ 264.1, 261, subd. (a)(2)).
Defendant complains that the court misinstructed the jury by telling them that the crime of rape in concert required only general intent. He maintains that, because the offense requires that defendant commit rape "voluntarily" while acting in concert with others, the intent required is a "very similar type of specific intent to that required for aiding and abetting" and thus rape in concert is a specific intent crime.
As pertinent here, the court told the jury: "In the crime rape in concert, . . . there must exist a union or joint operation of act or conduct and general criminal intent. [¶] General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful." (Italics added.)
(1) There are two kinds of criminal intent: general intent and specific intent. "`When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.' ( People v. Hood (1969) 1 Cal.3d 444, 456-457 [ 82 Cal.Rptr. 618, 462 P.2d 370].) General criminal intent thus requires no further mental state beyond willing commission of the act proscribed by law." ( People v. Sargent (1999) 19 Cal.4th 1206, 1215 [ 81 Cal.Rptr.2d 835, 970 P.2d 409].)
(2) In order to be found guilty of the crime of rape in concert, a defendant must "voluntarily acting in concert with another person," commit the crime of rape "by force or violence and against the will of the victim." (§ 264.1.) He may do so "either personally or by aiding and abetting the other person." ( Ibid.)
The word "voluntarily" in section 264.1 means that the defendant acted freely of his own volition, and not accidentally, unintentionally or out of fear or coercion. (Cf. People v. Caldwell (1984) 153 Cal.App.3d 947, 951-952 [ 200 Cal.Rptr. 508].) This mental state typifies general intent crimes. (See People v. Lyons (1991) 235 Cal.App.3d 1456, 1460 [ 1 Cal.Rptr.2d 763] ["If the end in view is simply a proscribed act we ordinarily call that a general intent"]; People v. Johnson (1998) 67 Cal.App.4th 67, 72 [ 78 Cal.Rptr.2d 795] ["The only intent required for a general intent offense is the purpose or willingness to do the act or omission"].)
It follows that as long as the defendant acts (1) voluntarily and (2) in concert with others in committing an act of sexual intercourse against the victim's will by using force or violence, the elements of section 264.1 have been satisfied. It is not necessary that he intend to do any further act or achieve any additional consequence. Rape in concert is, therefore, a general intent crime.
(3) It is true that rape in concert can be committed by two different methods: either by personal commission or by aiding and abetting the perpetrator. With respect to the one who personally does the raping, the requisite mental state is one of general intent: the intent to rape in volitional cooperation with others.
Since defendant was prosecuted for violating section 264.1 on the theory that he was the sole rapist, it is undeniable that under these facts he was accused of a general intent crime.
As to those who may be held liable for the crime of rape in concert through the alternative method of aiding and abetting, the jury must, of course, find that they had the specific intent to aid the perpetrator, i.e., had knowledge of his criminal purpose as well as an intent to encourage, facilitate or instigate commission of the offense. ( People v. Beeman (1984) 35 Cal.3d 547, 560 [ 199 Cal.Rptr. 60, 674 P.2d 1318].) But "aiding and abetting" is merely a theory upon which a person may be held accountable for an offense committed by another. (See § 31; 2 LaFave, Substantive Criminal Law (2d ed. 2003) Acts Mental State, § 13.2, p. 337.) It does not define a substantive crime. (See People v. Fraize (1995) 36 Cal.App.4th 1722, 1725 [ 43 Cal.Rptr.2d 64, 43 Cal.Rptr. 64] ["[U]nder an aiding and abetting theory . . .[,] a defendant can properly be convicted of a crime even though by statutory definition the defendant would be incapable of committing the substantive offense by himself"].)
The jurors here were separately instructed on the concept of aiding and abetting not because defendant was prosecuted on that theory, but because some of the witnesses who testified against him could be considered accomplices, and thus the court was required to inform the jury that their testimony needed corroboration (CALJIC No. 3.10) and should be viewed with caution (CALJIC No. 3.18).
(4) The fact that a person must harbor a specific intent to aid the rapist in order to be convicted as an accomplice to a charge of violating section 264.1 does not transform the underlying offense into a specific intent crime. Defendant's confusing attempt to engraft a mental state applicable to a theory of criminal liability onto the substantive crime of rape in concert must be rejected.
III.-V. fn_ III. Refusal to Instruct on Attempted Rape
Defense counsel requested that the trial court give an instruction on the crime of attempted rape as a lesser included alternative to the charge of rape in concert. The court refused, declaring that no reasonable jury could conclude that the crime, whoever perpetrated it, was that of attempted rape. We reject defendant's claim that this ruling was erroneous. The standard of review is clear. "[T]he existence of ` any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration' by the jury." ( People v. Breverman (1998) 19 Cal.4th 142, 162, quoting People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) Here, both the victim, T., and Ker testified that defendant accomplished the crime of rape by placing his penis in her vagina. Keng, one of the other alleged accomplices, testified that he never saw defendant rape the victim, claiming that defendant inserted only his fingers and his fist. There was no testimony that defendant tried to insert his penis, but was unsuccessful. To support his claim that a jury could find he committed attempted rape, defendant points to Meng's testimony that the day after the sexual assault, defendant admitted inserting his fingers into T.'s vagina; when the prosecutor then asked, "Did you ever ask the defendant whether he had put his penis inside [T.]'s vagina?" Meng replied: "He seems to indicate he was going to do it, but he doesn't have any erection." (Italics added.) The cited testimony does not constitute substantial evidence that defendant was guilty of attempted rape. At most, Meng's hearsay recollection can be understood to mean that defendant desired to rape T. but refrained from doing so because nature would not cooperate. No reasonable juror could conclude from this single comment that defendant tried to rape the victim with a flaccid penis.
IV. Refusal to Instruct on Absence of Flight
Pointing to the fact that defendant rode home in the same car with the victim immediately after the sexual assault, defense counsel orally requested an "absence of flight" instruction. While no written instruction appears in the clerk's transcript, the court's comments in declining the request indicate that counsel desired an instruction in the same language as CALJIC No. 2.52, modified so as to advise the jury that the absence of flight by an accused following a crime may be considered in assessing guilt or innocence. Citing People v. Green (1980) 27 Cal.3d 1, 37 ( Green), People v. Williams (1997) 55 Cal.App.4th 648 and People v. Staten (2000) 24 Cal.4th 434 ( Staten), the trial court refused to give the requested instruction. Defendant, decrying a "clear imbalance" in allowing the jury to receive a flight instruction where there is evidence of flight but denying a defendant the reciprocal right to an absence-of-flight instruction where the opposite is true, contends the ruling violated his state and federal due process rights. The California Supreme Court in Staten decisively rejected the same argument defendant tenders here. We quote: "Pointing to Penal Code section 1127c, which requires an instruction on flight, when supported by the record, as showing consciousness of guilt, [the defendant] argues that he has a `reciprocal' right to an instruction on absence of flight, as showing lack of guilt. [¶] We discern no error. In . . . Green[, supra,] 27 Cal.3d [at pp.] 39-40 and footnote 26, we held that refusal of an instruction on absence of flight was proper and was not unfair in light of Penal Code section 1127c. We observed that such an instruction would invite speculation; there are plausible reasons why a guilty person might refrain from flight. ( Green, . . . at pp. 37, 39.) Our conclusion therein also forecloses any federal or state constitutional challenge based on due process." ( Staten, supra, 24 Cal.4th at p. 459.) The holding in Staten is binding on this court and we have no discretion to refuse to follow it. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Staten ends all debate on the issue, at least in this court. Since none of his assignments of error are meritorious, we dismiss defendant's claim of cumulative error as moot.
CALJIC No. 2.52 tells the jury in part that "The [flight] . . . of a person [immediately] after the commission of a crime, or after [he] . . . is accused of a crime, is not sufficient in itself to establish [his] . . . guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty." (CALJIC No. 2.52 (7th ed. 2003); see § 1127c.)
V. Sentencing Error
The trial court imposed the upper term sentence for count II (sexual penetration in concert), citing the facts that defendant caused great bodily injury, the crime involved a high degree of cruelty and callousness, and defendant induced others to commit the crime. The court also imposed the upper term for count VI, sexual penetration with a foreign object, citing defendant's prior juvenile criminal record and his poor performance on probation. Finally, the court imposed full consecutive terms for counts I, II and VI, citing both the mandatory and the discretionary provisions of section 667.6. In supplemental briefing, defendant contends his sentence must be reversed because California's statutory provisions for upper term and consecutive sentencing violate the United States Supreme Court holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435] ( Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403] ( Blakely), by permitting a trial judge to enhance his sentence based on facts not submitted to the jury and proved beyond a reasonable doubt. Applying the Sixth Amendment to the United States Constitution, the federal high court held in Apprendi that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. ( Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury's verdict or admitted by the defendant. Thus, when a sentencing court's authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. ( Blakely, supra, 542 U.S. at p. ___ [159 L.Ed.2d at pp. 413-414].) The United States Supreme Court later emphasized: "If the [sentencing scheme] could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. [Citations.] . . . For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant." ( United States v. Booker (2005) 543 U.S. ___, ___ [ 160 L.Ed.2d 621, 643].) In People v. Black (2005) 35 Cal.4th 1238, our state Supreme Court addressed the validity of upper term and consecutive sentences imposed without predicate factfinding by a jury, in light of these recent United States Supreme Court authorities. The court has ruled that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law" does "not violate a defendant's right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker." ( Black, at pp. 1244, 1254.) We reject defendant's sentencing claims based on the reasoning in Black.
As of the filing of this decision, Black is not yet final and the time to consider modification or rehearing has been extended to September 16, 2005 (S126182).
DISPOSITION
The judgment is affirmed.Blease, Acting P.J., and Davis, J., concurred.