Opinion
E051726 Super.Ct.No. RIF10000681
08-16-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID JUNIOR MACIAS, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant David Junior Macias guilty of assault with intent to commit rape. (Pen. Code, § 220, subd. (a)(1).) The trial court sentenced defendant to state prison for a term of four years. Defendant raises three contentions. First, defendant asserts there is insufficient evidence that he intended to rape the victim. Second, defendant contends the trial court erred by not instructing the jury on the topic of voluntary intoxication. (§ 22.) Third, defendant asserts his trial counsel was ineffective for failing to request the voluntary intoxication instruction. We affirm the judgment.
All further statutory references will be to the Penal Code, unless indicated.
FACTUAL AND PROCEDURAL HISTORY
A. ASSAULT WITH INTENT TO COMMIT RAPE
In January 2010, the victim was living with her boyfriend, Bishop, at Bishop's grandmother's house, in the Highgrove area of Riverside County. Bishop and the victim shared a bedroom (the bedroom). Defendant lived in the house immediately next door to Bishop's grandmother's house. The victim did not know defendant until the night of the incident at issue in this case.
On the night of January 18, 2010, the victim and Bishop smoked methamphetamine. A few hours later, a little before midnight, the victim and Bishop were in the bedroom; the victim was on the bed playing with an iPod, while Bishop was at his computer. Around that same time, defendant came to the front door of Bishop's grandmother's house, and knocked on the door. Bishop's brother, Garcia, answered the door. Defendant asked to borrow a screwdriver. Garcia said that he did not have any tools, but defendant could ask Bishop to borrow a screwdriver. The victim heard Garcia speaking to someone outside the bedroom. Bishop and the victim opened the bedroom door to see who Garcia was speaking with, and they saw defendant. Bishop left to help defendant work on his car.
Later, Bishop and defendant went to the bedroom where the victim was. Bishop, defendant, and the victim "smoke[d] a bowl" and got high together. While smoking together, the victim found defendant "weird" because he made sexual comments, such as "I bet you guys have incredible sex," and he was essentially a stranger to the victim. Defendant also had a conversation with Bishop regarding the price of a tool he wanted to buy from Bishop. Defendant said, "he would pay 69 bucks" for the tool, which the victim believed was another sexual comment. The victim wanted defendant to leave. The victim and Bishop told defendant he needed to leave. A few minutes later defendant left.
After defendant left, Bishop left the room to use the restroom and get something to eat. The victim stayed in the room playing with her iPod. The victim was sitting on the bed, with her elbows on her knees, and her feet resting on the box spring, which was slightly offset from the mattress. Less than five minutes after Bishop left the room, defendant came in fast through the door of the bedroom. Defendant entered the room so quickly that the victim screamed. Defendant placed his forearm on the victim's neck and pushed her, so her back was lying against the bed. The victim began to struggle. The victim was wearing loose-fitting jeans, without a belt. Defendant pulled the victim's jeans in a downward direction, but the victim struggled against defendant and pulled her pants in an upward direction. Between defendant pulling and the victim moving, the victim's pants fell halfway down her buttocks. Defendant touched the victim's breast over her shirt, but the victim continually pushed his hand away. Through the walls, Garcia heard the victim say, "Stop it. Get off me." The victim screamed during the attack; Bishop entered the room approximately 30 seconds after the attack began.
Upon entering the room, Bishop immediately began fighting with defendant. Bishop and defendant began fighting on the bed, but fell to the ground. The two men punched one another, and blood was "everywhere." Garcia could not hear everything being said, but he heard Bishop say, "'You think you can just?'" The victim grabbed a hammer and struck defendant. The victim struck defendant's head at least three times with the hammer. The victim screamed at defendant, "Get out." After the third or fourth hammer strike, defendant staggered towards the front door.
The victim did not call the police when the incident ended, because a term of her probation required that she not have any contact with police officers, and she was afraid of being arrested for striking defendant with a hammer. Defendant stood in the front yard smiling. Bishop and the victim left the residence immediately after the attack and were gone for two or three days. Defendant called the police.
Riverside County Sheriff's Deputy Huggins was dispatched to investigate the report of defendant being hit in the head with a hammer. Deputy Huggins found defendant sitting on the front porch of his residence with "blood all over him." Deputy Huggins noticed a "gash" on the back of defendant's head, and called an ambulance for defendant. Deputy Huggins found defendant to be cooperative, but "vague with the whole story."
Defendant told Deputy Huggins he went to the victim's house to buy a tool for his car. Bishop wanted $300 for the tool, but defendant told Bishop he only had $60. Defendant laughed because he only had $60. Bishop asked defendant if he was laughing at Bishop. Defendant said, "No," but Bishop became angry. Bishop then attacked defendant with a hammer. Defendant did not tell Deputy Huggins the victim was present during the hammer attack.
Riverside County Sheriff's Deputy Colbert went to Bishop's grandmother's house to look for Bishop. Deputy Colbert convinced Bishop's family it was in Bishop's best interests to contact the police. When Deputy Colbert spoke to Bishop in person, he noticed Bishop had a large abrasion on the center of his back, approximately 14-inches long; abrasions on the right side of his head; an abrasion on his right shoulder; and a cut on his ear. After Deputy Colbert spoke to Bishop and the victim, he spoke to defendant.
Deputy Colbert noticed inconsistencies in defendant's story. Defendant told Deputy Colbert that during the fight, Bishop struck him in the head, but then the victim also armed herself and also struck him in the head. Defendant did not deny the allegation that he offered $69 for the tool he wanted to buy. Deputy Colbert asked defendant if he was able to pin Bishop down during the fight, and defendant said he believed he did have Bishop pinned on his back. Deputy Colbert then asked defendant how Bishop could have struck defendant in the head, if Bishop was pinned on his back. Defendant appeared confused by the question. Deputy Colbert told defendant the victim accused defendant of trying to sexually assault her. Defendant said something to the effect of, "[T]hat's the story that they are coming up with to cover their ass, then— then that's what they are going to do." Defendant did not appear shocked by the sexual assault accusation.
B. PRIOR CONDUCT
Sarah lived in Utah; she knew defendant from Utah. Defendant used to spend time at Sarah's neighbor's house; Sarah met him at the neighbor's house when she went there to use crystal meth. Defendant made sexual comments to Sarah. For example, the first time Sarah and defendant met, he asked if she was German. Sarah said that she was partly German. Defendant then said that Sarah "look[s] like the girl he lost his virginity to, and he's always wanted to have a baby with a German girl."
We use Sarah's first name to better protect her identity; no disrespect is intended.
One night, approximately one or two weeks after Sarah met defendant, defendant called Sarah at her house. Defendant asked Sarah to go to a party with him, but Sarah did not want to go. Later that night, Sarah was watching a movie with her mother and cousin when she heard a car stop outside her house and a car door shut. Sarah felt that it was defendant outside her house, so she went to her room, hoping her mother or cousin would tell defendant she was unavailable.
Defendant went to the front door of the house and asked for Sarah. Sarah's cousin let defendant into the house, and defendant went to Sarah's room. Sarah left the bedroom door open, but defendant closed it; Sarah then opened the door again, and defendant closed it again. Sarah was standing up, when defendant pushed her onto the bed. Sarah said, "[N]o, no, no, stop. Stop. Stop. Stop." Sarah struggled against defendant. Defendant ripped Sarah's pants and moved her undergarments. Sarah told defendant she would scream if he did not stop. Defendant then stood up, pulled up his pants, told Sarah she was a "fucking bitch," and left. Sarah suffered bruises on her inner thighs from defendant's hands. Sarah called the police approximately one week after she was attacked. Sarah was told defendant would not be prosecuted "because it was an attempted rape and not a full rape."
C. DEFENSE: ASSAULT WITH INTENT TO COMMIT RAPE
In the instant case, defendant testified in his defense. Defendant gave the following version of events on January 18 and 19, 2010: Around 6:00 or 7:00 p.m. on January 18, defendant was changing the oil in his truck when he realized he needed "one of those oil filter cooler thingies," so he went next door to Bishop's grandmother's house to ask if they had one. Garcia answered the door, and defendant asked if he had the oil filter tool. Garcia told defendant to ask Bishop for the tool. Defendant spoke to Bishop, and Bishop went with defendant to help him with his truck. While changing the oil, Bishop told defendant he would sell him a voltmeter, because defendant was an electrician. After working on the truck, defendant smoked methamphetamine with Bishop, to thank him for his help.
Later that night, when defendant arrived back at home after going to a friend's house, he saw the lights were on at Bishop's grandmother's house, so he went over to the house. Defendant asked about buying the voltmeter. When defendant looked in his wallet he saw he had "around $69," so he offered $69. Defendant, the victim, and Bishop smoked methamphetamine together. While smoking together, Bishop and defendant noticed they had the same telephone, but the telephones were different colors. Defendant said to Bishop, "[U]sually when there [are] things like that that happen like that, like coincidences, it's because God's making all this happen for some reason." Bishop asked, "Are you insulting me?" Defendant said, "[M]aybe I'll just leave."
As defendant stood up to leave, Bishop struck defendant's head with a hammer. Defendant grabbed Bishop, and the two began fighting. Bishop yelled to the victim, "'Kill him. Kill him. Kill him.'" As defendant held Bishop on the ground, the victim began striking defendant with a stick. Defendant bit Bishop's head and "threw him down again." Eventually, the victim said, "'Stop. Stop. Stop. Okay. Stop.'" Bishop stopped, and defendant was able to leave the bedroom. Defendant went back to his house and called 911.
D. DEFENSE: PRIOR CONDUCT
In regard to the prior conduct involving Sarah, defendant testified Sarah was flirting with him at the neighbor's house. Specifically, when defendant told Sarah "about the German thing[, s]he looked very interested." Defendant called Sarah, and she said he could come to her house. When defendant arrived at the house, Sarah invited him inside. Sarah said she did not want to kiss defendant because she was sick. As defendant and Sarah lay on the bed, defendant tried to kiss her. Sarah said, "'No, I'm sick.'" Defendant became upset with himself, because he had left his girlfriend at his house in order to "hook up" with Sarah. Defendant also became upset with Sarah, because he felt that she "used [him] like a toy." Defendant said to Sarah, "'You know what? Screw this.'" Defendant then left Sarah's house.
E. CROSS-EXAMINATION OF DEFENDANT
During the cross-examination of defendant, the prosecutor asked about a variety of prior incidents involving defendant. First, defendant admitted physically abusing his girlfriend, Jessica, in 2004 or 2005. Defendant struck Jessica's face, which split her lip open. Defendant was sentenced to jail for striking Jessica. Second, defendant was in the military from 2001 to 2002; he was stationed in Germany. While in Germany, defendant was 23 years old; he had sex with a 16-year-old girl. Third, in 2004 or 2005, defendant met Christina at a discount store in Utah. Defendant and Christina went to a party, and then went to his room to look at an astrology book. Defendant admitted having sex with Christina, but denied that it was against Christina's will. Christina accused defendant of raping her. Defendant was charged with raping Christina and the matter was set for trial; however, the trial never took place.
F. DEFENSE: CLOSING ARGUMENT
During closing arguments, defendant's trial counsel argued: "Legitimate and innocent victims of violent crimes have no reason to fear the police in reporting a crime. They have no reason to fear the police in reporting a crime. Liars have reason to fear the police, and they should. Liars have a reason to fear the police in reporting a crime. That's what this case is about." Defendant's trial counsel went on to argue the instant case was about the victim lying to protect Bishop. Defense counsel asserted Bishop attacked defendant, then the victim attacked defendant, and the victim lied to cover up the attempted murder of defendant.
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends there is insufficient evidence supporting the finding that he intended to rape the victim. We disagree.
"'The essential element of [assault with intent to commit rape] is the intent to commit the act against the will of [the victim]. The offense is complete if at any moment during the assault the accused intends to use whatever force may be required.' [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 509.)
"A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. [Citation.] Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
"Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.]" (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) "'[A] jury may infer a defendant's specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors.' [Citation.]" (People v. Park (2003) 112 Cal.App.4th 61, 68.)
The victim testified that defendant placed his forearm on her neck and pushed her, so that her back was lying against the bed. The victim said defendant pulled her jeans in a downward direction, and he touched her breast over her shirt, but the victim continually pushed his hand away. A jury could infer from the victim's testimony that defendant was trying to rape the victim, because he was trying to remove her pants. If defendant merely wanted to assault the victim—hurt her by strangling her—then he likely would not have tried to remove her pants. This inference is further supported by defendant touching the victim's breast with his hand. Again, if defendant was simply trying to assault the victim, rather than rape her, he would not have repeatedly tried to touch her breast; rather, he would have just placed his forearm across her neck, and not tried to feel her breast. In sum, the evidence that (1) defendant pulled downward on the victim's pants, and (2) touched her breast, while holding his forearm across the victim's neck as she struggled against him, support a reasonable inference that defendant intended to use whatever force might be required to rape the victim.
Moreover, Sarah testified that, in a different incident, defendant pushed her onto her bed, ripped her pants, and moved her undergarments. Sarah told defendant she would scream if he did not stop. Defendant then stood up, pulled up his pants, told Sarah she was a "fucking bitch," and left. Sarah suffered bruises on her inner thighs from defendant's hands. Sarah's testimony supports a finding that defendant has a disposition or propensity to commit sexual offenses. (Evid. Code, § 1108; see also People v. Abilez (2007) 41 Cal.4th 472, 502 [Evidence Code section 1108 expanded the admissibility of disposition or propensity evidence in sex offense cases.].) Defendant's disposition towards sexual offenses supports the inference that defendant did not merely touch the victim's breast and jeans by accident or as part of the struggle. Rather, the evidence supports the inference that defendant intended to rape the victim. In sum, substantial evidence supports the jury's finding that defendant committed assault with the intent to rape.
Defendant asserts there is not substantial evidence of his intent to rape the victim, because there is no evidence defendant was sexually attracted to the victim. Rape is a crime related to power. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 224 (conc. opn. Arabian, J.).) Therefore, defendant's alleged lack of sexual attraction towards the victim is not relevant to our substantial evidence inquiry since the crime of rape is typically not about sexual attraction, it is about power.
Next, defendant points out that he called 911, and it would be "illogical" for him to contact law enforcement if he tried to rape the victim. Defendant is essentially rearguing the evidence, and pointing out that there is evidence favorable to defendant. We agree there is evidence favorable to defendant; however, there is also substantial evidence supporting defendant's conviction, and it is not our role to reweigh the evidence. (People v. Poe (1999) 74 Cal.App.4th 826, 830.) Since defendant's argument seems to be urging this court to reweigh the evidence, we find the argument to be unpersuasive.
B. INTOXICATION INSTRUCTION
Defendant contends the trial court erred by not instructing the jury on the topic of voluntary intoxication. (§ 22.) We disagree.
As defendant acknowledges in his opening brief, a voluntary intoxication instruction "is a form of pinpoint instruction that the trial court is not required to give in the absence of a request." (People v. Bolden (2002) 29 Cal.4th 515, 559.) Defendant does not assert that he requested a voluntary intoxication instruction; rather, he argues there is substantial evidence to support a defense of voluntary intoxication. We conclude the trial court did not err, because it did not have a sua sponte duty to provide the instruction.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends his trial counsel was ineffective because defendant did not request the jury be instructed on the topic of voluntary intoxication. We disagree.
"To prevail on a claim of ineffective assistance of counsel, [defendant] must show (1) trial counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the inadequacy was prejudicial, that is, there is a reasonable probability that but for counsel's unprofessional errors the result of the trial would have been more favorable. [Citation.] If counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. On appeal, the conviction must be affirmed unless there could be no conceivable reasonable purpose for counsel's omission. [Citations.]" (People v. Padilla (2002) 98 Cal.App.4th 127, 136.)
Voluntary intoxication is a defense to a specific intent offense. In particular, voluntary intoxication is relevant to determining whether a defendant actually formed the required specific intent. (§ 22; see also People v. Carr (2000) 81 Cal.App.4th 837, 843.) The offense of assault with the intent to commit rape is a specific intent offense (§ 220, subd. (a)(1).) (People v. Key (1984) 153 Cal.App.3d 888, 896.) Therefore, voluntary intoxication is a defense to the charge of assault with intent to commit rape.
In the instant case, defendant testified he did not assault the victim. Rather, defendant testified he smoked methamphetamine with Bishop and the victim. Bishop became offended by defendant's comment regarding God's involvement in coincidences, and then Bishop brutally attacked defendant. The argument that defense counsel made to the jury was consistent with defendant's story of never assaulting the victim. Defense counsel argued the victim lied about being assaulted in order to justify the attempted murder of defendant.
Defense counsel's decision to not request the voluntary intoxication instruction was reasonable, because it would have contradicted defendant's testimony that he did not assault the victim. The voluntary intoxication instruction would have given the impression that defendant did, in fact, assault the victim, but he was too intoxicated to form the intent to rape. Accordingly, if defense counsel argued this theory, then he would have essentially been calling defendant a liar, in that defendant claimed to have never assaulted the victim. Since there is a reasonable explanation for defense counsel not requesting the voluntary intoxication instruction, we conclude defendant's conviction must be affirmed.
The voluntary intoxication instruction provides, in relevant part: "If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required [specific intent] [mental state]." (CALJIC No. 4.21.)
Defendant argues "there was no reasonable strategic reason for not requesting [the voluntary intoxication] instruction and presenting such an argument to the jury." As set forth ante, defendant testified he was the victim in this case. Therefore, there was a strategic reason for not requesting the voluntary intoxication instruction—the instruction would have contradicted defendant's testimony, and given the jury the impression that defendant did assault the victim, but was too intoxicated to form the intent to rape. It appears trial counsel made the strategic decision to not contradict his client's testimony. In sum, we find defendant's argument unpersuasive.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
KING
Acting P. J.
CODRINGTON
J.