Opinion
No. A098385.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. BRYAN RANDALL MONKRES, Defendant and Appellant.
A jury convicted Bryan Randall Monkres (appellant) of 10 counts of rape in violation of Penal Code[] section 261, subdivision (a)(2), and two counts of forced oral copulation in violation of section 288a, subdivision (c)(2). The trial court sentenced appellant to an aggregate term of 72 years in state prison—six years for each offense with each term to run consecutively. Appellant seeks reversal of his convictions based on his claim that the trial court erred in instructing the jury with the 2001 version of CALJIC No. 2.50.01, which addresses the inference a jury may draw from a defendants commission of prior sexual offenses, and CALJIC No. 1.23.1, which informs a jury that an alleged victims suggestion or request that the perpetrator of certain sexual offenses use a condom does not "by itself constitute consent" to the charged sexual offense. We find no errors in the instructions and affirm.
All further statutory references are to the Penal Code.
I. FACTS
T.P. is appellants stepdaughter and victim. She was 18 and 19 years old when appellant committed the charged offenses. T.P. lived with appellant and her mother, appellants wife, in Utah, Nevada and Arizona between the ages of 12 and 14. T.P. testified that appellant physically and sexually abused her during that entire period. He began orally copulating her when she was 12; he also sodomized her. Eventually, when she was 14 and living in Arizona, she told her best friend, a school nurse and the police about the abuse. She was taken from her home and place in foster care for four years. When she left foster care, she moved in with her grandparents in Utah. She left her grandparents to visit her mother and appellant in Lake County in October 2000; after she left for the visit, she found that she was not welcome to return to her grandparents home and stayed in California. Appellant and T.P.s mother lived in a small trailer. After T.P. moved in, T.P.s mother and younger brother shared the trailers one bedroom; she and appellant slept in the living room.
On October 16 or 17, 2000, T.P. and appellant were alone in the trailer. Appellant got mad at her for telling the authorities what he had done in Arizona, which led to his going to jail. He grabbed T.P.s throat and threatened her with a beating. He stopped, left the room and came back. At that point, he said he was going to do what she said he had done in Arizona—rape her. He told her to take off her pants and that "he was gonna do it." She complied with his demand that she take her pants off because she "feared the man." Appellant then raped her. After he was finished, he told T.P. that if she told anyone he would "take [her] into the woods and beat [her] to a bloody pulp." Appellant left the room. T.P. lay crying for five or ten minutes, then got dressed and pretended as if nothing had happened. She did not tell her mother or the police about what had occurred because she was scared.
Appellant did the same thing to her the next day. On that occasion, he did not threaten her. He "was really angry" and told her to go into the back bedroom. Appellant then began a regular pattern of sexually assaulting T.P. Those assaults included ones in which appellant forced T.P. to orally copulate him. The assaults occurred nearly every day until T.P. moved out on July 31, 2001. T.P. testified that she never consented to any of the sexual assaults. She indicated that on one occasion appellant stopped at a store and told her to get condoms because he did not want her to become pregnant. She complied with his demand because she did not want to defy him. After T.P. moved out of the trailer, she went to the sheriffs department. One of the deputies arranged for her to make three recorded "pretext" calls to appellant. The audio tapes of those calls were played for the jury. In the course of those calls, appellant admitted his sexual behavior when T.P. lived with him between the ages of 12 and 14. He also admitted having sex with T.P. in Lake County. He further admitted that he threatened her in order to induce her to have sex with him and that he threatened her with physical harm if she ever told anyone.
Tina Louise Monkres, appellants wife, testified for the defense. She indicated that T.P. never said anything to her about any inappropriate behavior on appellants part. She further testified that T.P. always reacted warmly toward appellant. She also stated that T.P. could not be trusted; she lied a great deal when she was younger. She admitted that T.P. had been placed in foster care because she lived with appellant and that she chose to continue to live with him rather than separate from him and get T.P. back. She further admitted that she has epileptic seizures that occasionally affect her memory.
II. ANALYSIS
A. The Trial Court Did Not Err in Instructing the Jury with the 2001 Version of CALJIC No. 2.50.01
The trial court instructed the jury pursuant to the 2001 version of CALJIC No. 2.50.01: "Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. [¶] `Sexual offense means a crime under the laws of a state or of the United States that involves any of the following: Contact, without consent, between any part of the defendants body or an object and the genitals or anus of another person. Contact, without consent, between the genitals or anus of the defendant and any part of another persons body. [¶] If you find that the defendant committed a prior sexual offense, you may, but you are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused. [& para;] However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. The weight and significance of the evidence, if any, are for you to decide. [¶] Unless you are otherwise instructed, you must not consider this evidence for any other purpose."
In his opening brief, appellant focuses his attack on the third and fourth paragraphs of the instruction. Appellant does not take issue with the jurys being told that it could find by a preponderance of the evidence that he had committed previous sexual offenses and that "that fact alone, if proved by a preponderance of the evidence, was not enough to convict." He argues, however, that "the jury was also told that it could give the evidence of a prior crime the weight and significance that it saw fit. This included using the evidence to infer that appellant had a disposition to commit such offenses, if the jury so found, and, based on that finding, it was permissible to infer that appellant committed the offenses charged in this case. Thus the jury was instructed that appellants commission of past sexual offenses could be used as a link in the direct chain of evidence to convict, in violation of the commands of due process."
Three months after appellant filed his opening brief, the Supreme Court issued its opinion in People v. Reliford (2003) 29 Cal.4th 1007 (Reliford). In Reliford, the Court rejected the same arguments advanced by appellant in holding that CALJIC No. 2.50.01 is not constitutionally infirm. (Id. at pp. 1012-1016.) Although Reliford considered the 1999 version of the instruction, the two paragraphs challenged by appellant here are identical to their 1999 predecessors and were the subject of the Supreme Courts attention in that case. (Compare id. at pp. 1011-1012 with instruction quoted above.) Thus, Reliford compels us to reject appellants arguments here. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In his reply brief—filed post-Reliford—appellant does not concede that Reliford requires us to reject his argument about the 2001 version of the instruction. He first points out that the Supreme Court stated that CALJIC No. 2.50.01 "could be improved." (Reliford, supra, 29 Cal.4th at p. 1016.) He also notes that the Supreme Court indicated that the 2002 revision, which deleted the final sentence of the fourth paragraph and inserted an additional cautionary statement: "If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime," constituted such an improvement. (Ibid.) He also notes the obvious—that the 2001 version we consider here did not include the 2002 improvements. The fact that the instruction we consider here could be improved does not mean it is constitutionally infirm. The Supreme Court has explicitly found that it is not. (Ibid.)
Appellant asserts that: "notwithstanding Reliford, this instruction deprived [him] of due process of law. The instruction told the jury that a prior sexual offense, found by a preponderance [of the evidence], can support an inference of disposition and that disposition could in turn be used to infer that appellant was in fact guilty of the charged crime. Therein lies the constitutional infirmity." Appellants argument ignores the following language from the instruction given by the trial court: "However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes." (Italics added.) Given the plain language this sentence, we see no danger that a jury would convict a defendant of a charged offense based solely on his commission of a prior sexual offense. Indeed, as we stated in a slightly different context, such a result is a "logical impossibility." (People v. James (2000) 81 Cal.App.4th 1343, 1354; see also Reliford, supra, 29 Cal.4th at p. 1014.) Moreover, and most significantly, appellants argument has been rejected by our Supreme Court. (Reliford, supra, 29 Cal.4th at pp. 1013-1015; Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
B. The Trial Court Did Not Err in Instructing the Jury with CALJIC No. 1.23.1
The standard version of CALJIC No. 1.23.1 provides: "In [prosecutions under] Penal Code section _____, the word `consent means positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. [¶] [The fact, if established, that the defendant and _________ (the alleged victim) engaged in a current or previous dating relationship does not by itself constitute consent.] [¶] [Evidence that the alleged victim suggested, requested, or otherwise communicated to the perpetrator that a [condom] [or] [other birth control device] be used does not by itself constitute consent.]"[] Here, the trial court gave a modified version of that instruction. The court inserted the Penal Code sections for rape and forced oral copulation in the first paragraph and gave only the second of the two bracketed paragraphs, employing the word "condom" and dropping the phrase "or other birth control device."
CALJIC No. 1.23.1 reflects the provisions of sections 261.6 and 261.7. Section 261.6 defines consent as set forth in CALJIC No. 1.23.1; it also provides that the existence of a previous dating or marital relationship "shall not be sufficient to constitute consent." Section 261.7 provides that a victims suggestion, request or communication to a defendant that he use a condom or other birth control device "without additional evidence of consent, is not sufficient to constitute consent."
Appellant begins his challenge to the instruction given by the court by asserting that, although states have substantial latitude in defining the elements of criminal offenses, they cannot require a defendant to disprove an element of a crime. He goes no to urge that: "In California, it is not accurate to say that consent is a `defense to the crime of rape or forced oral copulation. Rather, the prosecution has the burden to prove that the sexual act occurred against the will of the complaining witness." He argues that the instruction "pre-empted the jurys prerogative to decide for itself whether the evidence proved the prosecutions case beyond a reasonable doubt and ordered the jury not to consider the complaining witnesss suggestion, implied by her purchase of condoms, to be sufficient to establish a reasonable doubt as to whether the sexual acts occurred against her will," in violation of his right to due process. We find no merit in appellants argument.
We first observe that appellant ignores People v. Gonzalez (1995) 33 Cal.App.4th 1440 (Gonzalez). In Gonzalez, the trial court gave a modified version of the 1991 version of CALJIC No. 1.23.1, informing the jury that the existence of a current or previous dating relationship was insufficient to constitute consent. (Id. at p. 1442-1443, fn. 1.) On appeal, Gonzalez argued that the instruction violated due process by shifting the burden of proof on the issue of consent to him or by creating a presumption of lack of consent. (Id. at p. 1443.) The Court of Appeal rejected that argument: "CALJIC No. 1.23.1 did not shift the burden of proof on consent to the defense or create a presumption of lack of consent. The instruction merely defined consent. Considered together, CALJIC No. [] 1.23.1 [and the other instructions defining the elements of the offense with which Gonzalez was charged] clearly indicated the prosecution had the burden of proving lack of consent." (Ibid.)
We see no meaningful distinction between the instruction given in Gonzalez and the one we consider here. Each told the jury that one specific fact—a dating relationship or a request for use of a condom—did not by itself constitute consent. Moreover, here, the court instructed the jury with CALJIC No. 10.00, which informed the jury that rape constituted intercourse with another person "against that persons will," a term defined as "without the consent of the alleged victim." Further, the court instructed the jury with CALJIC No. 10.10, which informed the jury that forced oral copulation constituted oral copulation "against the will of the victim," a term also defined as "without the consent of the alleged victim." In addition, the court instructed the jury, pursuant to CALJIC No. 2.90, that appellant was presumed innocent and that the prosecution had the burden of proving his guilt beyond a reasonable doubt. We see no basis for concluding that, given those instructions, the jury could conceivably have construed the instruction we consider here as shifting the burden of proving consent to appellant, thus violating his right to due process. (Gonzalez, supra, 33 Cal.App.4th at pp. 1443-1444.)
Appellant suggests that the instruction somehow "limit[ed] the jurys freedom to consider otherwise competent evidence casting doubt on non-consent." It did not. It told the jury that it could consider the alleged victims request that a condom be used—or, in this case, the alleged victims purchase of condoms—but that it could not determine that she had consented based solely on that evidence. Seen in that light, the instruction did not lessen the prosecutions burden of proving lack of consent beyond a reasonable doubt. (Cf. Martin v. Ohio (1987) 480 U.S. 228, 233-234.) While the State may not limit the evidence a jury may consider in determining whether the prosecution has met its burden of proof on each element of a crime (ibid.), the State does enjoy wide latitude in defining those elements. (Patterson v. New York (1977) 432 U.S. 197, 205-206.) The instruction given by the trial court here defined consent in a particular context and thus did not violate appellants right to due process of law. (Gonzalez, supra, 33 Cal.App.4th at pp. 1443-1444.)
III. DISPOSITION
On April 18, 2003, the Attorney General requested that we take judicial notice of the 1994 Senate Committee of the Judiciary Analysis of Senate Bill No. 1351, pursuant to which the Legislature enacted section 261.7. On April 22, 2003, we deferred consideration of that request pending our decision on the merits. We now deny the request as moot.
We concur Corrigan, J. and Parrilli, J.