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People v. Spivey

California Court of Appeals, Second District, Sixth Division
Apr 16, 2009
2d Crim B202979 (Cal. Ct. App. Apr. 16, 2009)

Opinion

NOT TO BE PUBLISHED

Superior Court County, Ct. Nos. 1234377 & 1150237, of Santa Barbara Arthur A. Garcia, Judge

Susan Pochter Stone, 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, Steven D. Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.


GILBERT, P.J.

Shannon Antonio Spivey was convicted by a jury of misdemeanor battery (Pen. Code, § 242), genital penetration with a foreign object (§ 289, subd. (e)) and rape by use of alcohol (§ 261, subd. (a)(3)). In addition, the jury found that Spivey personally inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced Spivey to the upper term of eight years for genital penetration with a foreign object, plus three years for inflicting great bodily injury, plus a consecutive two years (one-third the midterm) for rape, for a total of thirteen years. We reverse the misdemeanor battery conviction as a necessarily lesser included offense. In all other respects, we affirm.

All statutory references are to the Penal Code.

FACTS

On July 15, 2006, Jane Doe was 56 years old and living in the Bridge House Shelter in the City of Lompoc. Darrel Fraker was her boyfriend, although Doe considered him her husband. Spivey also lived at the Bridge House Shelter.

The parties refer to the victim as Jane Doe, so do we.

On the morning of July 15, Doe and Fraker drove a woman named Margaret to a laundromat. While Margaret did her laundry, Doe and Fraker sat in the car and drank rum from a bottle. They also had drinks at a bar. When Margaret was finished with her laundry, they all went to a restaurant. Doe, who is an alcoholic and suffers from blackouts, remembers Fraker leaving the restaurant.

The next thing Doe remembers after seeing Fraker leave the restaurant earlier that day was waking up in her bed at the shelter. It was approximately 5:00 p.m. She was intoxicated and bleeding profusely. A supervisor at the shelter called an ambulance.

At the hospital, Doe initially denied she had been sexually assaulted. Later, she told a nurse that a Black man who lives at the shelter raped her, and that she did not know what caused the damage. She also told her surgeon that a Black man had raped her at a park. After Doe twice told a police officer she had not been sexually assaulted, she told the officer that she was not sure if she had sex or if she consented. She also told the officer that Spivey put something inside her, she told him to stop, but he did not stop. A blood sample taken from Doe showed a blood-alcohol level three times the legal limit for drunk driving.

A surgeon examined Doe and found she was hemorrhaging from her vagina. The doctor discovered that her vagina had a deep laceration between six and seven centimeters long. Such an injury could not be caused by a penis, a ring or a finger with long or jagged nails. It could be caused by a knife or broken glass.

The police interviewed Spivey. Spivey said he met Doe at River Park. She was drinking from a large bottle of rum, although there was only a drop left. She was staggering and fell down, so he invited her to get into his car. Initially, Spivey denied anything physical occurred between him and Doe. Later, he admitted he put two fingers in her vagina. He denied he put anything else inside her. The police drove Spivey to his car. There was blood on the passenger seat. Spivey was arrested.

The police searched River Park and found a used condom. The condom had Doe's blood on the outside and Spivey's sperm on the inside.

Defense

At 3:12 p.m., on July 15, 2006, Officer Joseph Villalobos of the Lompoc Police Department received a call about a woman acting strangely, taking off her clothes and screaming. He found Doe walking down the sidewalk fully clothed and acting normally. He determined Doe had been drinking but was not a danger to herself or others. He let her go.

When paramedic Angela Martinez arrived at the Bridge House Shelter, Doe was bleeding profusely. Doe told Martinez that she had "postmenopausal vaginal bleeding." Doe said the bleeding had begun three hours prior. Doe denied being in pain or having suffered an injury. She was oriented as to time and place. She was intoxicated, but she was not slurring her words to the point Martinez could not understand her. She was able to walk to the gurney.

Nurse Alma Guerra of the hospital's sexual assault response team interviewed Doe. Doe appeared oriented to time and place and did not appear intoxicated. Doe was able to understand Guerra's questions. Guerra filled out a sexual assault report form. Doe responded she was "unsure," when answering many of the form's questions about the circumstances of the sexual assault.

DISCUSSION

I

Spivey contends the trial court erred in refusing to instruct with CALJIC No. 1.23.2 for the rape by intoxication count. Instead, the trial court gave CALCRIM No. 1002.

CALCRIM No. 1002 provides that for rape by intoxication, the People must prove, among other elements, that "the effect of an intoxicating substance prevented the woman from resisting." The instruction further provides: "A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved. [¶] The defendant is not guilty of this crime if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman was capable of consenting. If the People have not met this burden, you must find the defendant not guilty."

The first paragraph of CALJIC No. 1.23.2 defines "[p]revented from resisting" in substantially the same language as the definition given in CALCRIM No. 1002. CALJIC No. 1.23.2 adds a second paragraph, however. It states: "In making this determination, you should consider all the circumstances surrounding the act, including the alleged victim's age and maturity. It is not enough that the alleged victim was intoxicated to some degree, or that the intoxication reduced the person's sexual inhibitions. Impaired mentality may exist and yet the individual may be able to exercise reasonable judgment with respect to the particular matter presented to his or her mind. Instead the level of intoxication and the resulting mental impairment must have been so great that the alleged victim could no longer exercise reasonable judgment concerning that issue." CALCRIM No. 1002 contains no such second paragraph.

The first paragraph of CALJIC No. 1.23.2 provides that in rape by intoxication, " an essential element of the crime is that the alleged victim was prevented from resisting the act by an intoxicating substance. 'Prevented from resisting' means that as a result of intoxication, the alleged victim lacked the legal capacity to give 'consent.' Legal capacity is the ability to exercise reasonable judgment, that is, to understand and weigh not only the physical nature of the act, but also its moral and probable consequences."

The use note to CALJIC No. 1.23.2 states: "This instruction or one comparable to it must be given if the jury requests further definition of the term 'prevented from resisting.'" (Citing People v. Giardino (2000) 82 Cal.App.4th 454.) Spivey points to no such request.

Instead, Spivey argues that the second paragraph of CALJIC No. 1.23.2 is a "pinpoint" instruction that must be given at this request. (Citing People v. Wharton (1991) 53 Cal.3d 522, 570.) He argues the second paragraph of CALJIC No. 1.23.2 pinpoints for the jury that intoxication is not enough to show lack of capacity; a person may be mentally impaired due to intoxication and still have reasonable judgment; and that reduced sexual inhibition due to intoxication does not rise to the level of legal incapacity.

But CALCRIM No. 1002 instructs that the person must be so intoxicated that she cannot understand and weigh the physical nature of the act, its moral character, and probable consequences. Any reasonable juror would understand from the instruction that it is not enough the victim was intoxicated to some degree, or that the intoxication reduced the victim's sexual inhibitions, or that the victim may have been mentally impaired to some degree. CALCRIM No. 1002 makes it clear that the victim must be so impaired that she is unable to understand and weigh the nature of the act. That adequately pinpoints Spivey's defense that Doe was not so intoxicated that she could not give her consent.

At best, the second paragraph of CALJIC No. 1.23.2 is redundant. Spivey cites no authority that the trial court is required to give redundant instructions.

II

The Attorney General concedes that Spivey's misdemeanor battery conviction must be reversed.

The battery count was based on the same act as the count alleging genital penetration with a foreign object. Thus it is a necessarily included lesser offense. (See People v. Clark (1990) 50 Cal.3d 583, 636.) Multiple convictions based on lesser included offenses are prohibited. (People v. Pearson (1986) 42 Cal.3d 351, 354-355.)

III

Spivey contends imposing the upper term sentence violated his right to a jury trial and due process.

The crime took place in July 2006 and Spivey's sentencing hearing was on October 4, 2007. The trial court selected the upper term because: Spivey was on probation, he took advantage of the victim's vulnerability, the crime involved violence and Spivey's prior convictions are of increasing seriousness.

Spivey acknowledges that his argument is foreclosed by People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, both of which were decided a few months prior to sentencing. Spivey believes, however, that Black II and Sandoval violate his federal constitutional rights under Cunningham v. California (2007) 549 U.S. 270. He asserts he is raising the issue here to exhaust state remedies and preserve the right to pursue those challenges in federal court.

Spivey further acknowledges that we are bound by Black II and Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) That being the case, we can add nothing further of consequence. The trial court properly imposed the upper term.

The misdemeanor battery conviction is reversed. In all other respects the judgment is affirmed.

We concur: YEGAN, J., PERREN, J.


Summaries of

People v. Spivey

California Court of Appeals, Second District, Sixth Division
Apr 16, 2009
2d Crim B202979 (Cal. Ct. App. Apr. 16, 2009)
Case details for

People v. Spivey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SHANNON ANTONIO SPIVEY, Defendant…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Apr 16, 2009

Citations

2d Crim B202979 (Cal. Ct. App. Apr. 16, 2009)