Opinion
D046016
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN J. WELLS, Defendant and Appellant.
A jury convicted Jonathan J. Wells of forcible rape of his aunt, D., and found true the enhancement that she was over the age of 65. (Penal Code, §§ 261, subd. (a), 667.9, subd. (a).) He was acquitted of a burglary charge. The trial court sentenced him to nine years in state prison as follows: six years for the rape conviction; one year for the enhancement; and one year each for his two prior prison convictions.
All statutory references are to the Penal Code unless otherwise stated.
Wells contends insufficient evidence supported his conviction; and, the trial court erred in refusing to instruct the jury with CALJIC No. 10.65. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On May 21, 2003, D., who was 82 years old, called the paramedics and was taken to Scripps Hospital, in Encinitas. She was experiencing pain due to a fall.
On May 22, 2003, Wells, who lived with D., visited D.s neighbor, Jan Jacques, and begged her to drive him to the hospital to pick up D. and take her home. Jacques drove him there, and during the visit, she observed that D. had a bruise on her neck, was in pain, and in no condition to return home immediately. Nonetheless, Wells insisted with D., "I want you to come home now." Jacques did not like the way Wells was interacting with D., and she continued talking to D. Wells told Jacques, "shut the fuck up, bitch" and warned her to mind her own business; or he would spank her hard if she interfered in his interactions with D. Wells also put his fingers over D.s mouth to prevent her from speaking to Jacques.
On May 23, 2003, during a hospital visit, D. confided to Jacques that she felt embarrassed, and recounted, "I havent told anybody, and I dont want to tell anyone, but the night before the paramedics came, [Wells] raped me." D. cried while she described to Jacques that Wells had come towards her; she tripped over his boots, and he told her, "Ive been waiting to do this for a long time." He then proceeded to rape her. Jacques shared this information with a hospital social worker and a nurse.
On May 23, 2003, when registered nurse Dino Summers and her assistant, Jeraldine Potts, sought to give D. a bath, she told them she was not feeling well, and was feeling "sore down there," referring to her "vaginal area." She also told them, "I was raped." When asked by whom, D. explained, "My nephew, he lives with me." He assisted her in repairing her mobile home. D. said that Wells, following his nightly practice, had been drinking. He later went into her bedroom and raped her. He told her he had been waiting years to do this. He partially penetrated her and was "half hard or half erect." Summers wrote in her notes written the day of the incident that D. had stated, "He did penetrate her [sic] but was not able to get into [sic] all the way because Im so tight down there."
Summers examined D. and noticed she had some discoloration on her neck, and bruises on both sides of her thighs; her left knee was bruised and swollen, and her right leg was bruised. She did not notice any vaginal tearing or anything unusual about D.s vagina.
On May 23, 2003, D. was tearful and upset when she confided to a social worker, Cynthia Fore, "My nephew attacked me." D. continued, "[Wells] started at it. He didnt get very far because I have adhesions, growths. Im very tight, swollen. I havent had sex for 20 years. He was so drunk, he wasnt very firm. He tried to penetrate me. If he did it, it wasnt very much. I kept telling him to get out. He said, You just shut the fuck up and stay put. Ive been wanting to do this for two years, and Im not going to stop now." D. told Fore that the morning after the rape, she drove Wells to Target and he tried to get her to hurry up; but, as she told Fore, "I couldnt walk due to soreness, pain the vaginal area. My back hurt, too." D. also said she was afraid Wells would harass her because she disclosed his act of rape. Fore encouraged her to obtain a restraining order against Wells.
On May 23, 2003, D., during an interview with San Diego County Deputy Sheriff Suzanne Fiske, described the incident as follows: At approximately midnight, she stumbled over Wellss boots in the living room of her mobile home. She hit her spine and the back of her head. Wells, drunk and naked, came into her bedroom. He had her pinned down and put his hand across her neck. "[H]e tried and he tried," for "maybe half an hour or something like that" before giving up. D. kept asking him to please stop. He told her, "You shut the f____ up." He also told her, "Ive been waiting for this for two years" and, "Im not gonna stop now." D. explained, using a picture of the female genitalia as an aid, that Wells inserted his penis inside her labia. She specified, "Yeah, because he got to where it was raw." She stated Wells used some Jergens lotion that he smeared on both himself and her.
On May 23, 2003, Sue Dickinson, a sexual assault nurse examiner, performed a physical examination of D., who said she had adhesions in her vagina, which is internal tissue that has grown together, that made the vaginal opening smaller. D. also suffered from post menopausal vaginal atrophy that shrunk the opening of her vagina. D. complained of tenderness on her vagina, and Dickinsons tests showed D.s labia minora and posterior fourchette were swollen, bruised, and red. Also, a dye test used to investigate injuries from rape disclosed that D. had experienced abrasions of the posterior fourchette. Dickinson concluded the injuries were consistent with D.s description, and of penile penetration and sexual assault, because "the area most likely to be injured is the point of first contact . . . where you find injuries when someone has been penetrated, if they were on their . . . back." Dickinson wrote on a form that D. identified Wells as her "alleged assailant."
On May 25, 2003, Deputy Fiske conducted a videotaped interview with Wells, who stated he was D.s caretaker. His version of the incident was as follows: D. fell, and was complaining that her head and back were hurting; therefore, so he went to her bedroom to check on her. Although D. usually wore a nightgown, that night she was naked. She told him, "oh hi honey" and he gave her a kiss on the cheek. He got in the bed and cuddled her. She then put her arm around him, and he rubbed her back and talked to her. She had her back sideways, and "she turned over [his] way and threw her leg over [him]." He continued, "I dont know why I even did it. Its just one of those things that happened. Then it was, I could tell that it wasnt gonna be comfortable for her so I just got up you know, just couldnt do it. So then she you know took over again and started to finish me off." He added that D. put lotion on him.
He admitted he tried to have sex with D., "with her permission," but that it did not work because her vagina was too small. He claims he tried to put his penis in her vagina for "maybe two or three minutes thats it," but he could not, and did not, put it in; he only "bumped the sides" of her vagina. The jury watched the videotape of this interview. Wells did not testify at trial.
An examination of the fitted sheet retrieved from D.s bed found semen that matched Wells DNA profile.
On June 16, 2003, D. consulted with Dr. Seymour Meyers, who practices family medicine, and has treated her since 1979. She told him her nephew had raped her when he was drunk.
D., at the preliminary hearing held on July 1, 2003, testified that on the night of May 20, 2003, she fell backwards in the living room of her mobile home, and went to lie on her bed. At approximately 2:00 in the morning, Wells entered her bedroom with a cold towel he placed on her head. He was naked, and lay next to her before getting on top of her. He put an arm around her neck, holding her down. According to D., "He was trying to have intercourse. And I kept telling him and begging him, please, dont . . . because I cant. Im all closed up from adhesions, but that didnt do any good." She told Wells to stop approximately five or six times, but he told her to "shut the f____ up." She also testified Wells inserted his penis in the lips of her vagina. A transcript of this testimony was read to the jury.
At trial, D. testified somewhat differently about the rape than she did at the preliminary hearing. Her changed testimony was that after Wells entered her bedroom with the wet, cold towel, he threw himself partly over her. She clarified, "But it wasnt — it wasnt that he was trying to choke me, you understand, it was because he was trying to get that towel on my head, and he was so drunk he didnt even know what he was doing." Next, Wells "kind of wrestled around with me for awhile, trying to get somewhere, but nothing happened. So I finally got him up and onto his feet and back into the other room." D. explained, "He was just hugging me and playing around, you know, and with his arm over my neck." She thought Wells was trying to "rape" her, but that he could not do so because he "was so drunk, he was not capable of doing anything." Wells "was rubbing his thing on [her]" She added, "He was giving me a few bumps here and there, you know, and Im trying to push him off." She denied that Wellss penis touched her vagina.
DISCUSSION
I.
We reject Wellss claim that insufficient evidence supported his rape conviction because D. could not be penetrated given her adhesions; his drunkenness; and, his lack of an erection.
In reviewing the sufficiency of the evidence to support a conviction, we determine " whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. " (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jurys conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)
In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code , § 312.) We simply consider whether "`"any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt." " (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict" the conviction will not be reversed. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
"Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . where it is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another." (§ 261, subd. (a)(2).) Moreover, "[t]he essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime." (§ 263.)
Substantial evidence supported the jurys verdict: the medical examination; D.s statements to Jacques, the social worker, the nurses and Dr. Myers; and, D.s preliminary hearing testimony. Although D. reported that Wells was drunk, she also reported his penis was half-erect during the sexual assault. She repeatedly asserted that he stated during the incident he would not stop because he had waited two years to carry out the act. Although D. had adhesions, she understood and agreed that he penetrated her labia minora, which were not closed by the adhesions. As a matter of law, that penetration, however slight, was sufficient to constitute rape. The conflict in the evidence was resolved by the triers of fact. There is nothing in the record to establish that it was physically impossible for Wells to have performed the acts ascribed to him.
II.
We reject Wellss contention the trial court prejudicially erred in denying his request to instruct the jury in the language of CALJIC NO. 10.65, to the effect that he had a reasonable and good faith belief that D. consented to sexual intercourse with him.
CALJIC NO. 10.65 states in relevant part:
In the crime of [forcible rape], criminal intent must exist at the time of [its commission]. [¶] "There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in [sexual intercourse]. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge. . . . [¶] "If after a consideration of all of the evidence you have a reasonable doubt that the defendant had criminal intent at the time of the accused sexual activity, you must find him not guilty of the crime."
The trial court denied the request by relying on the controlling case dealing with this instruction, People v. Williams (1992) 4 Cal.4th 354, 360-361,which states, "In [People v. Mayberry (1975) 15 Cal.3d 143], this court held that a defendants reasonable and good faith mistake of fact regarding a persons consent to sexual intercourse is a defense to rape. [Citation.] Mayberry is predicated on the notion that under section 26, reasonable mistake of fact regarding consent is incompatible with the existence of wrongful intent. [Citations.] [¶] The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victims equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendants mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. [Citation.]
[¶] The defendant bears the burden of raising a reasonable doubt as to whether he harbored a reasonable and good faith but mistaken belief of consent. [Citation.] [¶] In Mayberry, we held that a requested instruction regarding mistake of fact was required when some evidence "deserving of . . . consideration" existed to support that contention. [Citation.] In People v. Flannel (1979) 25 Cal.3d 668, 684-685 and fn. 12 . . ., we further explained that a trial court must give a requested instruction only when the defense is supported by substantial evidence, that is, evidence sufficient to deserve consideration by the jury, not whenever any evidence is presented, no matter how weak. Thus, in determining whether the Mayberry instruction should be given, the trial court must examine whether there is substantial evidence that the defendant honestly and reasonably, but mistakenly, believed that the victim consented to sexual intercourse." (People v. Williams, supra, at pp. 360-361.)
In Williams, the court concluded there was no substantial evidence supporting the Mayberry instruction because, "[The defendant] testified that [the victim] initiated sexual contact, fondled him to overcome his impotence, and inserted his penis inside herself. This testimony, if believed, established actual consent. In contrast, [the victim] testified that the sexual encounter occurred only after [defendant] blocked her attempt to leave, punched her in the eye, pushed her onto the bed, and ordered her to take her clothes off, warning her that he did not like to hurt people. This testimony, if believed, would preclude any reasonable belief of consent. These wholly divergent accounts create no middle ground from which [defendant] could argue he reasonably misinterpreted [the victims] conduct." (People v. Williams, supra, at p. 362.)
Regardless of how strongly Wells subjectively might have believed D. had consented to sexual intercourse, that belief was not formed under circumstances that were objectively reasonable. The night of the incident, D., his 82-year-old aunt, was experiencing head and back pain from her fall. Wells, her caretaker, responded to her complaints of pain, and entered her bedroom to assist her and provide relief from her suffering. Given his relationship to her, it was not reasonable for Wells to construe as consent D.s conduct, consisting of her comment, "Oh, hi, hon"; her state of undress, or her turning to face him. "If the jury had credited appellants testimony it would have found that the prosecution had failed to prove lack of consent, and it would have acquitted on that basis. No reasonable jury reviewing the evidence could have found a mistaken but good faith belief in consent based on ambiguous conduct in this case. If the defense evidence is unequivocal consent and the prosecutions evidence is of nonconsensual forcible sex, the instruction should not be given." (People v. Burnett, supra, at p. 690.)
At any rate, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) As detailed above, D.Ws prior statements to her medical providers and the social worker — made closer in time to the incident — provided overwhelming proof that Wells raped her. The medical evidence, as described above, established that she had been penetrated and sexually assaulted, and was consistent with the statement she gave the examining nurse. It is not reasonably likely the jury would have reached a more favorable verdict if it was instructed with CALJIC No. 10.65.
DISPOSITION
The judgment is affirmed.
We Concur:
McCONNELL, P. J.
BENKE, J.