Opinion
B294170
02-11-2020
THE PEOPLE, Plaintiff and Respondent, v. BRADY JOHN WOOD, Defendant and Appellant.
John Steinberg for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, William H. Shin and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA071960) APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, Judge. Affirmed. John Steinberg for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, William H. Shin and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
In an information filed October 6, 2017, the Los Angeles County District Attorney's Office charged defendant and appellant Brady John Wood with rape by use of drugs (Pen. Code, § 261, subd. (a)(3)). It was alleged that defendant administered a controlled substance (Ambien) during the commission and attempted commission of the offense (§ 12022.75, subd. (b)(1)). Defendant pleaded not guilty and denied all special allegations.
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, defendant was found guilty as charged. The jury also found true the administration of drugs allegation. He was sentenced to 11 years in state prison, and various fines were imposed.
Defendant timely appealed. He argues that there was insufficient evidence of the corpus delicti of rape and administering of an intoxicating substance to allow the admission of defendant's out-of-court admissions.
We affirm.
BACKGROUND
I. The People's Case
A. Defendant and Theresa W.'s (Theresa) relationship
Defendant and Theresa were coworkers at a coffee shop. Theresa was a waitress and defendant was the chef. The restaurant was closed on Mondays. Defendant and Theresa worked the same shifts five or six days a week. They were friends, but were not romantically involved. At the relevant time, Theresa had a boyfriend and would not have consented to having sex with defendant.
On several occasions, Theresa and appellant had gone drinking together. Usually, Theresa would get drowsy and sleepy from drinking alcohol. It would take about four hard liquor drinks to make her drunk. On one occasion, she passed out after a night of drinking with defendant and another coworker.
B. June 5, 2017 (Monday)
On the evening of June 5, 2017, Theresa went to defendant's house to watch a movie. She arrived by Uber because she did not have a car. Initially, defendant and Theresa were drinking in the kitchen. Defendant poured a glass of Hennessy and gave it to her. Defendant then suggested that they go upstairs to watch a movie. They sat on the couch and were about two feet apart. Defendant went downstairs and brought another glass of Hennessy to Theresa. She also had a glass of rum and Coke. While watching the movie, Theresa became drowsy, tired, and extremely sleepy. Although she would generally feel tired after drinking alcohol, she would not become extremely sleepy, drowsy, or tired. She also would not pass out when she was drunk, except on that one occasion.
The next thing Theresa remembers was waking up to her phone ringing. She was on defendant's bed. She was wearing her underwear, but she did not have pants on. Her pants were on the floor next to the bed. Defendant was standing in the doorway of his bedroom and calling her phone to wake her up. Generally, she did not take off her clothes when she was drunk. Theresa asked defendant why she did not have any pants on, and he told her that she must have taken her pants off while she was asleep. Because Theresa trusted defendant, she did not inquire further. Defendant drove Theresa home.
C. June 6, 2017 (Tuesday)
The following night, defendant, Theresa, and a coworker made plans to watch a movie at defendant's house after work. The coworker did not show up. Defendant took a drink out of the freezer and gave it to Theresa. The drink was very strong. After she finished the drink, defendant and Theresa went to defendant's girlfriend's house to drop off a dog. They returned to defendant's house to watch a movie.
Defendant suggested watching a movie in his room. He left the room and returned with a glass of wine. They were sitting at opposite ends of the couch. His arm was resting on the back of the couch and did not touch Theresa. She recalled spilling the wine on herself and did not remember how much alcohol she consumed.
Theresa felt drowsy and very tired. Her head bobbed and she could not stay awake. This was unusual because she had only consumed two drinks. She remembered falling asleep, but did not recall undressing or climbing into defendant's bed. She woke up at around 4:00 a.m. and the room was pitch black. She was naked on defendant's bed. She became scared because she could not remember what had happened. She found her phone, turned on the flashlight, found her clothes, and got dressed. She got an Uber ride home. When she arrived home, she took a shower. She did not recall feeling any physical discomfort in her vagina.
D. June 7, 2017 (Wednesday)
The following day, Theresa called defendant and asked him what had happened the night before. He told her that she had fallen asleep. When Theresa asked him why she was naked, defendant said that she must have taken her clothes off in her sleep. He did not tell her that they had had sex. Theresa was crying. She did not believe defendant. The entire situation did not feel right to her. She called her boyfriend and told him what had happened.
Later, defendant called Theresa to tell her that he had not been truthful during their prior telephone call. He told her that they had had sex. He did not tell her earlier because she was "freaking out." Theresa did not consent to having sex with defendant.
Theresa was afraid to go to the police because she could not remember any details and thought no one would believe her. Two days later, a friend encouraged her to report the incident to the police. Theresa underwent a sexual assault examination.
E. Pretext phone call
Two Los Angeles County Sheriff's deputies interviewed Theresa, who reported that she did not have any signs of sexual intercourse. Detective Scott Woods interviewed Theresa, and she agreed to make a pretext phone call to defendant, which was recorded. During the phone call, Detective Woods observed that Theresa was upset. When defendant told her that they had ingested Ambien, she was in shock and her demeanor completely changed. The recording was played for the jury.
During the pretext call, defendant said that Theresa had suggested taking Ambien. Theresa then asked defendant what Ambien was. Defendant told her that it was a prescription drug and claimed that he did not remember why they had ingested it. Afterwards, they went upstairs. Defendant said that he initiated the kissing. They took off their clothes and had sex.
Theresa told defendant that she had recalled that her head was bobbing because she was so tired. She asked defendant if she appeared to be falling asleep. He said, "no." He thought that everything was okay between them. After they had sex, defendant went to the bathroom. He then went to get more drinks. When he returned, Theresa was asleep so he went to sleep in his parents' bedroom.
Defendant told Theresa that he did not tell her about the incident in their prior phone call because she was upset. He thought everything was okay until she called and was crying on the phone. He did not know what to do so he lied to her.
Theresa was shocked and angry that defendant gave her Ambien without her knowledge. She did not know what Ambien was prior to calling defendant. Her parents were drug addicts so she never would have agreed to ingest Ambien or have sex with defendant.
F. Police interviews
Detective Woods conducted telephone interviews with defendant. The interviews were played for the jury.
1. First interview
During the first call, defendant told Detective Woods that Theresa went to his house on a Monday night. Defendant and Theresa had whiskey and Coke, and watched a movie. She did not drink a lot and fell asleep on his bed. He left the room. He later woke her up and drove her home. She did not have pants on and defendant denied taking them off. He denied taking Ambien.
On the following Tuesday night, a group of people were supposed to go to defendant's house, but only Theresa showed up. They watched a movie in his room. They were drinking rum and wine. Halfway through the movie, defendant and Theresa went downstairs and took Ambien. They went back upstairs to finish the movie. Theresa spilled wine on herself. Defendant used a towel to wipe off her leg. They started to make out and took off their clothes. They were both drunk and had sex. Defendant did not ejaculate inside of Theresa. Defendant acknowledged that he initiated the kissing when he wiped Theresa's leg.
Defendant said that it was Theresa's idea to take the Ambien. It was the only drug in the house. He claimed that he did not know much about Ambien and was unaware that it was a date rape drug. Theresa seemed to be fully aware of what was going on and defendant thought the sex was consensual. She slept in his bed while he slept in his parents' bed. The following day, he sent a text message to Theresa asking her to contact him when she was awake. She called defendant and asked why she woke up naked. According to defendant, she was "freaked out." She told him that she did not remember what had happened the night before.
Later defendant told Detective Woods that on Monday night, he had taken an Ambien before Theresa arrived at his house. After she arrived, he took another one and she ingested a pill too. Defendant admitted that it was his idea to take Ambien. He dropped a pill in Theresa's drink. After taking the Ambien, Theresa fell asleep. He thought that they would have sex. When he walked into the bedroom, Theresa's pants were off, but he did not do anything.
Detective Woods confronted defendant about not being truthful. Regarding Monday night, defendant claimed that Theresa asked him to put a pill in her drink. He acknowledged that he thought putting a pill in her drink would "put[] her in [the] mood." He admitted that what he did on Monday night was wrong. On Tuesday night, Theresa took the pill. They were both drunk.
2. Second interview
On the same day as the first interview, defendant called Detective Woods to clarify a few things. The phone call was played for the jury.
Defendant admitted that Theresa did not know that he put Ambien in her drink on both nights.
As to Monday night, defendant put a pill in Theresa's drink and it dissolved. She fell asleep and took off her pants. Nothing else happened. Theresa did not know that she would take off her pants after ingesting Ambien.
On Tuesday night, defendant crushed the pill a little bit and put it in her drink. He did it because on the first night (Monday), she had taken off her pants; defendant thought "maybe it would go farther the second night." He thought "[i]t would, like, escalate the second night, like, she might take her pants off again or something." In fact, after she ingested the crushed pill in the drink, Theresa was "touchy." They sat next to each other on the couch and her legs were over his. Theresa spilled wine and defendant wiped her leg with a towel. He continued up her leg and she did not stop him. He kissed her and she kissed him back. They took off their clothes and had sex.
Defendant told his parents about the incident and they threw away the pills. When defendant ingested Ambien with alcohol, it caused him to hallucinate. On Tuesday night, he had bad hallucinations.
G. Forensic evidence
Sandra Wilkinson (Wilkinson) was a nurse at Milford Hospital and conducted a forensic examination of Theresa. There were no physical findings or injuries, but Theresa cried during her interview. She reported that she became really sleepy and fell asleep after drinking.
Wilkinson explained that a "no physical findings" did not mean that no sexual assaulted had occurred. In fact, "the majority of people have no injuries."
Michelle Sandberg (Sandberg), a forensic scientist for the Los Angeles County Sheriff's crime lab, testified that Theresa's urine tested negative for Ambien or Zolpidem, which was the drug with the same name. Alcohol extended the sedative nature of the drug. Because Ambien was a short acting drug, it could have been a false negative test. The lab did not have the ability to test for metabolites or traces of Zolpidem.
II. Defense Case
Defendant did not testify or present a defense.
DISCUSSION
Defendant contends that "[t]here was insufficient evidence of the corpus delicti of rape and administering an intoxicating substance to allow the admission of [his] statements."
I. Background
A. Pretrial motion to exclude
Prior to trial, defendant moved to exclude his extrajudicial statements pursuant to Evidence Code section 402 because the jurors would likely disregard the corpus delicti instruction and reach a verdict based on defendant's statement. Defendant noted that there was no physical evidence in this case.
CALJIC No. 272, which was given to the jury, provides: "No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any confession or admission made by him outside of this trial. [¶] The identity of the person who is alleged to have committed a crime is not an element of the crime. The identity may be established by a confession or an admission."
The prosecutor responded that the evidence only needed to be a slight or prima facie showing to permit a reasonable inference that a crime was committed. The prosecutor noted that defendant and Theresa were in his room. They had had two drinks, which should not have made her fall asleep or pass out. When Theresa was awake, she was clothed and sitting on the couch. When she woke up, she was naked and lying on defendant's bed. According to the prosecutor, this circumstantial evidence supported a reasonable inference that a crime had been committed.
Defendant rebutted that Theresa had told the sheriff's deputy that she did not feel that she was sexually assaulted and felt no physical discomfort. Additionally, there was no indication of penetration. There was no evidence that defendant and Theresa had had sex absent defendant's statements.
The trial court denied defendant's motion to exclude.
B. Motion to dismiss
After the prosecution rested, defendant moved to dismiss pursuant to section 1118.1, arguing that there was no evidence that intercourse had occurred.
The prosecutor recited Theresa's testimony that she passed out after drinking alcohol, which was unusual for the amount of alcohol that she consumed. She woke up in defendant's bed, naked. This was enough for the jury to infer that something sexual had occurred.
After entertaining oral argument, the trial court denied defendant's motion. In so ruling, it relied upon the corpus delicti standard in People v. Jennings (1991) 53 Cal.3d 334, 369 (Jennings), which requires "a 'slight or prima facie' showing." That standard had been met. Defendant voluntarily spoke with Theresa during the pretext call, and he voluntarily spoke with Detective Woods.
The trial court likened this case to Jennings, supra, 53 Cal.3d 334. In Jennings, the victim was found deceased and unclothed. While there was strong evidence of murder, the evidence of rape was not strong. "Although the evidence of rape [was] minimal, [the Supreme Court] deem[ed] it sufficient to satisfy the corpus delicti rule. When the body of a young woman is found unclothed in a remote locale, an inference arises that some sexual activity occurred." (Jennings, supra, at p. 367.) The trial court determined that "we have very analogous facts here. We have a young woman who voluntarily went to a friend's house, who had some alcohol, but certainly not enough to make her pass out or feel the effects like she did. She sat down to watch a movie on a couch and woke up completely naked in a bed."
The trial court also relied upon People v. Ochoa (1998) 19 Cal.4th 353, 406-407, for the proposition that "corpus delicti may be established even in the presence of an equally plausible noncriminal explanation of the events."
The trial court summarized its ruling as follows: "So I think that that's what we are talking about here; is whether there's slight evidence that a crime occurred. And I believe that a woman who goes to a house sober with no intention ever to have sexual relationships with the person that she meets there who she has known and worked with for a long time, she accepts alcohol but does not ask for, does not willing take any sort of other drug or intoxicants, she is uncharacteristically sleepy and passes out, wakes up on a bed naked; I think that that's slight evidence of the crime here." Thus, it overruled the corpus delicti objection and denied defendant's motion to dismiss.
II. Relevant law
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez); see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1126.) Proof of the corpus delicti may be circumstantial; it need only be "'slight'" or "minimal" to permit a reasonable inference that a crime was committed, even if a noncriminal explanation is plausible. (Jennings, supra, 53 Cal.3d at pp. 367, 368; Alvarez, supra, at p. 1171; see also People v. Alcala (1984) 36 Cal.3d 604, 624-625, superseded in part by statute on other grounds as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911.) "There is no requirement of independent evidence 'of every physical act constituting an element of an offense,' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]" (Alvarez, supra, at p. 1171.)
"When the sufficiency of the evidence is challenged on appeal, [we] review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Green (1980) 27 Cal.3d 1, 55, disapproved in part on other grounds in People v. Aledamat (2019) 8 Cal.5th 1, 13.)
III. Analysis
Applying these legal principles, we conclude that the trial court's finding of corpus delicti is supported by sufficient evidence. Theresa went to defendant's house with no intention of having a sexual relationship with him. She accepted alcohol, but did not ask for, or consent to, taking any other intoxicants, including Ambien. After consuming her beverages, she was uncharacteristically sleepy. She passed out and woke up on defendant's bed naked. That evidence is sufficient evidence that a crime occurred, thereby allowing for admission of defendant's out-of-court statements.
In urging us to reverse, defendant argues that there was no evidence (expert testimony or otherwise) of sexual penetration, an essential element of the corpus delicti of rape. "The law's requirements . . . are not so strict." (People v. Jones (1998) 17 Cal.4th 279, 302.) "As Jennings and [People v. Robbins (1988) 45 Cal.3d 867] demonstrate, [the California Supreme Court has] never interpreted the corpus delicti rule so strictly that independent evidence of every physical act constituting an element of an offense is necessary. Instead, there need only be independent evidence establishing a slight or prima facie showing of some injury, loss or harm, and that a criminal agency was involved." (People v. Jones, at p. 303.) As set forth above, that evidence is present here.
It follows that defendant's reliance upon People v. Powers-Monachello (2010) 189 Cal.App.4th 400 is misplaced. All that case recognized was the proposition that "[e]xpert opinion testimony cannot support a finding of the corpus delicti unless the opinion is support by independent evidence." (Id. at p. 413.) Wilkinson did not testify as to the corpus delicti of rape. All she stated was that the majority of people, like Theresa, suffer no injuries after sexual activity, and that a "no physical findings" result does not mean anything regarding whether a sexual assault occurred.
Defendant further argues that because there was "no expert testimony . . . of the presence of an intoxicating drug," the trial court erred in concluding that "there was independent evidence of the corpus delicti [of] rape and administering an intoxicating drug." We are not convinced. Theresa testified that on Tuesday night, she had two drinks. After consuming those drinks, she felt uncharacteristically tired and drowsy; her head was bobbing and she could not keep herself awake. The next thing she remembered was waking up in defendant's bed, naked. She had no recollection of getting undressed or getting on defendant's bed. This evidence was sufficient to draw a reasonable inference that Theresa had been drugged.
It follows that Sandberg's testimony was not problematic. Sandberg did not offer independent evidence that a drug had been administered to Theresa. All Sandberg discussed was the urine test that she conducted and its results, including the fact that the sample was negative for Ambien. --------
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, Acting P. J.
ASHMANN-GERST We concur: /s/_________, J.
CHAVEZ /s/_________, J.
HOFFSTADT