Opinion Bank # O-102 [Consent: Improper To Define As “Positive Cooperation In Act”]
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
Plaintiff and Appellant F015089, F016968
v. (Super. Ct. Nos, 255596, 257084)
VIRGIL DELL BULLOCK, OPINION
Defendant and Appellant.
CONSOLIDATED APPEALS from a judgment of the Superior Court of Stanislaus County. Frank S. Pierson, Judge.
Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Carnand Venturi, J. Robert Jibson and Shirley A. Nelson, Deputy Attorneys General, for Plaintiff and Appellant.
STATEMENT OF THE CASE
Defendant Virgil Dell Bullock appeals after conviction of violation of Penal Code [FOOTNOTE 1] sections 245, 261, 288a and 289 (assault with a firearm, rape, forcible oral copulation and penetration with a foreign object), contending instructional error resulted in a violation of his right to due process and that, in any event, resentencing is required.
The People appeal from the September 23, 1991, sentencing hearing held subsequent to the filing of defendant’s initial appeal, arguing that the abstract of judgment dated September 24, 1991, must be amended. Defendant cross-appeals, requesting review pursuant to People v. Wende (1979) 25 Cal.3d 436.
We have ordered the appeals and cross-appeal consolidated for disposition in one opinion.
STATEMENT OF FACTS
A. Procedural History
By information No. 255596, defendant was charged with rape (§ 261), forcible oral copulation (§ 288a, subd. (c)) and penetration with a foreign object (§ 289). It was also alleged that he inflicted great bodily injury during the commission of the rape and penetration with a foreign object (§ 12022.8) and that he used a firearm during the commission of these offenses (§ 12022.3, subd. (a)). In these offenses, the alleged victim was Kristin A. In information No. 257084, defendant was charged with assault with a firearm (§ 245) and it was alleged that during the commission of this offense, he personally used a firearm (§ 12022.5). These offenses involved Teresa B as the victim. The two cases were consolidated for trial.
After jury trial, defendant was found guilty of all counts and each of the special allegations was found true.
B. Factual History
At the time of the assaults, Kristin A. and Theresa B. were 15 and 16 years old, respectively. Defendant was 35 years old.
On May 9, 1990, Theresa and Kristen agreed to accompany a friend of Theresa’s, Carl Pilcher, to Atwater to take Carl’s father home. Returning from Atwater, Carl stopped and picked up the defendant, who got into the backseat of the car next to Theresa. Defendant brought a handgun with him, which was placed in the glove box. The foursome drove around back roads in the Turlock area, drinking beer. Defendant and Kristin were also drinking Southern Comfort whiskey. At one point in the evening, Kristin “flashed” her breasts out the window of the car at a pedestrian. They stopped at a canal bank and Kristin shot the gun once. After firing the gun, she got back in the car and gave the gun to the defendant. Late that evening, they decided to go to Sonora. On the way, the car broke down near Highway 132. At this point, the stories diverge.
Kristin and Theresa testified that after the car broke down Kristin felt ill and began to vomit. Theresa helped Kristin while she was sick. Kristin then passed out across the front seat of the car. Theresa said that Kristin was “flirty” with the defendant prior to becoming sick.
Theresa testified that after she helped Kristin, the defendant talked Theresa into getting into the backseat of the car with him. Defendant repeatedly said, “Lay down” and he pulled her down into the backseat by grabbing her upper right arm “pretty firmly.” She was forced to lean halfway back with her head at about the defendant’s chest level, her feet did not leave the floor of the car. Suddenly, he let her go and said he was “sorry.” Inexplicably, Theresa then laid down on the seat, with her head away from the defendant and her feet on the seat. Thereupon, the defendant unbuttoned her jeans with one hand; he put the other hand on her breasts under her shirt. She tried to push him away, telling him to stop. He then picked up the gun and “put it in my right side next to my nostril and told me if I didn’t do what he wanted he would shoot me. Teresa then told him ‘Go ahead, because I am not going to let you do this to me.'” She was crying and upset. The defendant put the gun down telling her he “couldn’t handle all the crying.” He then told Theresa and Carl to go and get help. Thereupon, Theresa left the car.
Defendant testified he never pointed a gun at her head, but that he touched her “titties” in the car.
After the incident with the defendant, Theresa left with Carl to call defendant’s brother, Edward Thomas Bullock, Jr. (Tommy), to come and give them a ride home. The gun was in the car when Theresa and Carl left to call Tommy.
Kristin testified that after Theresa and Carl left, she woke up because the defendant was touching and rubbing her. She was feeling nauseated again and asked him to stop. He refused and ordered her to orally copulate him. The gun was on the floorboard in the front seat of the car. She looked at it and tried to grab it, but the defendant put his foot over it. He partially undressed both himself and Kristin and again reiterated his demand. He picked up the gun and held it “about an inch or so away from my vagina, and told me that if I didn’t do it — He said he was going to blow my cunt out of my mouth.” Kristin orally copulated him. Next, she was forced to climb on top of him. He inserted his finger into her vagina and then had sexual intercourse with her. Kristin kept telling him to stop, that it hurt. Defendant held the gun during intercourse. After 20-25 minutes, he withdrew and told her to go to sleep. Kristin testified that the defendant explained his actions by saying to her that he did it because his wife left him and he had not had sex in a long time. She got into the backseat and passed out or went to sleep.
Defendant told a very different story. He testified that after Theresa and Carl left, Kristin woke up and behaved in a sexually “assertive” manner, initiating all the ensuing sexual contact. He testified she unbuttoned his pants and “went down on him” on her own initiative. He claimed they kissed for five or ten minutes before intercourse and that she was “turned on.” In fact, he claimed she left a “hickey” on his neck. He further testified her vagina felt moist when he entered her and she never complained he was hurting her. He claimed the gun “never came out of the holster after she shot it.”
Sometime after Kristin fall asleep or passed out again, Theresa and Carl returned with Tommy. Kristin and Theresa testified that upon Theresa’s return, they hugged and Kristin looked upset, telling Theresa she needed to talk to her. Tommy testified Kristin wanted to sit on the defendant’s lap on the ride home, but Tommy did not permit it. Defendant claimed Kristin kissed him goodbye at the end of the evening and asked him to go horseback riding. Theresa and Kristin testified that Kristin did not attempt to sit on the defendant’ s lap and that it was the defendant who hugged Kristin and asked her to go horseback riding.
In closing, defense counsel argued Kristin had “been around” and had “a great deal of carnal and sexual activity.” She argued it was Kristin who initiated the sexual contact with the defendant. This closing statement is consistent with counsel’s opening statement in which she stated “the evidence will show she [Kristin] came on to Mr. Bullock. . . . And she is the one who did all of these things that she says were done to her at gunpoint.” At sentencing, defense counsel continued to argue Kristin was “the initiator of the contacts and the sexual act.”
Defendant contends section 261.6 violates due process by creating an “irrebuttable presumption” a rape victim has not consented to sexual intercourse unless she positively cooperates in the act. [FOOTNOTE 2] He argues that a woman may “passively assent” to intercourse without any positive cooperation either in act or attitude. As a corollary, he asserts CALJIC No. 1.23.1, derived from section 261.6 and given to the jury in the instant case, improperly relieves the prosecution of proving nonconsent “where the victim passively assents but does not show ‘positive cooperation.'”
Even if the concept of “passive assent” was not included within section 261.9, any resulting instructional error is harmless.
While we do not find defendant’s argument in this regard at all persuasive, even assuming for purposes of this analysis only that the giving of CALJIC No. 1.23.1 was erroneous because the definition of consent provided thereby did not include the concept of “passive assent,” any resulting error was harmless. As a general rule, should an instruction affect an element of the offense, [FOOTNOTE 3] reversal is required unless the reviewing court. concludes the error was harmless beyond a reasonable doubt. (People v. Cooper (1991) 53 Cal.3d 1158, 1170-1171; People v. Haves (1990) 52 Cal.3d 577, 628.) Here, the error was undoubtedly harmless as the defendant did not rely upon a claim of passive assent and no evidence supports such a defense.
On appeal, defendant contends that even if the sex was not initially consensual, at some point during the sexual act Kristin could have changed her mind and consented to intercourse without demonstrating any outward manifestation of her newly-found sexual desire. However, absolutely no evidence supports this claim; moreover, ‘passive assent” is completely antithetical to defendant’s trial testimony that she initiated the sexual acts and was at all times the sexual aggressor. For example, defendant’s testimony that Kristin was so amorously inclined she left a “hickey” on his neck is completely inconsistent with the newly alleged “passivity.” Defense counsel repeatedly argued Kristin was the initiator of the evening’s activities and was wise beyond her years. The issue of “passive assent” was never raised. The jury was presented two options: either Kristin was forced to have intercourse at gunpoint and completely against her will, or she not only willingly participated but initiated the sexual contact. Thus, since evidence was presented supporting a defense based on “passive assent” and as defendant did not rely upon this defense at trial, any error resulting from omission of an instruction including this concept is necessarily harmless. (Cf. People v. Fain (1969) 70 Cal.2d 588, 597-598.)
All statutory references are to the Penal Code unless otherwise indicated.
In relevant part, section 261.6 provides: “In prosecutions under Section 261, 286, 288a, or 289, in which consent is at issue, ‘consent’ shall be defined to mean positive cooperation in act or attitude pursuant to 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 prosecution has the burden of proving the victim did not consent to intercourse. (People v. Key (1984) 153 Cal.App.3d 888, 895.)