Opinion Bank # O-264 (Re: F 10.61a / F 10.61b [Evidence Of Other Sexual Activity With Same Victim To Show Actual Consent Or Reasonable Belief In Consent / Evidence Of Other Sexual Activity With Same Victim: Consideration As To Actual Consent And/Or Good Faith Belief In Consent].)
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COURT OF APPEAL
FIFTH APPELLATE DISTRICT
FILED: MAY 10 2000
Eve Sproule Court Administrator/Clerk
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
Plaintiff and Respondent,
(Super. Ct. No. SC00000A)
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kem County. Gary Friedman, Judge.
Jim Fahey, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Stephen G. Herndon and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found appellant John Doe guilty of one count of forcible oral copulation (Pen. Code, § 288a, subd. (c).) [Footnote 1] Ms. C. was the complaining witness. At trial the jury also heard testimony from Ms. W., who testified that appellant had raped her in a motel room in October of 1994. Other allegations of the information were bifurcated and tried to the court without a jury. The court found that appellant: (1) had previously been convicted of forcible rape (§ 261, subd. (a)(2)) and was a habitual sexual offender within the meaning of section 667.71, subdivision (a); (2) had a prior felony conviction within the meaning of California’s three strikes law (§ 667, subds. (b) – (i); § 1170.12); (3) had a previous serious felony conviction within the meaning of subdivision (a) of section 667 (providing for a five-year enhancement); and (4) had served a prior separate prison term within the meaning of section 667.5, subdivision (b) (providing for a one-year enhancement). The court sentenced appellant to a term of 50 years to life, plus the five-year section 667, subdivision (a) enhancement. The sentence was computed by sentencing appellant to 25 years to life under the habitual sexual offender statute (§ 667.71), doubling the minimum term under the three strikes law because of appellant’s one prior felony conviction (see § 667, subd. (e)(1)), and adding the § 667, subdivision (a) five-year enhancement. The court struck the section 667.5, subdivision (b) enhancement
On this appeal Doe raises three contentions of error. First, he contends that his right to due process of law was violated by the court’s admission of evidence of the 1994 Ms. W. rape. Second, he contends that the court erred in instructing the jury with CALJIC No. 10.61. This instruction involves the jury’s consideration of evidence of prior sexual activity between the defendant and the complaining witness. Third, appellant contends that he should have been sentenced only to 25-years-to-life under the habitual sexual offender statute (§ 667.71), plus the five year section 667, subdivision (a) enhancement, and that his 25 years to life term should not have been doubled under the three strikes law. As we shall explain, we find appellant’s second contention to be meritorious. We will reverse the judgment.
Ms. C.’s testimony
Ms. C. was 29 years old at the time of appellant’s trial. In May of 1997, she and her then-husband, Mr. C., lived in an apartment in Bakersfield. They were members of Bakersfield Association of Retarded Citizens (BARC), as were appellant and Ms. W.
Shortly before Mother’s Day in 1997, Ms. C and Mr. C. encountered appellant in downtown Bakersfield. Ms. C had previously been told by Ms. W. that appellant once raped her in a motel room. This information gave Ms. C a weird, strange feeling toward appellant, but Mr. C. nonetheless invited appellant to stay with them. Ms. C. was displeased with this arrangement and told Mr. C. appellant would rape her.
After appellant moved in with Ms. C. and Mr. C., the three of them watched the Playboy Channel and adult movies on several occasions. Ms. C. liked watching such things with her husband, as they made her marriage exciting. Ms. C. did not feel, however, that appellant should be watching Playboy and adult movies with her and Mr. C., and she told Mr. C. as much.
Appellant asked Ms. C. to have sex on numerous occasions while he was staying with her and Mr. C. He also touched her in inappropriate ways on five occasions. The first incident occurred in the bathroom, while Ms. C. was showering and appellant was using the toilet in the nude. Ms. C. tried to dress and told appellant to do the same, but appellant instead said “why should I” and touched her breasts, buttocks and vagina with his penis. Ms. C. told appellant that this was not nice, that he should not do it, and that it did not feel very good. She also screamed loudly for help, but no one came. Mr. C. was doing dishes at the time, and Ms. C. believed he knew what was going on, but he nonetheless did nothing.
The second incident occurred when appellant came into Ms. C.’s bedroom while she was nude and in the process of getting dressed. Ms. C. told appellant to leave the room so she could dress, and Mr. C. also asked appellant to leave, but appellant did not do so. This made Ms. C. feel weird and scared. Ms. C. then tried to watch a movie on HBO, but Mr. C. switched the television from HBO to Playboy, ignoring Ms. C.’s complaint that she did not want to watch Playboy. Ms. C. went to the living room for awhile, but appellant came out, grabbed her hand, pulled her very hard to the bedroom, and started taking off her clothes. Mr. C. said something to appellant, however, and appellant thereafter stopped removing Ms. C.’s clothes.
Later that day Ms. C., Mr. C. and appellant went downtown on a bus, then returned to the apartment. While Mr. C. and appellant relaxed in the living room, Ms. C. went to the bedroom to get a hairbrush. Appellant followed Ms. C. into the bedroom, touched her breasts and held her very tight. When Ms. C. told appellant to take his arms off of her, he replied that he loved her and that he was going to touch her “butt.” Appellant took Ms. C.’s clothes off, put her on the bed and asked her if she wanted to have sex, to which Ms. C. replied she did not. Appellant nonetheless put his penis on Ms. C.’s breasts and buttocks, and in her vagina.
The fourth incident occurred one time when Ms. C. was cleaning up a mess in her bedroom. Appellant took off his clothes and Ms. C.’s, ignored Ms. C.’s request that he not do so, told her he loved her and would have sex with her, ignored her reply that she did not love him and that he should not have sex with her, and proceeded to put his penis in her vagina and on numerous parts of her body. Appellant asked Ms. C. to touch his penis, but she refused to do so.
The final incident occurred one time when appellant, then nude, was rubbing Ms. C.’s back and telling her he loved her. Ms. C. replied that she did not love appellant at all. Ms. C.’s brother-in-law, a man named Mr. J who is taller than appellant, was showering in the bathroom at the time. Appellant asked Ms. C. to take her clothes off, but she said she needed to keep them on because if she took them off and Mr. J came in, he would call the police. Appellant then grabbed Ms. C.’s hair and pushed her head down onto his penis. Appellant asked Ms. C. to suck on his penis, and when she said “no,” he told her she had better do so. They fought physically, with Ms. C. pushing appellant in the stomach and kicking his penis, but appellant got control of Ms. C.’s hands and pushed her head onto his penis again. Appellant used his fingers to plug up Ms. C.’s nose, forcing her to open her mouth. He then put his penis in Ms. C.’s mouth. Ms. C. told appellant this was not polite and said “no” when asked if appellant could put his penis in her mouth again.
On cross-examination, Ms. C. said she was married to Mr. C. for six months, then said it was six years. She also said the first two incidents occurred on May 10th or 1lth, i.e., when appellant initially moved in. She reiterated her claim that she fought with appellant during the oral copulation incident, and that her brother-in-law was in the shower at the time. She admitted that while appellant stayed with her and Mr. C., the three of them lived in the same room and same bed, and watched movies together in the bedroom. Ms. C. moved out of the apartment on June 14th and thereafter divorced Mr. C.
On redirect, Ms. C. said that it was Mr. C.’s idea to watch adult entertainment, that she told Mr. C. she was afraid of appellant, that Mr. C. prevented her from calling the police, and that she said “no” each time appellant asked her to have genital or oral sex. On re-cross, she said that although her brother-in-law, Mr. J, was showering at the time of the charged oral copulation, she did not scream for his help.
There were two other witnesses at appellant’s trial, Kern Deputy Sheriff Michael Barnes and Ms. W. Deputy Barnes testified he responded to Ms. C.’s sexual assault compliant on June 22, 1997, two days after she made it. In describing the incident to Barnes, Ms. C. seemed hesitant and visibly upset. She further told him as follows: (1) that she, Mr. C. and appellant had often watched movies together in their bedroom; (2) that she and appellant had been having sex for three months, beginning on Mother’s Day (sic); (3)that she had watched adult films and Playboy before or during sex with appellant; (4) that Mr. C. had been present while she had ;sex with appellant; and (5) that each episode of sexual intercourse between her and appellant began while the three of them were watching adult films. Ms. C. also said, however, that she had told appellant he should not be watching adult materials with her and her husband.
Ms. W. testified appellant raped her in a motel room in 1994. It was stipulated by defense counsel that appellant’s sexual episode with Ms. W. was non-consensual.
Ms. W. also averred that she told Ms. C. about the rape, but upon further questioning by both attorneys, she said she told Ms. C. about it one month before appellant’s trial, and not at any earlier point in time.
CALJIC NO. 10.61
The court instructed the jury with CALJIC No. 10.61 as follows:
“Evidence has been introduced for the purpose of showing that the Defendant and the alleged victim engaged in sexual activity on one or more occasions other than that charged in the case.
“If you believe this evidence, you should consider it only for the limited purpose of tending to show the disposition or intent of the Defendant toward the other person.
“You must not consider that evidence for any other purpose.”
Appellant contends that this instruction was erroneous. He says that the instruction “forbids the jury to consider such prior acts in determining if the complaining witness consented to the charged act[s], and/or if the defendant reasonably believed she did.” We agree.
This case is unusual because both the prosecution and the defense wished to admit evidence of prior sexual activity between appellant and Ms. C., but for different reasons. The prosecution theory was that appellant continually forced himself sexually onto appellant, and that the forced oral copulation was the last in a series of nonconsensual sexual acts. The defense theory was that Ms. C. either consented to the act of oral copulation, or else appellant reasonably believed that Ms. C. consented. On at least three occasions when Ms. C. had sexual intercourse with appellant, Ms. C. and appellant and Ms. C.’s husband were all watching sexually explicit adult films in the bedroom of Ms. C.’s apartment just prior to the intercourse taking place. The jury thus had to be properly instructed on how the evidence of the prior sexual activity between appellant and Ms. C. was to be used. CALJIC No. 2.50.01 told the jury how to utilize this evidence if the jury believed that appellant had raped Ms. C. on several occasions prior to the oral copulation incident. [Footnote 2] This instruction appears to have been intended, however, to guide the jury’s consideration of Ms. W.’s testimony.
The only instruction the jury received on what to do with the several prior instances of sexual intercourse between Ms. C. and appellant came in the form of CALJIC No.10.61. This instruction appears to have been intended for use in cases involving sex crimes where evidence was admitted to show that the defendant had committed the same or similar crimes, on other occasions, against the same victim. (See People v. Koller (1904) 142 Cal. 621), and People v. Jewett (1948) 84 Cal.App.2d 276.) But it does not tell the jury that if the jury deems the prior sexual acts to have been consensual, the jury may consider this evidence as it relates to the question of whether the alleged victim consented to the sexual act charged against the defendant, or whether the defendant had a good faith reasonable belief that the alleged victim consented to the charged sexual act. [Footnote 3] This omission was crucial. The essence of the defense was that Ms. C. consented, or that appellant had a reasonable good faith belief she consented. The issue was not appellant’s “disposition or intent,” but whether Ms. C. consented or appellant had a reasonable good faith belief she consented.
Appellant contends, and we agree, that a modified version of CALJIC No. 10.61.1 should have been given. [Footnote 4] That instruction explicitly points out that evidence of prior consensual sex may be considered in determining whether the alleged victim consented to the charged act and whether the defendant had a good faith reasonable belief that the alleged victim consented. In the present case, we think an appropriate instruction would have read as follows: Evidence has been introduced to show that the defendant and Ms. C. engaged in sexual activity on one or more occasions prior to the charge against the defendant in this case. This evidence may be considered as it relates to the questions of whether Ms. C. consented to the act of oral copulation charged in this case, and whether the defendant had a good faith reasonable belief that Ms. C. consented to the charged act of oral copulation.
Respondent calls our attention to rules which, according to respondent, require us to overlook the fact that CALJIC No. 10.61 was incorrect and told the jury it could not consider prior sexual activity between the defendant and Ms. C. on the issue of whether Ms. C. consented. None of these rules so require. Respondent correctly observes that a trial court has a sua sponte duty to “instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial.” (People v. Flannel (1979) 25 Cal.3d 668, 681.) We are not dealing here, however, with a defendant contending that the court should have given an instruction sua sponte on an issue on which no instruction was given. We are dealing here with an instruction that was in fact given, but was incorrect. “[T]he three fundamental requisites of instructions are : (a) They must deal with the law, not with facts. (b) They must deal with points of law relevant to the issues. (c) They must state the law correctly.” (5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988), Trial, § 2921, p. 3583.) Respondent argues that a “party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Andrews (1989) 49 Cal.3d 200, 218; in accord, see also People v. Sully (1991) 53 Cal.3d 1195, 1218.) This rule does not help respondent because the instruction is not ficorrect in law and responsive to the evidence.”
Respondent calls our attention to a number of cases relying on this rule, but in those cases there was no error. In People v. Hayes (1990) 52 Cal.3d 577, the court concluded “defendant has not established that the instruction as given was erroneous, inadequate, or prejudicial.” (Id. at p. 625.) In People v. Guiuan (1998) 18 Cal.4th 558, the court stated “we conclude that no instructional error appears.” (Id. at pp. 569-570.) In People v. Alvarez (1996) 14 Cal.4th 155, the court rejected an appellant’s claim that two instructions given by the trial court conflicted with each other. The court concluded “[t]here was no conflict.” (Id. at p. 224.) In People v. Rodrigues (1994) 8 Cal.4th 1060, the defendant argued that CALJIC No. 3.31 (requiring a “union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator”) could have led a reasonable juror to conclude that premeditated murder “did not require concurrence of act and the mental states of premeditation and deliberation.” (People v. Rodrigues, supra, 8 Cal.4th at p. 1142.) This argument was apparently made because the version of CAI.JIC No. 3.31 given by the court expressly referred to the crimes of “murder, attempted robbery and burglary” (People v. Rodrigues, supra, 8 Cal.4th at p. 1142, fn. 47), but did not expressly say “first degree murder.” But first degree murder is “murder.” The instruction was thus correct. Furthermore, another instruction given to the jury (CALJIC No. 8.20) expressly addressed first degree murder and “adequately expressed the need for joint operation of act and intent” for first degree murder. (People v. Rodrigues, supra, 8 Cal.4th at p. 1143.) The court also said ” [i]f defendant believed that a modification to CALJIC No. 3.31 was required, he was obligated to request it.” (People v. Rodrigues, supra, 8 Cal.4th at p. 1142.) Thus the defendant could have requested an express reference to “first degree murder” in CALJIC No. 3.31, but the instruction was not incorrect without it.
Respondent also contends that appellant has waived any error. The authorities he cites (discussed above) simply do not stand for that proposition. “The appellate court may … review any instruction given … even though no objection was made thereto in the trial court, if the substantial rights of the defendant were affected thereby.” (§ 1259.) [T] he Legislature has specifically provided that an objection is not required in order to preserve instruction issues affecting the substantial rights of a defendant.” (People v. Hannon (1977) 19 Cal.3d 588, 600.) We are not unmindful of the fact that appellant did not object at trial to the giving of the CALJIC No. 10.61 instruction. He may even have requested it. The record on appeal does not reveal who requested the instruction. … [E]rror is nonetheless error and is no less operative on deliberations of the jury because the erroneous instruction may have been requested by counsel for the defense. After all, it is the life and liberty of the defendant in a case such as this that is at hazard in the trial and there is a continuing duty upon the part of the trial court to see to it that the jury are properly instructed upon all matters pertinent to their decision of the cause.’ Accordingly, if defense counsel suggests or accedes to the erroneous instruction because of neglect or mistake we do not find ‘invited error’; only if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court’s obligation to instruct in the cause.” (People v. Graham (1969) 71 Cal.2d 303, 319.) No tactical purpose for requesting CALJIC No. 10.61 appears on the record before us.
We are further mindful of the rule that “[i]n determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole.” (People v. Romo (1975) 47 Cal.App.3d 976,990 [disapproved on another ground in People v. Bolton (1979) 23 Cal.3d 208, 213-214]; in accord, see also People v. Yoder (1979) 100 Cal.App.3d 333, 338.) Although respondent calls our attention to other instructions that were given in this case, CALJIC No. 10.61 was the only instruction which told the jurors what use to make of evidence of prior consensual sexual activity between appellant and Ms. C.. And it forbade the jurors from considering evidence of prior consensual sexual activity on the issue of whether Ms. C. did or did not consent to the act of oral copulation charged in this case and whether appellant did or did not have a good faith reasonable belief that she consented. This was error.
We think it is reasonably probable that a result more favorable to appellant would have been reached in the absence of the instructional error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Ms. C. testified that appellant stayed with her and her husband at her apartment from May 10 to June 14. The apartment had a living room, one bedroom, one closet, one bathroom, one storage space, and a kitchen. During his stay at the apartment, appellant slept in the bedroom and in the same bed with Ms. C. and her husband. The first instance of sexual intercourse between appellant and Ms. C. occurred within a day or two of appellant’s arrival. Appellant, Ms. C. and Ms. C.’s husband watched sexually explicit adult videos for several hours together in the bedroom. Then Ms. C. had sex with her husband in appellant’s presence. Then Ms. C. had sex with appellant in the presence of her husband. Ms. C. testified that she worked at the organization known as the Bakersfield Association of Retarded Citizens (BARC). She testified that during the month of May, she worked Monday through Friday at BARC. Thus, according to Ms. C., she went to work and then came home every day and got back into bed with a man who had raped her. [Footnote 5] She also testified that her mother lived four blocks away from her house. When she ultimately left the apartment on June 14, she went to live with her mother. Deputy Barnes testified that Ms. C. told him that each incident of sexual intercourse between appellant and Ms. C. began with Ms. C., Ms. C.’s husband and appellant watching X-rated or adult films together. Ms. C.’s own testimony does not appear to have contradicted this, except possibly for the last incident of sexual intercourse and oral copulation between appellant and Ms. C.. But she did testify that her husband’s brother, Mr. J, was in the apartment at the time of the last act of sexual intercourse between her and appellant. At this time, Mr. J was taking a shower in the one bathroom. The bathroom adjoined the bedroom. Anyone using the bathroom had to go through the bedroom in order to get to and from the bathroom. Ms. C. testified that appellant was naked, took off her clothes, and had sex with her in the bedroom. Then the act of oral copulation involving Ms. C. and appellant took place in the bedroom after Mr. J had left the shower, gotten dressed, and was in the living room. Mr. J was not a small person and was taller than appellant, but Ms. C. did not scream for help from Mr. J. Under these circumstances, it was crucial that any instruction given on the use to be made of evidence of prior sexual acts involving Ms. C. and appellant be correct. “Jurors are presumed to understand and follow the court’s instructions.” (People v Holt (1997) 15 Cal.4th 619, 662.)
The judgment is reversed.
Footnote 1: All further statutory references are to the Penal Code unless otherwise stated.
Footnote 2: The court instructed the jury with the pre- 1999 version of CALJIC No. 2.50.01 as follows:”Evidence has been introduced for the purpose of showing that the Defendant engaged in a sexual offense other than that charged in the case.
“`Sexual offense’ means a crime under the laws of the State or of the United States that involves any of the following:
“(1) Any conduct made criminal by Penal Code, Section 261(a)(2), Forcible Rape. The elements of this crime are set forth elsewhere in these instructions.
“(2) Contact, without consent, between any part of the Defendant’s body or an object and the genitals or anus of another person.
“(3) Contact, without consent, between the genitals or anus of the Defendant and any part of another person’s body.
“If you find that the Defendant committed a prior sexual offense, you may, but are not required to, infer that the Defendant had a disposition to commit the same or similar type 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 of which he is accused.
“Unless you are otherwise instructed, you must not consider this evidence for any other purpose.”
Footnote 3: The jury was properly instructed that forcible oral copulation requires an act of oral copulation “against the will of the victim” (CALJIC No. 10.10), that “`against the will’ means without the consent of the alleged victim” (ibid.), and that “the word ‘consent’ means positive cooperation in an act or attitude as an exercise of free will” (CALJIC No. 1.23.1). The court also instructed the jury that “a reasonable and good faith belief that there was voluntary consent is a defense to” a charge of forcible oral copulation. (CALJIC No. 10.65.)
Footnote 4: The unmodified CALJIC No. 10.61.1 states: “Evidence has been introduced for the purpose of showing that the defendant and (alleged victim) engaged consensually in sexual intercourse on one [or more] occasions prior to the charge against the defendant in this case.
“If you believe this evidence, you should consider it only for the limited purpose of tending to show that [ (alleged victim) consented to the act[s] of intercourse charged in this case] [, or] [the defendant had a good faith reasonable belief that (alleged victim) consented to the act of sexual intercourse].
“You must not consider that evidence for any other purpose.”
Section 1127d, subdivision (a), provides: “In any criminal prosecution for the crime of rape, or for violation of Section 261.5, or for an attempt to commit, or assault with intent to commit, any such crime, the jury shall not be instructed that it may be infeffed that a person who has previously consented to sexual intercourse with persons other than the defendant or with the defendant would be therefore more, likely to consent to sexual intercourse again. However, if evidence was received that the victim consented to and did engage in sexual intercourse with the defendant on one or more occasions prior to that charged against the defendant in this case, the jury shall be instructed that this evidence may be considered only as it relates to the question of whether the victim consented to the act of intercourse charged against the defendant in the case, or whether the defendant had a good faith reasonable belief that the victim consented to the act of sexual intercourse. The jury shall be instructed that it shall not consider this evidence for any other purpose.”
The question of whether the unmodified CALJIC No. 10.61.1 complies with section 1127d has not yet been addressed in any published opinion. We note, however, that the CALJIC No. 10.61.1 language saying that prior consensual sexual intercourse may be considered for the purpose of “tending to show that the (alleged victim) consented to the act(s) of intercourse charged in this case” appears to come at least dangerously close to violating section 1127d. Section 1127d says that such evidence may be considered in determining whether the victim consented to the charged act. It does not say that such evidence tends to show consent to the charged act. Whether the prior consensual intercourse does or does not tend to show consent appears to be a question which section 1127d leaves to the jury. The first sentence of section 1127d expressly prohibits instructing the jury that prior consensual intercourse makes consent to the charged act “more likely.” Our proposed instruction therefore eschews use of the words “tending to show that (alleged victim) consented to” the currently charged act. Instead we use the language of section 1127d itself. As we see it, section 1127d allows the defense to argue that prior consensual intercourse makes consent to the currently charged act more likely, and allows the jury to accept or reject this inference, but prohibits the court from instructing that this inference must necessarily be drawn.
Footnote 5: This was a prosecution under section 288a, subdivision (c) (forcible oral copulation). It was not a prosecution under subdivision (g), which criminalizes an act or oral copulation when “the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act.” The prosecution and the defense stipulated that “[t]he mental capacity of the Defendant and the witnesses is not at issue,” and the jury was so instructed. It is apparent from the trial transcript, however, that Ms. C. had some difficulty in relating the chronology of the events which happened during appellant’s stay at her apartment, and that the trial court allowed considerable latitude to the prosecutor in eliciting her testimony.