Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Nos. FSB047169 & FSB050177, Arthur Harrison, Judge.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, Raymond M. DiGuiseppe and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Defendant Juan Manuel Rojas appeals his conviction for forcible rape, rape in concert and unlawful sexual intercourse involving three victims. We agree that there is insufficient evidence to sustain the conviction for rape in concert. We otherwise affirm the judgment and remand for resentencing.
PROCEDURAL HISTORY
A first amended information charged defendant with one count of forcible rape against Jane Doe No. 1 while acting in concert with one Donald Reeder, and with one count of forcible rape against Jane Doe No. 1. (Pen. Code, § 264.1; count 1 & Pen. Code, § 261, subd. (a)(2); count 2.) (All further statutory citations refer to the Penal Code unless otherwise noted.) It charged defendant with additional offenses against two other victims. As to Jane Doe No. 2, defendant was charged with three counts of forcible rape. (§ 261, subd. (a)(2); counts 3, 4, 5.) As to Jane Doe No. 3, defendant was charged with one count of forcible rape while acting in concert (§ 264.1; count 6), one count of forcible rape (§ 261, subd. (a)(2); count 7), one count of rape by use of an intoxicating substance (§ 261, subd. (a)(3); count 8), and one count of sodomy by anesthesia or controlled substance (§ 286, subd. (i); count 9). As to all counts, the information alleged that defendant had personally inflicted great bodily injury on the victim or another person in the commission of the offense. As to counts 6 through 9, the information alleged that he personally inflicted great bodily injury on Jane Doe No. 3. (§§ 667.61, subds. (a), (b), (e), 12022.7, subd. (a).) The information also alleged that defendant was convicted in the present case with committing an offense specified in section 667.61, subdivision (c), against more than one victim. (§ 667.61, subd. (e)(5).)
The jury was unable to reach a verdict on counts 1 and 2, and the court declared a mistrial as to those counts. Defendant and Reeder both entered no contest pleas to a newly added count of unlawful sexual intercourse with a person under the age of 18 (§ 261.5; count 10), and counts 1 and 2 were dismissed. The jury found defendant not guilty on all remaining counts except counts 3 (forcible rape against Jane Doe No. 2) and 6 (rape in concert against Jane Doe No. 3), and found the allegations that defendant personally inflicted great bodily injury untrue. It found the multiple victim allegation true.
Reeder is not a party to this appeal.
The court sentenced defendant to 15 years to life on count 3, with a concurrent term of 15 years to life on count 6 and a concurrent term of three years on count 10.
Because no issue is raised as to count 10, we omit any discussion of the facts pertaining to that count, which involves Jane Doe No. 1.
Jane Doe No. 2 and Jane Doe No. 3 were friends. Jane Doe No. 3 was invited to go to a party with Francisco Oropeza, whom she had recently met. She asked Jane Doe No. 2 to go along. Defendant and Oropeza picked up Jane Doe No. 3 and then picked up Jane Doe No. 2. They drove to a house, where they stayed only a short while. They then drove to defendant’s house. Defendant lived in a converted garage adjoining the home where his parents and several siblings lived. There were other men present during the “party” as well.
Jane Doe No. 2 spent a few minutes talking to her ex-boyfriend on the phone. When she finished, defendant sat down next to her. He began stroking her thigh. Jane Doe No. 2 told him to stop, saying she was “not like that.” Defendant replied, “Do you want to make me mad? You don’t want to make me mad.” Jane Doe No. 2 took that as a threat. However, when defendant began trying to pull her pants down, Jane Doe No. 2 told him forcefully to stop. He did not stop, but instead pulled off her pants and panties and leaned against her, pinning her down with his weight. She told him several times to stop, but he did not. Defendant, who had been using methamphetamine and drinking brandy, was unable to achieve a full erection. Nevertheless, he inserted his penis into her vagina two or three times. A knock on the door caused him to desist.
Jane Doe No. 2 went into the bathroom. Afterwards, she went looking for Jane Doe No. 3, whom she found in the bedroom. Jane Doe No. 3 appeared to be drunk—she looked “really tired” and her eyes kept rolling back in her head. At one point, Jane Doe No. 2 saw two other men—not defendant or Francisco Oropeza—in the bedroom with Jane Doe No. 3. Jane Doe No. 3 was “laying there”; she was “knocked out.” Jane Doe No. 2 gave up trying to talk to her and left the house by herself.
Jane Doe No. 3 testified that shortly after she arrived at the house, defendant poured her a drink, in an eight-ounce cup, consisting of brandy and Pepsi. She watched him prepare the drink, which seemed to have “a lot” of brandy in it. She consumed it within about 15 minutes. Immediately after finishing her first drink, she began to drink a second. She drank about half of it. Not surprisingly, Jane Doe No. 3 began to feel dizzy and “out of place.” She found herself in another room with no idea how she got there. At one point, she felt that she could not move and felt that her hands were being held together and her legs held apart. She did not know by whom she was being restrained. She was aware of defendant sitting next to her head on the bed. He was wearing boxer shorts. He said “Come on. Come on.” She understood him to be asking for oral sex. However, she did not recall any sexual contact with defendant. At another point, she heard unidentified voices in the room saying that they should kill her so they could do what they wanted with her. She testified that she was unaware that any sexual activity had taken place until after she woke up. When she first woke up, she had no idea what had happened. She was awakened by her mother screaming at her, asking what had happened and why she had feces on her. Jane Doe No. 3 became aware that her arms were covered with feces. She went into the bathroom and washed her arms, and then left the house with her mother.
The contention that defendant drugged Jane Doe No. 3’s drink is unsupported by any evidence. Toxicology tests revealed a very small amount of Xanax in Jane Doe No. 3’s urine, but a forensic toxicologist testified without contradiction that the result was consistent with Jane Doe No. 3 having ingested the drug hours before she arrived at defendant’s house.
She next recalled waking up in a hospital, undergoing a rape exam. Her vagina and anus felt torn and she was in great pain. Jane Doe No. 3 testified that she received three stitches. She was in severe pain and unable to walk normally for a month. Her injuries took three months to heal.
The nurse who examined her testified that Jane Doe No. 3 had several abrasions in and around her vagina. She described them as minor, a three on a scale of 10. She stated that they could be consistent with consensual sex. Injuries to Jane Doe No. 3’s anus were far more severe, rating seven or eight on a scale of 10. Those injuries were “not necessarily” consistent with voluntary intercourse.
LEGAL ANALYSIS
THE TRIAL COURT HAD SUBJECT MATTER JURISDICTION
With respect to the crimes which were ultimately charged as counts 3 through 9 in this case, a complaint was filed under case No. FSB037524. That complaint was dismissed for lack of evidence. A new complaint was issued under case No. FSB050177, and that case was later consolidated with case No. FSB047169. The complaint in case No. FSB050177, which is contained in the superior court file, is not file-stamped. At defendant’s request, the superior court clerk undertook a search and determined that no file-stamped complaint exists.
Defendant now contends that the trial court lacked jurisdiction to enter judgment on counts 3 and 6 because the complaint in case No. FSB050177 was not “filed.” He cites a number of statutes which, taken all together, he contends, mandate the existence of a “properly filed” criminal complaint as a prerequisite to trial court jurisdiction in a criminal matter. Even if we assume, for the sake of argument, that these statutes do require a properly filed criminal complaint as a prerequisite to the court’s exercise of subject matter jurisdiction, however, defendant’s contentions are without merit because the superior court file does contain a properly filed criminal complaint.
It is undisputed that the complaint exists and is in the court clerk’s file in case No. FSB050177. The sole basis for defendant’s contention is that the document is not file-stamped. Defendant cites no authority, however, that file-stamping by the court clerk is necessary in order to render a pleading “filed,” and we are aware of no such authority. On the contrary, file-stamping is merely a ministerial act which serves as evidence that a document was filed on a particular date. (See, e.g., People v. Hames (1975) 54 Cal.App.3d 40, 43 [notice of appeal admitted received by court clerk in timely manner effective despite absence of clerk’s filing stamp]; Industrial Indem. Co. v. Ind. Acc. Com. (1949) 95 Cal.App.2d 443, 453 [petition deemed filed on date it was deposited with clerk for filing, even though clerk file-stamped it the following day].) A document which is entitled to be filed in the records of the court is deemed filed when it is handed to the clerk of the court for filing and any necessary fees are paid. (See 12 Cal.Jur.2d (1999) Clerks of Court, § 26, pp. 386-387.) The clerk’s failure to file-stamp the document does not affect the presumption that the clerk performed his or her duty to file the document. (Schomer v. R.L. Craig Co. (1934) 137 Cal.App. 620, 626.) Here, the fact that the complaint in case No. FSB050177 is contained in the court file is sufficient to demonstrate that it was properly filed.
THERE IS INSUFFICIENT EVIDENCE OF FORCE TO SUPPORT THE CONVICTION ON COUNT 6
As to Jane Doe No. 3, defendant was charged with one count of forcible rape while acting in concert (§ 264.1; count 6), one count of forcible rape (§ 261, subd. (a)(2); count 7), one count of rape by use of an intoxicating substance (§ 261, subd. (a)(3); count 8), and one count of sodomy by anesthesia or controlled substance (§ 286, subd. (i); count 9). He was convicted only on count 6, forcible rape while acting in concert.
Section 264.1 penalizes “voluntarily acting in concert with another person, by force or violence and against the will of the victim, [to commit] an act described in Section 261 . . . either personally or by aiding and abetting the other person . . . .” Here, the prosecutor conceded that there is absolutely no evidence that defendant personally raped Jane Doe No. 3, and the charges as to her were submitted to the jury solely on the theory that defendant aided and abetted sexual offenses committed by others. Defendant contends that the conviction on count 6 must be reversed because there is insufficient evidence that force was used, within the meaning of section 261, subdivision (a)(2) and section 264.1, or that he acted with the intent to aid and abet a forcible rape. We agree.
Both Pedro Vasquez and Francisco Oropeza testified that they had sex with Jane Doe No. 3 that evening. However, neither was charged with sexually assaulting her. Nor, as far as the record shows, was anyone else, other than defendant, charged in connection with Jane Doe No. 3.
Rape in concert is necessarily forcible rape, as defined in section 261, subdivision (a)(2). (§ 264.1; In re Jose M. (1994) 21 Cal.App.4th 1470, 1477.) The force required for both crimes is identical. (People v. Mom (2000) 80 Cal.App.4th 1217, 1224, disapproved on another point in People v. Griffin (2004) 33 Cal.4th 1015, 1028 (Griffin).)
We begin with defendant’s contention that there is insufficient evidence that a forcible rape occurred. The law of rape “‘primarily guards the integrity of a woman’s will and the privacy of her sexuality from an act of intercourse undertaken without her consent. . . .’ [Citation.]” (Griffin, supra, 33 Cal.4th at p. 1025.) “The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” (Id. at p. 1027; italics in original.) (“Against the victim’s will” and “without the victim’s consent” are synonymous in this context. See People v. Giardino (2000) 82 Cal.App.4th 454, 460 (Giardino).) In order to prove that a forcible rape was committed, there must be a nexus between the application of force and the victim’s lack of consent, i.e., a showing “that [the perpetrator] used force . . . to accomplish intercourse against [the victim’s] will.” (Griffin,at p. 1029.) In contrast, rape of an unconscious person does not require a showing that force was used, because for that crime, the victim’s lack of consent is established by the fact that she was unable to give consent, not that her free will was overcome by the use of force. (See Giardino,at pp. 461-464.)
Here, there is no evidence that anyone accomplished an act of intercourse with Jane Doe No. 3 by means of force. It was undisputed that Jane Doe No. 3 was unconscious during most of the sexual assault. Although Jane Doe No. 3 testified that she awoke at one point and felt that her hands were being restrained and her legs or ankles were being held apart, she did not relate that to any act of penetration or testify that anyone was engaging in sexual intercourse while she was being restrained. She told the nurse who examined her that she awoke and found an unnamed person on top of her, but she did not tell the nurse that the person continued to engage in intercourse with her by the use of force after she awoke. (See In re John Z. (2003) 29 Cal.4th 756, 762 [intercourse which is begun without force may become forcible if continued over victim’s protest by means of force].) Thus, there is simply no evidence that Jane Doe No. 3’s will or sexual privacy was violated by the application of force or by the threat of force. (Griffin, supra, 33 Cal.4th at pp. 1025-1027.) Rather, if anyone had sex with Jane Doe No. 3 without her consent, it was done by taking advantage of her intoxication or unconsciousness. (See Giardino, supra, 82 Cal.App.4th at pp. 461-464.) This will not support a conviction for rape in concert, which by definition is forcible rape only. (§ 264.1; In re Jose M., supra, 21 Cal.App.4th at p. 1477.)
Neither any individual fact recited by the dissent nor the entire recitation collectively supports the conclusion that the sexual assault was accomplished by means of force rather than by taking advantage of the victim’s intoxication or unconsciousness.
It is axiomatic that defendant cannot be convicted of aiding and abetting a crime that was not committed or attempted. (See People v. Perez (2005) 35 Cal.4th 1219, 1225-1226.) Thus, in the absence of any evidence that anyone forcibly raped Jane Doe No. 3 or attempted to do so, defendant’s conviction on count 6 cannot stand.
A reversal based on the insufficiency of the evidence constitutes an acquittal and bars retrial. (People v. Seel (2004) 34 Cal.4th 535, 544; Burks v. United States (1978) 437 U.S. 1, 15-18.) Accordingly, we will order the superior court to enter a judgment of acquittal on count 6.
THE INSTRUCTION ON THE USE OF CHARGED SEXUAL OFFENSES AS EVIDENCE OF PROPENSITY TO COMMIT SEXUAL OFFENSES DID NOT VIOLATE DUE PROCESS
Defendant contends that the trial court violated his right to due process by instructing the jury that it could consider the charged offenses as evidence of his disposition to commit sexual offenses and thus as proof that he did commit the charged offenses. He contends that Evidence Code section 1108, which permits the use of evidence that a defendant committed “another sexual offense or offenses” to prove disposition to commit such offenses, is constitutional only in the context of uncharged sexual offenses. He contends that the California Supreme Court held as much in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), when it held that Evidence Code section 1108 is saved from violating due process because it is expressly made subject to Evidence Code section 352, which permits the trial court to exclude evidence of uncharged offenses if the court finds that the evidence would be unduly prejudicial. (Falsetta, at pp. 912-919.) Defendant notes that although evidence of uncharged offenses can be excluded by application of Evidence Code section 352, evidence of the charged offenses cannot be excluded by application of that section.
In Falsetta, supra, 21 Cal.4th 903, the California Supreme Court did not address the precise question defendant raises. The court’s discussion, particularly with respect to the application of Evidence Code section 352, appears to assume that Evidence Code section 1108 applies only to uncharged, prior sexual offenses. (See Falsetta, at pp. 916-919.) It did not address the situation here, where the defendant is charged with multiple sexual offenses against multiple victims and the jury is instructed that it can use one or another of the charged offenses to support the inference that the defendant has a disposition to commit such offenses and that he therefore committed the other charged offenses. Defendant relies on People v. Quintanilla (2005) 132 Cal.App.4th 572 (Quintanilla), which held that Evidence Code section 1109, which is analogous to Evidence Code section 1108, is limited to evidence of uncharged instances of domestic violence to prove the defendant’s propensity to commit such offenses. (Quintanilla,at pp. 582-583.)
Certiorari was granted in Quintanilla, supra, 132 Cal.App.4th 572, solely on its resolution of a sentencing issue, and the United States Supreme Court vacated the judgment and remanded the case for further proceedings in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]. (Quintanilla v. California (2007) ___ U.S. ___ [127 S.Ct. 1215, 167 L.Ed.2d 40].)
We disagree with Quintanilla’s conclusion that because evidence of charged offenses is not subject to exclusion based on Evidence Code section 352, those offenses can never be used as propensity evidence pursuant to Evidence Code section 1108 or section 1109. (Quintanilla, supra, 132 Cal.App.4th at pp. 582-583.) Although the defendant cannot object to the admissibility of the evidence of the other charged offenses on Evidence Code section 352 grounds, he or she can object on Evidence Code section 352 grounds to the use of that evidence to prove the defendant’s disposition to commit crimes of that type. (See Quintanilla,at p. 586 [conc. opn. of Pollack, J.].) This conclusion is fully in agreement with the holding of Falsetta, supra, 21 Cal.4th 903. Accordingly, we reject defendant’s contention that the instruction violated his right to due process.
DISPOSITION
The judgment is reversed as to count 6, and the superior court is directed to enter a judgment of acquittal on count 6. The judgment is otherwise affirmed.
In light of our reversal of the conviction on count 6, the multiple victim special circumstance (§ 667.61, subd. (b)) is no longer applicable to count 3. Accordingly, the cause is remanded for resentencing on counts 3 and 10.
The superior court is directed to provide a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
I concur: Gaut, J.
RAMIREZ, P.J., Dissenting
I respectfully disagree with the majority that there was insufficient evidence of force with regard to Count 6, the rape in concert of Jane Doe No. 3 (Doe 3). I begin by stating some pertinent facts omitted by the majority opinion.
Defendant’s one bedroom (garage) apartment could only be entered through a door at its north side—there was no access to it through the adjoining house his parents and siblings occupied. In the living room/kitchenette of his apartment was a couch, a love seat and a poster bed with sheets on it. In the bedroom was a mattress with no sheets on it, sitting atop box springs which were on the floor. The bathroom could only be entered by going through a portion of the bedroom. Pornographic pictures hung on the walls of the living room/kitchenette.
Both Doe 2 and the case agent described them as such, however, they were more in the category of “Playboy” pictorials.
Jane Doe No. 2 (Doe 2), testified that she was 18 years old at the time of the crimes, and had not met defendant before the night of October 26, 2002. She said Doe 3 had more than one alcoholic drink when they stopped first at the home of someone known to defendant or Francisco Oropeza or both before they arrived at defendant’s apartment, but Doe 2 had no alcohol. At the time of the sexual interaction between Doe 2 and defendant, they were alone in the living room/kitchenette and Doe 3 was out of Doe 2’s sight. After Doe 2 resisted defendant’s unwanted advances, he told her to relax before engaging in a tussle with her over the removal of her pants. The forcible rape of Doe 2, for which defendant was convicted occurred in the living room/kitchenette. Afterwards, Doe 2 went to the bathroom, where she remained for a minute. She testified that she then went into either the living room/kitchenette or the bedroom. Doe 3 was sitting on the bed in that room, wearing clothes. Also in the room was a Hispanic man that Doe 2 had seen when they had stopped at the house they had gone to before going to defendant’s apartment. There was also another man present. One of them had a gun and was pointing it at the other. Doe 3’s eyes kept rolling back in her head and she looked really tired. She was mumbling, but Doe 2 could not understand what she was saying. Doe 2 thought that Doe 3 had had a lot to drink. Doe 2 made some statements to Doe 3, but Doe 3 did not hear her because she was “knocked out.” Doe 3 lay on the bed. After Doe 2 made the decision to leave, people came and went from the living room/kitchenette. When no one offered to help Doe 2 get home, she left the garage apartment on her own.
Doe 3 denied drinking alcohol at this earlier stop, saying she drank only at defendant’s garage apartment.
The majority reports that after leaving the bathroom, Doe 2 “went looking for . . . Doe . . . 3, whom she found in the bedroom.” (Maj. opinion at p. 4) However, the bedroom was immediately outside the bathroom door, and anyone leaving the bathroom necessarily went into the bedroom before moving further through the apartment.
This man had arrived at defendant’s apartment some time after Doe 2 and Doe 3 arrived there in the company of defendant and Francisco Oropeza. It could not have been defendant’s high school friend because he was not at the house the four visited before going to defendant’s apartment. (Although defendant contradicted this by testifying that they went to his high school friend’s house first, then to Florencio Castillo’s, where they dropped off the former.) It could have been Florencio Castillo, whose house the four visited, according to Francisco Oropeza.
Doe 3 was 17 years old at the time of the offenses, had consumed zanax some hours before arriving at defendant’s apartment and had never before had the type of brandy she was served by defendant. She had not met defendant before that night, but had met Francisco Oropeza a week before. Defendant fixed drinks of a great deal of brandy and cola for her at his apartment. She had one-and-a-half such drinks in a blue plastic cup. The cup was later found on the nightstand next to the mattress/box springs in the bedroom. She felt dizzy and had to sit down, which was unusual for her after having only one drink. The next thing she remembered was being in the bedroom, in the dark, being held or bound by her hands and her legs. Her hands were being held together above her head with someone’s hands, as though that person was holding her from the back, and her legs were apart, with her ankles being held. She did not recall how she got there. She could not move. She heard a voice or voices coming from her left saying that they should kill her so they can do what they want with her, but it was too dark to see anything. She asked for help. She testified that “when she was getting attacked . . . [¶] [defendant] . . . t[old her] to ‘calm down’ or ‘come on.’” At that time, defendant was sitting on her left side on the edge of the bed in his boxer shorts, near the nightstand where the cup she had been drinking from was located. She continued that while she felt her wrists and ankles being held, “[defendant] was telling me[,] ‘Come on. Come on.’ Because my head was by his lap. [¶] And I told him, ‘No.’ [¶] . . . [¶] [T]he context of his comments [was f]or me to come towards him and my head was by his lap, so I took it as he wanted me to perform oral sex on him and I told him, ‘No.’” She lost consciousness. She woke up in the bedroom when her mother arrived and came in to get her. She had fecal matter on her arms and she and her mother went into the bathroom where they washed it off. There were two men in the bathroom at the time. She had not consented to having sex with anyone that night and, at trial, had no recollection of having sex with anyone. However, shortly after the crimes, she had told the nurse who examined her that she had woken up with someone’s penis inside her.
Contrary to the assertion in defendant’s reply brief, this testimony was not excluded by the trial court.
The majority reports this fact as the victim awakening to an unnamed person on top of her.
Both Francisco Oropeza and a man who had been defendant’s friend since high school and was also at defendant’s apartment that night testified that they had consensual vaginal and anal intercourse with Doe 3, one at a time, in that order, and her feces ended up on themselves and her. Defendant’s high school friend testified that he met Doe 3 for the first time that night. Defendant admitted at trial seeing his high school friend having sex with Doe 3 in the bedroom while he walked through it on his way to the bathroom. He also told the case agent that he had seen Francisco Oropeza having sex with Doe 3 in the bedroom, but at trial, he claimed he had meant to say he saw only his high school friend doing this. At trial, Francisco Oropeza claimed the he, “Jose” and Florencio Castillo saw defendant’s high school friend and Doe 3 having sex when they passed through the bedroom on their way into the bathroom. However, he also said that immediately before going into the bathroom, only he, Florencio Castillo, defendant’s high school friend and defendant were at the apartment. Defendant’s high school friend told a defense investigator that when he went into the bedroom to have sex with Doe 3, she was already lying on the bed, contrary to his testimony that she walked into the bedroom with him. Condom wrappers the defendant testified had not been there before the night of the crimes were found at the foot of the bed in the bedroom. Defendant’s high school friend testified that defendant had gotten him a condom to use when he was having sex with Doe 3 and one of the wrappers on the floor was from the one he used. The friend also said that after he emerged from the shower following his tryst with Doe 3, he saw defendant sitting on the bed next to her as she was putting her clothes on. He also said that defendant used a shirt to try and clean the feces off the mattress. Defendant admitted that Doe 3 was drunk that night and that he had mixed her drinks. He also admitted that he purposefully delayed taking the two victims to his apartment until his parents were asleep in the adjoining house because he wasn’t supposed to be partying there.
This man was at least 21 years old at the time of the crimes, as he was 25 when he testified four years later. I notice that in his opening brief, appellate counsel for defendant refers to these two men as “youths.” Clearly, this man was not. The jury saw Francisco Oropeza and could determine for itself how old he was at the time of the crimes, but we have no way of determining from the record before us (and neither does appellate counsel for defendant) how old he was.
Francisco Oropeza testified at trial that he also had oral sex with Doe 3.
Defendant’s high school friend denied wiping it on Doe 3, but testified, nonetheless, that she had it on her body and he could smell it.
He also said Francisco Oropeza told him he got mad at Doe 3 because she defecated on him while he was having anal sex with her.
However, on cross examination, Francisco Oropeza denied that defendant was in the bathroom with him, saying it was him, Florencio Castillo and “Jose.” Defendant testified that Francisco Oropeza, Florencio Castillo, his high school friend, Jose Acosta and Ricardo Guerrero were there that night. Ironically, when questioned by police, defendant was unable to recall the last names of Francisco Oropeza and Ricardo Guerrero and claimed he did not know the names of the other men, including his high school friend. At one point in her testimony, defendant’s sister had identified defendant as “Jose.” Defendant sister testified that when Doe 3’s mother arrived to take her daughter home, which was right after defendant’s high school friend had sex with her, she saw only defendant, Francisco Oropeza, Florencio Castillo and, perhaps, Ricardo Guerrero at the garage apartment. She did not mention a “Jose” being there, other than her brother.
Defendant correctly concedes, in his briefs, that restraining a victim while performing a prohibited sex act on her constitutes forcible rape. (People v. Griffin (2004) 33 Cal.4th 1015, 1029.)
The testimony of Doe 2 and Doe 3 demonstrates that Doe 3 was in and out of consciousness after consuming the drinks defendant had prepared for her. While conscious, during this time, Doe 3: 1) felt someone holding her hands above her head and her ankles apart; 2) realized she could not move; 3) heard a person or persons saying they should kill her so they could do what they wanted to her; 4) asked for help and, 5) while being attacked, knew that defendant was sitting on the edge of the bed to her left, with his lap near her head, wearing his boxer shorts and telling her to calm down or come on and asking her to give him oral sex, to which she said no.
It is noteworthy that this is what he had said to Doe 2 when she resisted his advances.
Defendant’s concern in his reply brief that his acquittal of forcible rape of Doe 3, rape of her by an intoxicant, and sodomy of her by an intoxicant is incompatible with a guilty verdict for rape in concert is misplaced. Defendant’s acquittal on these charges means only that the jury could not determine, beyond a reasonable doubt, that defendant, himself, had raped or sodomized her, a matter with which I take no issue.
The majority recognizes that Doe 3 (despite, in their eyes, being unconscious during the sexual assault) was able to recall having her hands and ankles restrained, but they dismiss the significance of this because she did not “relate” it to the sex acts that were performed on her.
However, just because by the time of trial, Doe 3 could no longer recall any sex acts being performed on her that night does not necessarily mean she was unconscious while they were occurring. After all, she was able to recall one act of vaginal intercourse when talking with the nurse after the attack. Was the jury entitled to believe her story to the nurse, and to conclude, based on it, that it occurred within the time frame she was being restrained? I think so. Even if the jury disbelieved her story to the nurse, was it entitled, in light of all of the evidence, as described above, to conclude reasonably that, despite Doe 3’s inability to recall, at trial, sex acts being performed on her that night, they, indeed, were performed, and they occurred while she was being restrained? I think so. That evidence includes admission by defendant’s companions that they had engaged in both kinds of intercourse with Doe 3 on the bed despite her claims that she consented to no sex act with anyone, Doe 3’s testimony that she barely knew Francisco Oropeza and did not know defendant’s high school friend at all, defendant’s admissions he had witnessed both men having sex with Doe 3 on the bed, the presence of the fresh condom wrappers at the foot of the bed, the injuries Doe 3 sustained, her recollection that defendant asked her to perform oral sex on him while she was being restrained and the efforts of defendant and his companions to lie about the incident or conceal facts from the police. Therefore, I cannot agree with the majority’s conclusion that there was insufficient evidence to support Count 6.
The prosecutor argued to the jury that Doe 3’s injuries demonstrated that she had been raped.
The prosecutor argued to the jury that it could convict defendant as an aider and abettor even if he was not present in the room at the time of the rape because he “set it up so that she would be in that room.”
See footnote 11, ante at page 5.