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P. v. Aultman

P. v. Aultman
05:25:2013





P










P. v. Aultman

















Filed 5/8/13 P. v. Aultman CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.





IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>






THE PEOPLE,



Plaintiff
and Respondent,



v.



JACQUES AULTMAN, JR.,



Defendant
and Appellant.








E055470



(Super.Ct.No.
SWF10001037)



OPINION






APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. F. Paul
Dickerson, III, Judge. Affirmed.

Susan
S. Bauguess, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

A jury
found defendant and appellant Jacques Aultman, Jr., guilty of (1) rape
accomplished by means of force, violence, duress, menace, or fear (Pen. Code, §
261, subd. (a)(2));href="#_ftn1" name="_ftnref1"
title="">[1] (2) rape where the victim is prevented
from resisting due to an intoxicating substance (§ 261, subd. (a)(3)); (3)
oral copulation with a person under the age of 18 years old (§ 288a, subd.
(b)(1)); (4) oral copulation where the victim is prevented from href="http://www.fearnotlaw.com/">resisting due to an intoxicating substance
(§ 288a, subd. (i)); and (5) sexual intercourse with a minor “who is not more
than three years older or three years younger” than defendant (§ 261.5,
subd. (b)). The trial court sentenced
defendant to prison for a term of 10 years.


Defendant
raises two issues on appeal. First,
defendant contends substantial evidence does not support the conviction for
forcible rape. Second, defendant asserts
the trial court abused its discretion when imposing the upper prison term for
the forcible rape conviction. We affirm
the judgment.

>FACTUAL AND PROCEDURAL HISTORY

The
victim was born in December 1992.
Defendant was born January 22,
1990. The victim was friends
with defendant’s sister, Jackie. On January 15, 2010, the victim agreed
to “hang out” with Jackie. On January 15, 2010, the victim was 17
years old and defendant was 19 years old.
The victim and Jackie went to a housewarming party together at an
apartment complex in Temecula. The party
took place at defendant’s apartment. The
victim’s father drove her to the apartment complex and dropped her off at approximately
7:00 p.m. The victim’s father said he would pick her up
at 10:00 p.m.

There
were approximately six people at the party when the victim arrived. The victim introduced herself to the people
she did not know and then drank a shot of whiskey. The victim stayed in the kitchen area and
consumed five to six shots of alcohol within 10 to 15 minutes. Prior to the party, the victim’s experience
of drinking alcohol included sipping beer; she had never finished a beer before
and had never been drunk. The victim was
drinking shots at this party due to peer pressure, in that Jackie continued
pouring shots for the victim to drink, and Jackie and the victim were “going
shot [for] shot” with one another. At
some point during the five or six shots, defendant entered the kitchen and also
began drinking shots of alcohol.
Defendant had approximately three shots of alcohol. Defendant was present during four of the
victim’s shots, then he left to take a walk.

The
victim was “feel[ing] the alcohol” so she went outside with Jackie and lay down
on the sidewalk. The victim felt hot,
was stumbling over her words, and had difficulty walking up and down the
stairs. Defendant returned from his walk
at the same time the victim and Jackie were moving to return to the apartment. When the victim reentered the apartment it
was approximately 9:30, so the victim
had been at the party for over two hours.
The victim went to the kitchen and drank approximately five more shots
of alcohol with Jackie. Defendant stayed
in the living room, smoking.

The
victim asked Jackie if they could talk and “catch-up” with one another. Jackie agreed, but needed to use the
restroom. At approximately 9:45 p.m., the victim went into a bedroom and
sat on the bed while waiting for Jackie.
The lights in the bedroom were on while the victim was waiting. The victim was expecting her father to call
her cell phone around 10:00 to let
her know he was at the apartment complex to pick her up, so her cell phone was
in her sweatshirt pocket. The victim was
wearing a bra, panties, jeans, tank top, pullover sweatshirt, and sneakers.

The
victim passed out while waiting for Jackie.
When the victim regained consciousness, she was lying on her back, the
lights in the bedroom were off and the door was closed. The victim heard defendant talking to her and
felt defendant on top of her. The victim
tried pushing defendant off of her, and loudly said, “Get off me” four or five
times. The victim could hear people
talking and loud music playing in the apartment. The victim felt defendant kiss her lips and
neck. The victim again lost
consciousness.

The
victim regained consciousness a second time.
The bedroom door was still closed and music was still playing in the
apartment. The victim heard her cell
phone ring, but then the phone was silenced and she did not hear it ring again. The victim said to defendant, “Get off of me
. . . what are you doing . . . I don’t want . . . no, stop . . . go away.” The victim used her hands to try pushing
defendant off of her. The victim’s
sweatshirt was off, her tank top was pushed up, and her bra was pushed aside,
so her breasts were exposed. Defendant
was touching and kissing the victim’s breasts.
The victim again lost consciousness.

The
victim vomited on the carpet. The victim
regained consciousness a third time. The
victim was lying on her back with her legs spread open. The victim’s pants were off. Defendant was naked. Defendant was on top of the victim, holding
the victim’s arms so she could not move them.
Defendant’s erect penis was in the victim’s vagina, and he was moving it
back and forth. The victim said,
“Stop. [¶] . . . [¶] Don’t do it . . . I [am] a virgin .
. . don’t take my virginity.” The victim
again lost consciousness.

The
victim regained consciousness a fourth time.
Defendant placed his penis in the victim’s mouth. Defendant’s hands were on the back of the
victim’s head. The victim remained
conscious for approximately 10 minutes while defendant’s penis was in her
mouth. The victim again lost
consciousness, and did not wake until morning, at approximately 5:45.

When
the victim woke, she was on the floor, wearing another person’s clothes. Defendant was asleep on the bed. The victim found her cell phone next to the
bed. The cell phone had been placed in
silent mode. The victim had missed
approximately 100 calls from her father and best friend. The missed calls began at 10:15 p.m. The victim found her clothes next to the
bed. There was vomit inside her
jeans. The victim could not find her
panties.

Jackie
yelled at the victim for “ditching” her to spend time with defendant. The victim told Jackie that she did not
intentionally “ditch” Jackie, and that she thought defendant raped her. Jackie told the victim defendant did not rape
the victim, rather, defendant “took advantage of the fact that [the victim] was
drunk.” The victim told Jackie she was
afraid defendant could have impregnated her.
Jackie told the victim not to worry about being pregnant, and told the
victim, “[D]on’t say anything because, if you do, I’ll find you [and] hurt
you.” The victim did not know how to
respond, so she stopped talking about defendant.

The
victim called her father at 6:00 a.m. and he said he would pick her up at 8:00
a.m. While waiting for her father, the
victim and Jackie went for a walk around the neighborhood. Walking felt uncomfortable because the victim
was sore. When the victim’s father
arrived, the victim explained she had fallen asleep watching a movie and did
not hear her phone ring. When the victim
arrived home she washed her clothes and took three showers because she “felt
disgusting.” The victim saw bite marks
on her back, a mark on her neck, and bruising on her lower back.

The
victim’s father left to visit family and the victim’s mother was in Orange
County, so the victim was home alone.
The victim called her best friend because she felt scared and “didn’t
want to be by [her]self.” The victim’s
friend picked her up, they went to a coffee shop, picked up Chinese food, went
to Target, and then ate by a duck pond.
The victim told her friend about the incident with defendant. The victim and her friend went to see a movie
and walked around the mall, in order to help the victim forget what
happened.

The
next day, the victim felt more shaken than she had the day following the
incident. The victim was scared, so she
called a different friend. The friend
was at the mall, so the victim met her at the mall. The victim told her friend and the friend’s
mother what happened with defendant. The
friend and her mother told the victim to tell her parents what happened. The victim returned home and told her mother
what happened with defendant. The victim
asked her mother not to call the police.
The victim did not want to contact the police because she was afraid of
Jackie. The victim’s mother called the
police.

The
victim submitted to a forensic examination, i.e., a “rape kit,” on January
17. A forensic nurse examiner employed
by Riverside County, Bethany Thrasher, examined the victim. Thrasher saw marks on the victim’s back and
neck. Thrasher noticed the victim was
sore in her vaginal area and parts of her vaginal area were “more red than the
other surrounding areas.”

Riverside
County Sheriff’s Detective Guzman investigated the rape allegations against
defendant. Guzman spoke to defendant on
March 2, 2010. Guzman asked defendant
why he thought Guzman wanted to speak to him.
Defendant responded, “Because a young girl was afraid of getting in
trouble from her parents so she called the rape charge.” Defendant explained that he offered the
victim a drink when she arrived at the party, but she rejected it, so he
assumed she was not drinking alcohol.
Defendant spent some time talking to the victim in the kitchen, but did
not pay much attention to her because he was focused on another girl at the
party.

Defendant
explained that when he decided to go to his bedroom later in the night, the
victim was laying on his bed. The victim
was giving defendant “the look . . . like . . . she
want[ed] it,” so defendant figured he would “take it, you know whatever.” The victim did not say anything to defendant;
the communication was all done via eyes and “[b]ody language.” Jackie shut the bedroom door when defendant
told her he was “talking” to the victim.


Defendant
and the victim laid on the bed together, kissing. The victim told defendant, “[Y]ou can[’]t get
me pregnant . . . my dad would be so mad.”
Defendant also said the victim told him that if he impregnated her then
the victim’s dad would give defendant “all this money” and “pay for the house,
apartment . . . and stuff like that.”
The victim told defendant, “[I]’ll suck your dick . . . swallow the
cum.” When defendant was “pushing on”
the victim, she said she did not want him to “take her virginity.” Defendant told Guzman, “you know when girls
say no, but they don’t, you know?” The
victim “said no” to defendant two or three times, so defendant relented, but
then “coaxed [his] way back over and then that’s when [the victim] let [him],
she was like okay, okay, you know . . . .”

Defendant
rubbed his penis on the victim’s mouth.
The victim bit defendant’s penis.
Defendant orally copulated the victim.
The victim vomited on the floor.
Defendant placed a towel over the vomit and then returned to the
victim. Eventually, the victim “did
scream, she, before she did scream, she told [defendant] oh I’ll do whatever,
I’ll do whatever you want to make, to make you think that people will think
that we had sex. I just, you know,
[don’t] want penetration. She’s all I’ll
suck your dick, I’ll swallow the cum, I’ll, I’ll do whatever you want, just
don’t take my virginity. That [is] what
[the victim] kept saying to [defendant].”


Defendant
pulled up the victim’s shirt, took off her bra, and removed her pants. Defendant explained, “[W]e were gonna start
but she was like no, no, this and that you know? I’ll, you know I’ll suck your dick blah,
blah, blah and so we, I don’t know, I can’t really remember how we made it by
the door but that’s when the, it actually happened was by the door.” Defendant said he had sex with the victim on
the floor by the door, not on the bed.
The victim asked defendant approximately 10 times not to take her
virginity.

Defendant
engaged in sexual intercourse with the victim while victim lay on her side and
on her back. The victim did not talk
during the sexual intercourse, but she was moaning. Defendant asked the victim, “[A]re you
okay?” The victim did not respond so
defendant “kept going.” The victim
occasionally tried to push defendant off of her, but defendant believed she was
just being playful. The victim vomited a
second time while defendant was “pushing on her.” Defendant ejaculated in the victim’s
mouth.

The
victim fell asleep on the floor.
Defendant explained, “So you know she was drunk so she just fell right
to sleep . . . .” Defendant said the
victim was “very” coherent and “knew what she was doing.” The following morning, the victim was smiling
and talking to defendant, so he did not believe there were any problems. Defendant gave the victim a hug and said,
“[A]lright, I’ll see ya next time.”

Defendant
explained to Guzman that he knew the victim was under 18 years old, which is
why he was focused on an older woman at the party. However, things did not work out with the
older woman. Defendant explained
engaging in intercourse with the victim, despite her being under 18 years old,
as follows: “She just happened to be in
my bed and I didn’t get what I wanted so you know I took an opportunity.” Defendant believed the victim wanted to have
sex with him because she did not cry or leave the room. Defendant explained to Guzman, “[Y]ou know
man to man, . . . women say no when they mean yes.”

The
defense presented Jackie’s testimony.
Jackie gave the following version of the incident on January 15,
2010: The victim drank shots of alcohol
at the party. The victim felt dizzy so
they went outside. When Jackie and the
victim returned to the apartment, the victim consumed more alcohol. The victim and defendant were talking to each
other throughout the night. The victim wanted
to talk to Jackie, so they went into the bedroom together. Jackie and the victim sat on defendant’s
bed. After a few minutes, Jackie left to
use the restroom.

When
Jackie returned to the bedroom, she saw the victim talking to defendant. The victim told Jackie she wanted to talk to
defendant privately, so Jackie left and the victim closed the door. The victim was visibly intoxicated, but it
appeared “she knew what she was doing.”
Approximately 30 minutes later, Jackie returned to the bedroom and saw
defendant and the victim engaging in sexual intercourse. Jackie left the bedroom. Jackie never heard the victim yell “stop” or
yell for help.

The
following morning Jackie talked to the victim.
The victim told Jackie that “she thought she was pregnant.” The victim told Jackie “[t]hat if she [were]
pregnant, [then] she would tell her parents that she got raped by a black
guy.”

>DISCUSSION

A. SUBSTANTIAL EVIDENCE

Defendant
contends the evidence supporting his conviction for forcible rape (§ 261,
subd. (a)(2)), does not meet the substantial
evidence
standard. We disagree.

“A
substantial evidence inquiry examines the record in the light most favorable to
the judgment and upholds it if the record contains reasonable, credible
evidence of solid value upon which a reasonable trier of fact could have relied
in reaching the conclusion in question.
Once such evidence is found, the substantial evidence test is satisfied. [Citation.]
Even when there is a significant amount of countervailing evidence, the
testimony of a single witness that satisfies the standard is sufficient to
uphold the finding.” (>People v. Barnwell (2007) 41 Cal.4th
1038, 1052.)

“Rape
is an act of sexual intercourse accomplished with a person not the spouse of
the perpetrator . . . [¶] . . . [¶] [w]here it is accomplished against a
person’s will by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the person or another.” (§ 261, subd. (a)(2).) “‘[I]n order to establish force within the
meaning of section 261[,] the prosecution need only show the defendant used
physical force of a degree sufficient to support a finding that the act of
sexual intercourse was against the will of the [victim].’ [Citation.]”
(People v. Griffin (2004) 33
Cal.4th 1015, 1023-1024.)

The
victim testified that when she regained consciousness a third time, she was
lying on her back with her legs spread open.
The victim’s pants were off.
Defendant was naked. Defendant
was on top of the victim, holding the victim’s arms so she could not move
them. Defendant’s erect penis was in the
victim’s vagina, and he was moving his penis back and forth. The victim testified that when she regained
consciousness the second time, she had used her hands to try pushing defendant
off of her. Defendant also said the
victim tried to push him off of her, she screamed, and she asked defendant
approximately 10 times to not take her virginity.

Defendant
told Detective Guzman that he wrestled in high school. Defendant explained that he never forgot his
wrestling moves and that a lot of wrestling was about “wrist control” and
“leverage.” Defendant described a time
when another wrestler “incapacitated” defendant by holding defendant’s wrists.

Given
that the victim had been trying to push defendant off of her using her hands, a
reasonable trier of fact could conclude that defendant’s act of holding the
victim’s arms down so that she could not move them while engaging in sexual
intercourse with the victim, constituted the use of force during rape. It would appear from this evidence that
defendant was attempting to stop the victim from pushing him off her, and
therefore force was used during the rape.
Accordingly, we conclude substantial evidence supports the finding that
defendant used force during the rape.

Defendant
asserts substantial evidence does not support the rape finding because alcohol
was used to sedate the victim—“not any physical force”; defendant asserts he is
guilty only of rape by intoxication, not rape by force. Defendant’s argument is not persuasive
because, as set forth ante, the
evidence reflects he held the victim’s arms down while engaging in sexual
intercourse with her, after she had tried using her hands to push defendant off
of her body. Thus, the record supports a
finding that defendant used physical force to accomplish the rape.

Next,
defendant asserts the jury did not convict defendant based upon the “force”
aspect of the statute, and instead convicted defendant based upon the “duress”
and “menace” portions of the rape statute.
Defendant bases this conclusion on the jury asking the trial court for
the legal definitions of duress and menace.
Defendant reasons that the jury would not have asked for these definitions
if the jurors were basing their verdict on the “force” portion of the
statute.

We
cannot infer from the jury’s question which theory of guilt was adopted by the
jury. Defendant’s argument is asking
this court to speculate about the jury’s actions based on a question that could
reflect the jurors’ mere curiosity.
Speculation will not support reversal of a judgment. (People
v. Gray
(2005) 37 Cal.4th 168, 230.)
Thus, we do not discuss this issue further, especially in light of the
substantial evidence supporting the “force” aspect of the conviction. (See People
v. Senior
(1992) 3 Cal.App.4th 765, 769-770, fn. 3 [the multiple methods in
which the crime can be committed are alternatives].)

B. UPPER TERM

1. PROCEDURAL
HISTORY


At
defendant’s sentencing hearing, defendant’s trial counsel asked the court to
impose the low prison term. Trial
counsel argued the low term was sufficient because (1) “it’s not the worst case
that we’ve ever seen,” (2) defendant’s only prior involved possession of
marijuana, and (3) defendant suffered from “mental issues.” Defendant spoke at the hearing. Defendant told the trial court, “[C]ontrary
of what the jury thinks . . . I’m an innocent man. One thing that wasn’t said that I think is
important is that people get drunk and do things they don’t remember all the
time. So who’s to say that she didn’t do
just that?”

The
prosecutor argued (1) defendant was fired from a job for sexually harassing a
female coworker; (2) defendant denied responsibility for his crime and blamed
the victim when speaking to a probation officer, and (3) defendant, at the
sentencing hearing, again denied his guilt.
The prosecutor asserted defendant is “an example of someone who will
continue to be a threat to the public in the future.” The prosecutor argued defendant should be
sentenced to the upper prison term, as suggested by the probation officer.

The
trial court deemed the prison term for the forcible rape (§ 261, subd. (a)(2))
to be the principal term. The trial
court imposed the upper prison term of eight years for the conviction. The trial court explained that the upper term
was necessary because (1) “defendant literally forced a child to have sex,
and that child was so drunk as to be rendered helpless”; (2) defendant raped
the victim “throughout the night, all the while the helpless child was coming
in and out of consciousness”; (3) the victim knew defendant, was comfortable
around him, and was in his home, which placed defendant in a position of trust
that he then violated; and (4) “defendant actually sees himself as the victim,”
which indicated to the trial court, “defendant does represent a real danger to
the public, because he does not see how his actions destroyed this child’s
life.”

2. ANALYSIS

Defendant
contends the trial court erred by imposing the upper prison term for the
forcible rape conviction because (1) the victim was not a child, and (2)
defendant did not hold a position of trust.href="#_ftn2" name="_ftnref2" title="">[2] We disagree.

“‘California
courts have long held that a single factor in aggravation is sufficient to
justify a sentencing choice, including the selection of an upper term[.]’ [Citation.]”
(People v. Quintanilla (2009)
170 Cal.App.4th 406, 413.) Some of the
enumerated factors in aggravation include:
(1) the crimes involves acts disclosing a high degree of cruelty,
viciousness, or callousness; (2) the victim was particularly vulnerable; (3)
“[t]he defendant took advantage of a position of trust or confidence to commit
the offense”; and (4) the defendant engaged in violent conduct that indicates a
serious danger to society. (Cal. Rules
of Court, rule 4.421.) We review the
trial court’s imposition of the upper prison term for an abuse of discretion. (People
v. Sandoval
(2007) 41 Cal.4th 825, 847-848; People v. Jordan (2006) 141 Cal.App.4th 309, 324.)

We
address the vulnerability factor first.
“‘[A] “particularly vulnerable” victim is one who is vulnerable “in a
special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded,
unprotected, accessible, assailable, one who is susceptible to the defendant’s
criminal act[.]” [Citation.]’ [Citation.]”
(People v. Esquibel (2008) 166
Cal.App.4th 539, 558.) The victim turned
17 years old in the month prior to the rape.
Thus, the victim was a minor at the time the rape took place. (People
v. Yuksel
(2012) 207 Cal.App.4th 850, 853.)
The victim was sick from drinking alcohol at the time the rape occurred,
as evinced by her vomiting multiple times throughout the incident. The victim also passed in and out of
consciousness during the attack.

Given
that defendant raped a minor, who was ill, and who was unconscious for portions
of the attack, the trial court could reasonably conclude that the “particularly
vulnerable” aggravating factor applied in this case because the victim was
defenseless and susceptible to the attack, even if the victim does not meet the
classic definition of a child. (See >People v. Yuksel, supra, 207 Cal.App.4th at pp. 853-854 [distinguishing “minor” from
“child” and noting that a 17 year old is not a “child”].) Since the trial court’s application of the
“particularly vulnerable” factor was within reason based upon the victim’s
status as a minor, the victim’s illness, and the victim’s lack of
consciousness, we conclude the trial court did not err. (People
v. Hernandez
(2009) 180 Cal.App.4th 337, 348 [we review a court’s decision,
not its reasoning].)

We
do not address defendant’s contention concerning the “position of trust”
aggravating factor because the issue is moot, in light of (1) the trial court
properly applying the “particularly vulnerable” aggravating factor; and (2)
defendant not taking issue with the application of the (a) “callousness”
aggravating factor, or (b) “danger to society” aggravating factor. In other words, if we were to address the
“position of trust” issue, we could not grant defendant any relief (assuming
his arguments are correct) because only one factor is needed to impose an upper
term, and in this case we have concluded one factor was properly imposed, and
defendant does not question the application of two other factors. (People
v. Quintanilla
, supra, 170
Cal.App.4th at p. 413 [single factor in aggravation sufficient to justify
imposition of upper term]; In re Albert
G.
(2003) 113 Cal.App.4th 132, 134 [issue is moot when no relief can be
granted].)

>DISPOSITION

The
judgment is affirmed.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS



MILLER

J.





We concur:





RICHLI

Acting P. J.





KING

J.







id=ftn1>

href="#_ftnref1" name="_ftn1" title="">[1] All
further statutory references will be to the Penal Code, unless otherwise
indicated.

id=ftn2>

href="#_ftnref2" name="_ftn2" title="">[2] The
People assert defendant forfeited these arguments by not raising these specific
issues in the trial court. Since
defendant argued for the imposition of the low term at the trial court, we will
address the merits of his contention.








Description A jury found defendant and appellant Jacques Aultman, Jr., guilty of (1) rape accomplished by means of force, violence, duress, menace, or fear (Pen. Code, § 261, subd. (a)(2));[1] (2) rape where the victim is prevented from resisting due to an intoxicating substance (§ 261, subd. (a)(3)); (3) oral copulation with a person under the age of 18 years old (§ 288a, subd. (b)(1)); (4) oral copulation where the victim is prevented from resisting due to an intoxicating substance (§ 288a, subd. (i)); and (5) sexual intercourse with a minor “who is not more than three years older or three years younger” than defendant (§ 261.5, subd. (b)). The trial court sentenced defendant to prison for a term of 10 years.
Defendant raises two issues on appeal. First, defendant contends substantial evidence does not support the conviction for forcible rape. Second, defendant asserts the trial court abused its discretion when imposing the upper prison term for the forcible rape conviction. We affirm the judgment.
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