P. v. White
Filed 4/10/13 P. v. White CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BILLY CHARLES WHITE,
Defendant and Appellant.
D060969
(Super. Ct.
No. SCD228290)
APPEAL from
a judgment of the Superior Court
of
County, Frank A. Brown, Judge.
Affirmed as modified.
A jury
found Billy Charles White guilty of rape
of an intoxicated person (Pen. Code,
261, subd. (a)(3); count 1) and of rape
of an unconscious person (id.,
subd. (a)(4)(A); count 2). The trial
court sentenced White to three years in state prison and ordered him to
register as a sex offender.
White
contends the evidence is insufficient to prove under section 261 that when he
engaged in sexual intercourse with the victim, he knew the victim was unable to
resist because of intoxication (count 1) or because the victim was unconscious
of the nature of the act of intercourse (count 2). White also contends the trial court
prejudicially erred by refusing both to instruct the jury on mistake of fact
and to grant his new trial motion based on juror misconduct. Finally, White contends the trial court
abused its discretion when it denied him probation.
In addition to these contentions,
on our own motion we requested supplemental briefing from the parties whether
White's convictions on counts 1 and 2 should be consolidated under
conviction given there was a single act of sexual intercourse.
As we explain, we reject White's
contentions on appeal. After considering
the supplemental briefing of the parties, we conclude that White was not
properly convicted both on counts 1 and 2 and further, that the judgment must
be modified to reflect only one conviction for violation of section 261.
FACTUAL
AND PROCEDURAL BACKGROUND
On February 14, 2010, White asked the
victim to go out for Valentine's Day.
White knew the victim from a local bar White frequented, where the
victim worked as a bartender. White and
the victim in the past had participated in some group activities, including
taking a trip to Las Vegas with other employees and patrons of the bar. Although the victim refused to go out alone
with White on Valentine's Day, she agreed to go out in a group that included
White.
That night, the victim met White at
the local bar where the victim worked.
Before she met up with White, the victim had dinner with a friend. During dinner the victim consumed one
beer.
At about 9:00 p.m., the victim
drove to downtown San Diego with White and John Jacoby (John), another regular
from the bar where victim worked. The
victim dropped off White at a hotel where White planned to stay. However, the victim had not intended to stay
the night at the hotel. After the victim
parked her car in the hotel parking lot, they headed downtown to some clubs but
found the lines to enter too long and the cover charge for admission too
expensive. The victim next contacted a
friend who worked at a "gentlemen's club" (club).
The three of them went to the club
at about 10:30 p.m., sat in the "V.I.P." section and purchased a
bottle of vodka to share. While at the
club, the group was joined by John's brother, Joey Jacoby (Joey), Joey's
girlfriend, Jamey Booth (Jamey), and victim's former boyfriend. White and John each received a private or
"lap" dance at the club.
With the exception of the victim's
former boyfriend, the group stayed at the club until it closed at about 2:00
a.m. The victim testified she consumed
at least four vodka drinks while at the club.
The victim also testified she did not remember leaving the club;
instead, her last memory that night was being told by club employees that the
club was closing. Her next memory was
waking up at 5:30 a.m. in the hotel room after "somebody roll[ed] off of
[her]."
The victim testified that on the
night of the attack, she dreamt she was being touched and kissed. The victim also testified that when she
awakened she looked at the clock and realized then she was in a hotel room and
that somebody actually had been touching her, including her vagina and
breasts. At that moment, the victim knew
somebody had intercourse with her while she had been in a "dream
state." The victim testified she
remember saying "no" to intercourse, but could not remember whether
she was actually saying "no" out loud to her attacker or was saying
it "inside [her] head."
The victim testified she saw John
sleeping on a bed to her left. The
victim still had on her dress and sweater but her dress was "scrunched
up" like a shirt, her underwear was missing and her bottom half was
exposed. The victim saw White in bed
next to her, wearing an undershirt with his pants down. White appeared to be sleeping.
The victim got up from the bed,
found her underwear and frantically went over to John. The victim shook John to wake him. The victim next grabbed a few of her
belongings and ran out of the room into the hallway, where she sat crying.
John came to the victim's assistance. The victim told John she had been raped. Because of the noise, hotel security
approached the victim and John in the hallway and told them either to leave the
hotel or go back inside their room. The
victim did not tell security she had been raped because she was
embarrassed. John drove the victim
home.
The victim testified that once home
she felt "completely lost" emotionally. She could not remember going to the hotel the
night before or how she ended up sleeping in the hotel room. The day after the attack, the victim told her
roommate what had happened, who called police.
The victim was taken to a clinic for an evidentiary examination.
The examination revealed abrasions
on the peri-hymenal area of the victim, both left and right, and lacerations on
the victim's posterior fourchette and the fossa navcularis. The findings were consistent with the victim
being asleep or unconscious and not physically aroused at the time of sexual
penetration.
The victim's roommate testified she
could hear the victim crying inside her room most of the day following the
attack, and the victim appeared scared and shaken up. The victim's roommate also testified that
more than a day after the attack, the victim was still crying and was wearing
the same clothes she had worn on the night of the assault.
Jamey testified on the night of the
attack the victim appeared intoxicated as she was having trouble walking. The victim's former boyfriend testified
before he left the club that night he offered to take the victim home because
in his opinion she was "totally wasted."
As the club closed, White and the
victim left in a cab and returned to the hotel.
Joey and Jamey were outside the club talking when they saw White and the
victim leave. Joey and Jamey were surprised
the victim and White left in a cab because they believed Jamey was going to
drive them all back to the hotel. Joey
and Jamey waited outside the club for John and they too went back to the hotel.
Security camera footage from the
hotel showed White helping the victim out of the cab and holding her up as they
walked in and around the hotel after returning from the club. In addition, the footage shows the victim at
one point veering off and stumbling away from White after she dropped her purse
on the floor.
Once at the hotel, Joey, John and
Jamey by happenstance met up with White and the victim. Joey observed the victim "stumbling
around" and saw her walk into the men's restroom. John similarly testified the victim needed
assistance walking. John had been with
the victim in the past when they had drunk alcohol and he testified he had
never seen her as intoxicated as she was that night.
The entire group next went to
White's hotel room. Jamey helped the
victim into the room and put the victim on one of the two beds. White and John left to find more alcoholic
beverages. Joey, Jamey and the victim
remained in the room. Joey testified
that one minute the victim appeared "kind of fine" and the next
minute she was "kind of like passing out." As they talked, Joey saw the victim laying on
the floor of the hotel room, in between the two beds, "kind of out of
it." Joey and Jamey helped the
victim back on the bed, and although the victim tried to sleep, Joey testified
the victim kept using the bathroom ostensibly to vomit.
At about that time, John and White
returned without any alcohol. They then
decided to get something to eat. Because
the victim was intoxicated, the group decided she should stay behind and
"sleep it off." Joey then
drove to a restaurant where he and Jamey dropped off John and White. Joey and Jamey then drove home to Joey's
house.
John testified that he and White
went back to the club after they finished eating in an attempt to retrieve
White's cell phone, which White had left at the club. John and White returned to the hotel at about
3:40 a.m. The victim was sleeping on one
of the two beds. While John was using
the bathroom, White climbed on the bed where the victim was sleeping. John turned out the light and went to sleep in
the other bed.
John testified he was awakened by
the victim. She appeared "very
scared" and was crying. Outside the
room in the hallway, the victim told John that White had sexually assaulted
her. John went back in the room to
obtain the victim's purse and her other belongings. John saw White under the covers in the bed
where the victim had been sleeping. John
told White that the victim said White had sexually assaulted her. In response, White told John that the victim
"had been begging [White] for it."
Photos from the hotel security
camera showed the victim and John leaving the hotel. John testified that at times he had to carry
the victim as they walked to her car because she was distraught.
DISCUSSION
Sufficiency of the Evidence in Counts 1 and 2
White does not contest that he
engaged in sexual intercourse with the victim.
He also does not contest the victim had been "partying and
drinking" on the night of the alleged assault and was "drunk"
when the group reached the hotel at about 2:30 a.m.
However, White contends there is
insufficient evidence he knew or should have known that the victim was
prevented from or unable to resist the act of intercourse due to either
intoxicating substances (§ 261, subd. (a)(3)) or unconsciousness (
allegedly is no evidence of the victim's condition at about 5:30 a.m. that
morning when sexual intercourse occurred, including evidence of whether she was
awake or sufficiently conscious at the time such that White would know or
reasonably know she was unable to resist.
1. Applicable Law
"In assessing the sufficiency
of the evidence, we review the entire record in the light most favorable to the
judgment to determine whether it discloses evidence that is reasonable, credible,
and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th
297, 331.) We resolve all
in the evidence and questions of credibility in favor of the verdict, and
indulge every reasonable inference the jury could draw
from the evidence.
(People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless
" 'upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].'
" (Bolin, supra, at p. 331;
see also People v. Mendez (2010) 188 Cal.App.4th 47, 56.) This standard of
review is the same in cases involving circumstantial
evidence. (People v. Stanley (1995)
10 Cal.4th 764, 792.)
The jury here was properly
instructed regarding the knowledge element to support a conviction under counts
1 and 2. Specifically, with regard to
count 1, rape of an intoxicated person, the People were required to prove that,
among other elements, the defendant "knew or reasonably should have known
that the effect of an intoxicating substance prevented the woman from
resisting." (CALCRIM No. 1002, as
modified.) The jury was also instructed
that a "person is prevented from resisting if he or she is so
incapacitated that he or she cannot give legal consent. In order to give legal consent, a person must
be able to exercise reasonable judgment.
In other words, the person must be able to understand and weigh the
physical nature of the act, its moral character and probable consequences. Legal consent is consent that's given freely
and voluntarily by someone who knows the nature of the act involved." (CALCRIM 1002.)
Finally, the jury was instructed
regarding a defendant's actual and reasonable belief that a woman was capable
of consenting to sexual intercourse, as a defense to the crime of rape: "The defendant is not guilty of this
crime if he actually and reasonably believed that the woman was capable of
consenting to sexual intercourse, even if that belief was wrong. The People have the burden of proving beyond
a reasonable doubt that the defendant did not actually and reasonably believe
that the woman was capable of consenting.
If the People have not met this burden, then you must find the defendant
not guilty." (CALCRIM 1002.)
2. Analysis
Substantial evidence in the record
supports the jury's finding that White knew or reasonably should have known
that the victim was incapable of resisting due to intoxication. Indeed, the record shows that the victim
consumed at least four alcoholic beverages between 10:30 p.m. and 2:00 a.m.;
that the victim's last memory on the night of the attack was club employees
telling her it was time to leave; that multiple witnesses testified the victim
was having trouble walking on her own; that the victim's former boyfriend
testified the victim was "totally wasted" at the club; that security
camera footage from the hotel confirmed the victim was having trouble walking
and was walking with the assistance of White; that the victim inexplicably
dropped her purse while stumbling around inside the hotel; that once inside the
hotel room, the victim "pass[ed] out"; that at some later point
inside the hotel room, the victim fell off the bed and slept on the floor
between the two beds; that the victim needed assistance getting back onto one
of the beds; that the group, including White, agreed the victim should stay in
the hotel room to "sleep it off" while the rest of the group left for
the restaurant; that the victim did not awaken until about 5:30 a.m.; that when
the victim awakened, she did not recall how she got to the hotel or to the
room; and that the victim then
realized that she was not wearing any underwear, although she still had her
dress on, that somebody had been touching and kissing her while she was in a
"dream state" and that somebody had penetrated her vagina.
We conclude this evidence -- and
the inferences that can be drawn from it (see People v. Wader (1993) 5
Cal.4th 610, 640) -- amply supports the finding of the jury that White knew or
should have known the victim was incapable of resisting intercourse due to
alcohol intoxication. But there is
more.
The record also shows that when the
victim awakened at about 5:30 a.m., White pretended
to be asleep as he lay next to the victim with his pants down. This evidence, along with the evidence from
the clinical examination that showed abrasions on the victim's peri-hymenal
area and lacerations on her posterior fourchette and fossa navcularis that were
consistent with penetration without sexual arousal, further supports the jury's
finding that the victim did not consent to, and was incapable of resisting,
sexual intercourse with White.
That much of this same evidence
could also support one or more different findings, including that the victim
allegedly consented to sexual intercourse with White while she was in a
"dream state," as White contended, does not as a matter of law change
our conclusion in this case. White made
this contention, and aggressively argued it, at trial. As
the fact finder, the
however by the same logic, the jury also was entitled to
reject it, as clearly turned out to be the case
here. (See People v. Smith (2005)
37 Cal.4th 733, 739 [a court of review is bound to accept the factual and
credibility determinations of the trier of fact]; see also People v. Ochoa
(1993) 6 Cal.4th 1199, 1206 [" 'Although we must ensure the evidence is
reasonable, credible, and of solid value, nonetheless it is the exclusive
province of the . . . jury to determine the credibility of a
witness and the truth or falsity of the facts on which that determination
depends.' "].)
As a court of review, we are not at
liberty to make findings different from those made by the jury if, as in the
instant case, those findings are supported by substantial evidence. (See People
v. Ochoa, supra, 6 Cal.4th at p.
1206 [if the verdict or a finding is
supported by substantial evidence, we must accord due deference to the trier of
fact].) Moreover, White does not contend
any of the witnesses' testimony was physically impossible or inherently
improbable. (See People v. Ennis
(2010) 190 Cal.App.4th 721, 725 [a
court of review must accept the testimony believed by the
jury unless it was physically impossible or inherently
improbable, meaning "that the challenged evidence is 'unbelievable per se'
. . . . [Citation.]"].)
For similar reasons, we also reject
White's contention that there is a lack of evidence to support the finding that
White knew or should have known that the victim was unable to resist sexual
intercourse with him because she was unconscious. We conclude there is substantial evidence in
the record, as summarized ante, also
supporting this finding.
Consolidation of Convictions Counts 1 and 2
As
noted ante, White was convicted in
count 1 of rape of an intoxicated person (§ 261, subd. (a)(3)) and in
count 2 of rape of an unconscious person (id.,
subd. (a)(4)(A)). There
is no dispute that both convictions under section 261 are based on a single act
of intercourse.
On our own motion, we sought and received supplemental
briefing from the parties whether this court should consolidate White's two
convictions under section 261 into a single conviction under the authority and
reasoning of Craig, supra, 17
Cal.2d 453, and its progeny.
In
Craig, supra, 17 Cal.2d at page 455, the defendant was convicted of both
rape by force and violence and statutory rape, and was sentenced to concurrent
terms on both convictions. The issue
before our high court was "the propriety of entering separate judgments
and sentences for both forcible and statutory rape, charged under separate
counts, when but a single act of sexual intercourse has been
committed." (Ibid.) The court in Craig observed: "There has been a violation of but one
statute -- section 261 of the Penal Code.
And, while the proof necessarily varies with respect to the several
subdivisions of that section under which the charge may be brought, the sole punishable
offense under any and all of them is the unlawful intercourse with the
victim." (Id. at
p. 458.)
On
this basis, the court in Craig concluded,
"[O]nly one punishable offense of rape results from a single act of
intercourse, though it may be chargeable in separate counts when accomplished
under the varying circumstances specified in the subdivisions of section 261 of
the Penal Code." (Craig, supra,
17 Cal.2d at p. 458.) The court modified the judgment to state that
the defendant had been "found guilty of the crime of Rape, a felony, as
defined and proscribed in subdivisions 1 and 3 of section 261 of the Penal
Code, and as charged in counts 1 and 2 of the amended information, being
separate statements of the same offense . . . ." (Craig,
supra, at p. 459.)
before it as one involving included offenses, as noted by the following
language: "The authorities have set
down certain rules or tests whereby it may generally be determined whether one
or more offenses result from a single act or transaction. Frequently, the test is stated to be 'the identity
of the offenses as distinguished from the identity of the transactions from
which they arise. A defendant may be
convicted of two separate offenses arising out of the same transaction when
each offense is stated in a separate count and when the two offenses differ in
their necessary elements and one is not included within the other.' " (Craig, supra, 17 Cal.2d at p. 457.)
The
rule permitting multiple convictions for a single act is based on section 954,
which states that " '[a]n accusatory pleading may charge . . .
different statements of the same offense' " and " 'the
defendant may be convicted of any number of the offenses
charged.' " (See People v.
Ortega (1998) 19 Cal.4th
686, 692.) The rule has been applied
repeatedly by our Supreme Court in a variety of contexts in which defendants
have asserted that their convictions fall within the exception for lesser
included offenses. (See e.g.
possessing firearm supports multiple firearm convictions]; Ortega, supra,
at p. 693 [single act supports grand theft and carjacking convictions]; People
v. Pearson (1986) 42 Cal.3d
351, 354-355 [single act supports rape and lewd conduct convictions].) In those cases the court upheld multiple
convictions because each crime had a distinct element not required of the other
and neither crime was the lesser included offense of the other.
Recently,
a court applied Craig, supra, 17
Cal.2d 453, in a situation identical to the case at bar. In People v. Smith (2010) 191
Cal.App.4th 199, the defendant was convicted of two counts of rape -- rape of
an intoxicated woman, and rape of an unconscious woman. The evidence demonstrated only one act of
sexual intercourse. (Id. at p.
205.) Following Craig, the court in
Smith concluded that the defendant
could stand convicted of only a single count of rape based on the single act of
intercourse. (Smith, supra, at p.
205.)
The
respondent contends section 954 authorizes multiple convictions, subject to
section 654's limitations on multiple punishment. We reject that argument.
As we have
noted, section 954 allows pleading of multiple offenses, including separate statements
of the same offense. We think the
respondent's analysis is flawed at its starting point. The respondent approaches this issue from the
premise that section 261, subdivisions (a)(3) and (4) are separate
offenses. That major premise in wrong.
As the court
noted in Craig, supra, 17
Cal.2d 453, section 261
creates a single crime of rape. Although
the section has been amended a number of times since Craig, the statute still defines a single crime. The section begins: "(a) Rape is an act of sexual intercourse
accomplished with a person not the spouse of the perpetrator, under any of the
following circumstances: . . . "
Section
261, subdivision (a)(3) involving an intoxicated victim and subdivision (a)(4)
involving an unconscious victim are simply separate ways in which the crime of
rape can be committed under section 261.
Section 261, subdivisions (a)(3) and (4) do not define separate crimes
and do not contain separate punishments.
Rather, section 264 provides the punishment for rape under section 261,
without reference to the various subdivisions, which establish the
circumstances in which sexual intercourse can be proved to be rape.
Respondent's
reliance on case law that allows conviction of multiple offenses from a single
act, subject to section 654 limitations is misplaced. Those cases address different offenses, with
different elements. The analysis of
multiple offenses arising from the same act is not relevant to a case such as
this where the statute at issue only defines one crime, regardless of the
manner of its commission. In the case of
truly separate offenses arising from a single act, multiple convictions are
permitted, even if multiple punishments are not.
In the
present case, as we have discussed, only one crime exists, based upon a single
act, and that is rape as defined in section 261. The prosecution properly pled two counts of
rape as separate statements of the same
offense, but because the counts are in fact separate statements of only one
offense, Craig, supra, 17
Cal.2d 453 holds there may
only be one conviction for the single act.
(Smith, supra, 191 Cal.App.4th
at p. 205.)
title="">[3]
In sum,
this case is controlled by Craig, supra, 17
Cal.2d 453, which requires that we vacate one of the rape counts,
leaving a single conviction for the single act.
We are aware the Supreme Court has granted review in
Cal.App.4th 405, review granted February 27, 2013, S207830, to address the
issue presented in this discussion.
Pending further direction from the Court we will continue to follow the
direction of Craig and order the two
rape convictions be consolidated.
Mistake
of Fact
White next contends the trial court prejudicially erred when
it refused to instruct the jury on mistake of fact, CALCRIM No. 3406, in
connection with count 2 for rape of an unconscious person.
issue in this case was his mistaken belief regarding whether the victim
consented to sexual intercourse, the trial court erred when it refused to give
CALCRIM No. 3406. We reject this
contention for two reasons.
First, the trial court had no duty to instruct on mistake of
fact because that defense is not available to a charge of rape of an
unconscious person. (See
21, 34-35 [§ 261, subd. (a) "describing rape of an unconscious person
does not contain a lack of consent element," and thus "in the
subdivision setting forth the elements of rape of an unconscious person, the
Legislature obviously made an explicit choice not to require proof of lack of
consent where the victim was unconscious at the time of the act of sexual
intercourse."].)
Second, we note the jury found against White on the issue of
whether he knew or reasonably should have known the victim was unable to resist
sexual intercourse because the victim was unconscious. This finding also went to the issue of
consent: if the jury believed that White
did not actually know, or that a reasonable person would not have known, the
victim was unable to resist the act of sexual intercourse because, for example,
the victim consented to sex, as White aggressively argued at trial, then it
would have acquitted him of rape. Thus,
the issue of White's intent and the victim's consent was already before the
jury and therefore, we conclude under any standard of review that any potential
error in failing to instruct the jury with CALCRIM No. 3406 was harmless. (See People v.
Watson (1956) 46 Cal.2d 818, 836; Chapman v.
California (1967) 386 U.S. 18, 24.)
Juror
Misconduct
White next contends the trial court erred when it denied his
new trial motion based on juror misconduct.
1. Brief Additional Background
After the prosecution's case-in-chief, but before the
defense put on its case, Juror No. 12 wrote the following note to the court:
"[The victim], perhaps the most experienced drinker in
the group, yet she's incapacitated at hotel and the next day. [¶]
Defendant went in cab with only [the victim], without cell phone,
essentially ditched the group, and could have been alone with [the victim] in
hotel room except for accidental meeting [with the rest of the group]. [¶]
What's the clearance time of a date rape drug from the system? Was the drug test in April [on the victim] to
pick up the presence of drug in urine sample?"
After advising counsel, the prosecutor suggested the court
reread the stipulation of the parties regarding the victim's negative drug test
and re-admonish the jury that it should only consider the evidence
presented.
court admonish the jury that it was merely at the listening stage of the trial.
When the trial resumed, the court reread the stipulation
about the negative drug test and both counsel reiterated their agreement to that
stipulation. The court then advised the
jury as follows: "The other issues
that were of concern in the juror note to me, which is court exhibit number 5,
those are matters to be addressed in deliberations, those concerns."
After the verdict, the defense moved for a new trial based
on the alleged misconduct of Juror No. 10.
Specifically, after the verdict Juror No. 5 notified the court and
ultimately testified that Juror No. 10, following
the verdicts but before oral pronouncement of the verdict, admitted to
conducting research on the bar where the victim worked and reading a flattering
comment potentially involving the victim.
The court in response questioned Juror No. 5 outside the
presence of the remaining jurors. Juror
No. 5 noted that Juror No. 10 did not indicate one way or the other whether
that research affected Juror No. 10's judgment regarding the case, nor could
Juror No. 5 recall Juror No. 10 referencing that research during jury
deliberations.
The court next questioned Juror No. 10. Juror No. 10 admitted to sharing the research
with the jury after the jury had
reached a verdict, while waiting to deliver it, but told the court that
research "had nothing to do with the deliberations at all. Nothing." Juror No. 10 explained, "There wasn't
any reason for it. I just kind of looked
up . . . the bar, and then was reading the reviews." Juror No. 10 admitted that during trial she
spent a few minutes looking up the bar where the victim worked, but said
"that was it." Consistent with
what Juror No. 5 had told the court and counsel, Juror No. 10 told the court
she read a review about a "very good looking brunette bartender" who
worked at the bar, but the review did not mention the bartender by name. In response to the court's question whether the
research affected her deliberations, Juror No. 10 answered, "Absolutely
not."
Juror No. 10 further explained that when she learns of a new
restaurant she looks them up "online," that her doing so was not
unique to this case and after she apologized to the court and counsel, that her
doing so in this case "[h]onestly . . . was the most innocent thing."
The defense subsequently filed a motion for new trial based
on Juror No. 10's alleged misconduct.
the bar where the victim worked, including one that referenced the victim as
being a good bartender who knew her customers' names. The defense argued Juror No. 10 was not
credible concerning her motivations for looking up online the bar where the
victim worked and that the compliment of the victim was inherently
prejudicial.
In opposing the new trial motion, the prosecution noted the
research done by Juror No. 10 was not disclosed to other jurors and was, in any
event, irrelevant to the issue of guilt or innocence, particularly because
there was evidence that another person with the same first name as the victim
also worked at the bar. The prosecutor
also noted the alleged misconduct did not compare to a juror viewing a crime
scene. The trial court agreed with the
prosecution and thus denied the defense's new trial motion.
2. Governing Law and Analysis
Section 1181, subdivision 3, provides that the trial court
may grant a new trial when "the jury has . . . 'been guilty of any
has been prevented [citation].' [¶] We first determine whether there was any
do we consider whether the misconduct was prejudicial." (People v. Collins (2010) 49 Cal.4th
175, 242.)
Juror misconduct raises a presumption of prejudice. (People v. Page (2008) 44 Cal.4th 1,
59.) Unless the presumption is rebutted
by the prosecution, a new trial should be granted. (Ibid.) As noted by one court, " '[t]his does
not mean that every insignificant infraction of the rules by a juror calls for
a new trial. Where the misconduct is of
such trifling nature that it could not in the nature of things have prevented
either party from having a fair trial, the verdict should not be set aside.'
" (People v. Calles (2012) 209 Cal.App.4th 1200, 1211.)
In determining whether juror misconduct occurred we accept
the trial court's credibility findings and findings of historical facts if
supported by substantial evidence. (People
v. Mendoza (2000) 24 Cal.4th 130, 195.)
Whether a verdict must be overturned for jury misconduct is resolved by
employing the substantial likelihood test, which is an objective standard. (In re Hamilton (1999) 20 Cal.4th 273,
296; People v. Marshall (1990) 50 Cal.3d 907, 951.) " 'Whether prejudice arose from juror
misconduct . . . is a mixed question of law and fact subject to an appellate
court's independent determination.' "
(People v. Danks (2004) 32 Cal.4th 269, 303.)
Turning first to the question posed by Juror No. 12, we
conclude there was no misconduct when that juror asked the question about the
"clearance time of a date rape drug."
Our high court and Courts of Appeal
has the discretion to allow jurors to submit
long as certain controls are in place. (See, e.g., People v. Majors (1998) 18
Cal.4th 385, 407; People v. Cummings (1993) 4 Cal.4th 1233, 1305; People
v. Anderson (1990) 52 Cal.3d 453, 481; People v. McAlister (1985)
167 Cal.App.3d 633, 644; People v. Gates (1979) 97 Cal.App.3d Supp. 10,
13-15.) The court should not allow
jurors to ask questions directly to witnesses (McAlister, supra, at pp. 644-645), and
questions instead should be written down and submitted for consideration by the
court and counsel outside the presence of the jury. (Cummings,
supra, at p. 1305; McAlister, supra, at p. 644.) The questions, if appropriate, may then be
asked by the court or by counsel. (Majors, supra, at p. 407; Cummings, supra, at p. 1305.)
the record shows Juror No. 12 submitted a written question to the court. Outside the presence of the jury, the court
then appropriately met with counsel to discuss the question. The record shows all agreed the best way to
respond to the question was to reread the stipulation of the parties regarding
the negative drug screen performed on the victim and to re-admonish the
jury. The record shows the court did
exactly that when it told the jury the parties had stipulated a urine sample from
the victim was collected on February 16, 2010, a comprehensive drug screen was
subsequently performed on that sample and the result of that screen was
negative for all substances. We thus
conclude there was no misconduct with respect to Juror No. 12.
However, Juror No. 10's conduct is another issue
altogether. The record shows that
sometime between opening and closing argument, Juror No. 10 went online and
looked up the bar where the victim worked.
Juror No. 10 told the court and counsel she did so for no apparent
reason other than when she hears about a new place she "always" looks
them up and in this instance she looked up the name of the bar where the victim
worked and read a few reviews about the bar from a website. Juror No. 10 stated that she spent only a few
minutes online reading about the bar, that the reviews she read in no way
affected her deliberations and that she only mentioned she had done so after
the jury had completed its deliberations and reached a verdict.
The People wisely concede Juror No. 10 committed misconduct
by looking up the bar online, even if for just a few minutes. The issue thus becomes whether that
misconduct, which we presume was prejudicial, is rebutted " 'by a
reviewing court's determination, upon
examining the entire record, that there is no substantial likelihood that
the complaining party suffered actual harm.' " (People
v. Thomas (2012) 53 Cal.4th 771, 819.)
Indeed, "[w]hen juror misconduct involves the receipt
of information from extraneous sources, a substantial likelihood of juror bias
'can appear in two different ways.
First, we will find bias if the extraneous material, judged objectively,
is inherently and substantially likely to have influenced the juror. [Citations.]
Second, we look to the nature of the misconduct and the surrounding
circumstances to determine whether it is substantially likely the juror was
actually biased against the defendant.
[Citation.]' [Citation.] . . .
'In an extraneous-information case, the "entire record"
logically bearing on a circumstantial finding of likely bias includes the
nature of the juror's conduct, the circumstances under which the information
was obtained, the instructions the jury received, the nature of
trial, and the strength of the evidence against the
defendant.' " (
conclude from the entire record that there is no substantial likelihood that
White suffered actual harm when Juror No. 10 went online for a few minutes and
read a few reviews about the bar where the victim worked. The reviews about the bar were irrelevant to
any of the issues in the case, to wit:
whether the victim consented to sexual intercourse with White at the
hotel, after the victim had become intoxicated while out with a group that
included White.
That one of the reviews read by Juror No. 10 mentioned an
attractive brunette that worked at the bar does not change our conclusion: the jury saw the victim for itself, heard her
testimony and it decided whether to accept her version of what happened or
White's.
In addition, the review read by Juror No. 10 regarding the
atmosphere in the bar where the victim worked was already in evidence, as
several witnesses testified it was a neighborhood bar where the bartenders
remembers their customers' names and drink preferences. Thus, the extrajudicial information learned
by Juror No. 10 in the few minutes she read reviews online about the bar (not
from the bar's website) was information already before the jury.
Moreover, we reject White's contention that Juror No. 10's
disregard of the court's instructions demonstrated actual bias against
him. (See People v. Nesler (1997) 16 Cal.4th 561, 582-583 [actual bias occurs
when a juror is unable to put aside his or her impressions or opinions based on
extrajudicial information he or she received and render a verdict based solely
on the evidence at trial].) We note from
the record that the trial court, with counsel present, extensively questioned
Juror No. 10 and she denied any improper motive in looking up the bar and told
the court she did so out of curiosity, which is something she often did when
she hears of a new restaurant or place.
The court clearly found Juror No. 10 credible and believed her testimony
that her actions did not in any way influence the jury's deliberations.
Thus, although Juror No. 10 engaged in misconduct, given the
nature of the misconduct, the circumstances surrounding the misconduct and the
issues in the case, and given the strength of the evidence against White
reviewed ante, we independently
conclude the presumption of prejudice has been rebutted because that misconduct
was fleeting and was neither inherently and substantially likely to have
influenced Juror No. 10 or the other members of the jury nor was Juror No. 10
actually biased against White.
Denial
of Probation
Lastly, White contends the trial court abused its discretion
when it sentenced him to state prison for three years and denied his request
for probation.
in determining whether to grant or deny probation. A defendant who is denied probation
bears a heavy burden to show the trial court has abused its discretion. (People v. Carbajal (1995) 10 Cal.4th
1114, 1120; People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) " 'In reviewing [a trial court's
determination whether to grant or deny probation], it is not our function to
substitute our judgment for that of the trial court. Our function is to determine whether the
trial court's order granting [or denying] probation is arbitrary or capricious
or exceeds the bounds of reason considering all the facts and
circumstances.' " (
Here, the record shows that during the sentencing hearing
the court fully considered the facts and circumstances of the case. The court heard from the victim, who made a
lengthy statement asking the court to sentence White to prison for the rape
that the victim claimed "forever changed [her] life." The record shows that in connection with
sentencing the court also considered the sentencing statement submitted by the
defense, which requested formal probation based on White's age, lack of
significant criminal history and his cooperation with law enforcement for
having what White called "drunk sex" with the victim; a 13-page
psychological evaluation of White suggesting White was a low risk to reoffend;
the probation report, which, after identifying various mitigating factors
including White's lack of significant criminal history, nonetheless recommended
White be sentenced to state prison for three years; and the lengthy argument of counsel.
Although there were various factors favorable to White,
which the record shows the court carefully considered and which at one point
appeared to sway the court to consider granting probation, in the end the
record also shows the court noted this was a presumptive prison case and it
found no reason to deviate from that presumption given the seriousness of the
crime and the impact of that crime on the victim. On this record, we conclude the court's order
denying White probation was not " 'arbitrary or
capricious' " or " 'exceed[ed] the bounds of reason
considering all the facts and circumstances' " of the case. (People
v. Weaver, supra, 149 Cal.App.4th
at p. 1311.)
DISPOSITION
The
conviction in count 2 for violation of section 261 is vacated. In all other respects the judgment is
affirmed.
HUFFMAN,
J.
I CONCUR:
McDONALD, J.
Acting
P. J. BENKE, concurring and dissenting.
I dissent to part B of the
majority's unpublished opinion, which holds that one of the two rape
convictions of defendant Billy Charles White under Penal Code section 261
must be vacated based on the holding of People
v. Craig (1941) 17 Cal.2d 453 (Craig).
In my view, the majority's significant decision to apply
on count 2 for rape of an unconscious person (§ 261, subd. (a)(4)(A))
undermines almost 50 years of section 654 jurisprudence;
gives defendants like White a potential "undeserved windfall" (People v. Benson (1998) 18 Cal.4th 24, 38-40 (dis. opn. of Chin,
J.) (Benson), cited with approval in
338, fn. 9); and creates needless (and perhaps hopeless) confusion on
the issue of the determination of whether separate criminal offenses exist when
a defendant is separately charged and convicted under various provisions of a
criminal statute based on conduct arising from a single act.
I note that although courts have
typically applied Craig to sex crimes
cases (see, e.g., People v. Smith (2010)
191 Cal.App.4th 199 [applying Craig to
vacate a defendant's conviction for rape of an unconscious person and let stand
his conviction for rape of an intoxicated person]), as White recognizes in his
supplemental briefing to this court, Craig
also has been applied in other contexts, including to financial
crimes. (See, e.g., People v. Ryan (2006) 138 Cal.App.4th 360, 368, 371 [relying in
part on Craig and a California
Supreme Court case from 1865 to hold a defendant could not be convicted of two
counts of forgery for signing and then attempting to cash the same check
because there was but one crime of forgery, as the "acts" enumerated
in the various subdivisions of section 470 constitute but one offense of
forgery].) Given the majority's view of
its application, where a defendant is charged and convicted of violating
multiple provisions of a criminal statute based on the defendant's single act
or uninterrupted course of conduct.
I would affirm White's conviction on count 2 for violation of section
261, subdivision (a)(4)(A) and, like the trial court below, would apply section
654, subdivision (a) to stay (and not vacate, as has the majority) that
conviction.
A. Craig
In Craig, supra, 17 Cal.2d at page
455, the defendant was convicted of both rape by force and violence, and
statutory rape. He was sentenced to
concurrent terms on both convictions.
propriety of entering separate judgments and sentences for both forcible and
statutory rape, charged under separate counts, when but a single act of sexual
intercourse has been committed." (Ibid.) The court in Craig observed: "There has been a violation of but one
statute—section 261 of the Penal Code.
And, while the proof necessarily varies with respect to the several
subdivisions of that section under which the charge may be brought, the sole
punishable offense under any and all of them is the unlawful intercourse with
the victim." (Id. at p.
458.)
On this basis,
the court in Craig modified the
judgment to state that the defendant had been "'found guilty of the crime
of Rape, a felony, as defined and
proscribed in subdivisions 1 and 3 of section 261 of the Penal Code, and as
charged in counts 1 and 2 of the amended information, being separate statements
of the same offense . . . .'" (Craig, supra, 17 Cal.2d at p. 459.)
B. Analysis
It appears the
court in Craig treated the issue before it as one involving included
offenses, as noted by the following language from that opinion: "The authorities have set down certain
rules or tests whereby it may generally be determined whether one or more
offenses result from a single act or transaction. Frequently, the test is stated to be 'the identity
of the offenses as distinguished from the identity of the transactions from
which they arise. A defendant may be
convicted of two separate offenses arising out of the same transaction when
each offense is stated in a separate count and when the two offenses differ in
their necessary elements and one is not included within the other.'" (Craig, supra, 17 Cal.2d at p. 457.)
As the
majority recognizes (see maj. opn. ante,
at p. 14), the rule permitting multiple convictions for a single act is based
on section 954, which states that "[a]n accusatory pleading may charge
. . . different statements of the same offense" and "the
defendant may be convicted of any number of the offenses charged." As the majority also recognizes, courts
uphold multiple convictions when "each crime had a distinct element not
required of the other and neither crime was the lesser included offense of the
other." (Maj. opn.
exactly the situation in the instant case involving defendant White.
Indeed, I
believe the crime of rape of an intoxicated person (§ 261, subd. (a)(3))
and rape of an unconscious person (§ 261, subd. (a)(4)(A)) are separate
offenses even when based on a single act of unlawful intercourse. Under section 261, subdivision (a)(3), the
crime of rape occurs "[w]here a person is prevented from resisting [the
act of sexual intercourse accomplished with a person not the spouse of the
perpetrator] by any intoxicating or anesthetic substance, or any controlled
substance, and this condition was known, or reasonably should have been known
by the accused." (§ 261, subd.
(a)(3).)
However, under
subdivision (a)(4) of section 261, the crime of rape occurs "[w]here a
person is at the time unconscious of the nature of the act, and this is known
to the accused. As used in this
paragraph, 'unconscious of the nature of the act' means incapable or resisting
[the act of sexual intercourse accomplished with a person not the spouse of the
perpetrator] because the victim meets one of the following conditions: [¶]
(A) Was unconscious or
asleep." (§ 261, subd.
(a)(4).)
Here, although
unlawful sexual intercourse may be committed with a person who is both
unconscious and intoxicated, in the abstract it obviously is possible to commit
such an act with an unconscious person who is not intoxicated;
similarly, it is possible to commit an act of unlawful sexual intercourse with
an intoxicated person who is not unconscious. Given these possibilities, subdivisions
(a)(3) and (a)(4)(A) of section 261 are not lesser included offenses of each
other. Moreover, because subdivisions
(a)(3) and (a)(4)(A) of section 261 each have their "own distinct and
essential elements" (see Tideman,
supra, 57 Cal.2d at p. 584), I
conclude they are separate offenses for purposes of section 654.
I note the
majority also states that subdivisions (a)(3) and (a)(4)(A) of section 261 are
not separate crimes because they "do not contain separate
punishments." (Maj. opn.
because section 264 provides the punishment for rape under section 261
"without reference to the various subdivisions [in section 261] which
establish the circumstances in which sexual intercourse can be proved to be
rape" (maj. opn. ante, at p.
16), the various subdivisions in section 261 ipso facto cannot constitute
separate offenses. I disagree.
Subdivision
(a) of section 654 does not support this analysis, as it provides that an
"act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision." I do not read this language as requiring there
to be "separate punishments" in order for there to be separate
offenses under the various subdivisions of section 261 or any other similar
criminal statute.
Here, the
"act" for purposes of section 654, subdivision (a) was the unlawful
intercourse of the victim by White.
Moreover, our Legislature has determined that such an "act" is
"punishable in different ways by different provisions of law," as it
set forth in the various subdivisions of section 261.
That the
punishment for rape is provided in a single statute in section 264 does not, in
my view, preclude multiple rape convictions arising from a single act of, or
continuous course of conduct by, a defendant, when that conduct violates
multiple subdivisions of section 261. I
believe the "separate punishments" form-over-substance-rule expressed
by the majority in this unpublished opinion contravenes Supreme Court precedent
upholding a defendant's multiple convictions arising from a single act or an
uninterrupted course of conduct when each crime has its "own distinct and
essential elements." (See
I also believe
the majority errs by failing to consider Craig
in its historical context. In
finding that each means of committing rape was included within the other
means set forth under former section 261, the court in Craig was bound by
the then-prevailing view of rape as a single form of "outrage" to the
person and feelings of the victim and that a victim would not be "doubly
outraged, once by force and once because of her tender years, but suffered only
a single offense." (People v.
Mummert (1943) 57 Cal.App.2d 849, 856–857, overruled in People v.
Collins (1960) 54 Cal.2d 57, 60.)
Society's evolving view of rape teaches that in enacting separate
subdivisions in section 261, each with its own elements, the Legislature has
recognized each subdivision as a separate and distinct offense.
Perhaps more importantly, I believe Craig should be limited to its facts based on how the defendant in
that case was charged and based on the fact dual judgments were entered against
him. As Craig notes, the information expressly pled counts 1 and 2 against
the defendant as "'different statement[s] of the same offense.'" (
italics added.) Moreover, once the
defendant in Craig was convicted of
both counts, dual judgments were entered against him on that "same
offense." These unique facts help explain why the
court in Craig consolidated the dual
judgments into a single rape conviction.
In addition, after the defendant in
Craig was convicted of both counts of rape, he was sentenced "'for the
term prescribed by law,'" with the sentences to run concurrently. (Craig,
17 Cal.2d at pp. 454-455.)
However, in 1941 when Craig was
decided, the State
Board of Prison Terms and Paroles was responsible for fixing the definite
sentence term of defendants. Thus, our
Supreme Court in Craig was
understandably concerned that the defendant would be potentially
"disadvantage[d]" (id. at
p. 459) by dual sentences, even though they ran concurrently, and thus consolidated
the judgments to remove any such potential
prejudice or disadvantage. (
"disadvantage" (e.g., dual punishment) no longer exists today because
courts and not the State Board of Prison Terms and Paroles are responsible for
imposing sentence and because section 654 precludes such double
punishment.
Indeed, the
issue addressed by Craig in my view
is more appropriately resolved under our section 654 jurisprudence, as
evidenced by a long line of cases applying that statute to multiple convictions
based on a single act or an indivisible course of conduct.
as discussed in In re Hess (1955) 45
Cal.2d 171, 174 (Hess).
Briefly, Hess involved whether the defendant could be convicted of
contributing to the delinquency of a minor when that offense was not charged in
the information, after the jury acquitted the defendant of the offense of rape
by force and violence under former section 261, subdivision (3). Among other arguments, the People in
conviction for contributing to the delinquency of a minor was a lesser included
offense of the crime of statutory rape, and thus under Craig, there was "but one crime of rape, and the six subdivisions
of section 261 . . . merely state six different ways of committing
the same crime." (
In rejecting this argument,
our high court discussed Craig as
follows: "In that case it was held
that the defendant could not be convicted on two counts merely because he
committed a forcible rape on a victim under 18 years of age. Although it was stated in the
section 261 of the Penal Code 'merely define the circumstances under which an
act of intercourse may be deemed an act of rape; they are not to be construed
as creating several offenses of rape based upon that single act,' [citation],
problem then before the court, that is, whether the defendant could be doubly
punished for a single act. Under section
654 of the Penal Code it is clear that double punishment would be improper
[citations], regardless of whether there
is but one offense or six different offenses of rape." (Hess,
supra, 45 Cal.2d at p. 174, italics
added.) Because the defendant in
offense of contributing to the delinquency of a minor and because that offense
was not a necessarily included offense of the crime of rape, the defendant's
conviction for contributing to the delinquency of a minor was reversed. (Id. at
p. 177.)
Justice Chin in his dissent
in Benson, supra,
18 Cal.4th 24, cited with approval in
People v. Correa, supra, 54 Cal.4th 331, 338,
fn. 9, detailed the development of our state's section 654 jurisprudence and,
in my view, explains why section 654
should apply to situations like the instant case where a defendant is charged
and convicted of separate crimes—each having its "own distinct and
essential elements" (see Tideman,
supra, 57 Cal.2d at p. 584)—arising
from a single act:
"Section 654 was enacted
in 1872. Although amended as recently as
1997, it has remained unchanged in relevant respects. It currently provides, as relevant: 'An act or omission that is punishable in
different ways by different provisions of law shall be
punished . . . , but in no case shall the act or omission
be punished under more than one provision.'
The statute is silent on the procedure to follow when there are multiple
convictions that may be punished but once.
The courts developed that procedure.
"The question the courts
faced was how to guarantee a defendant would not receive multiple punishment in
violation of section 654 without giving that defendant an undeserved
windfall. [Italics added.] Generally, the Legislature has permitted
multiple conviction even when multiple punishment is prohibited. 'An accusatory pleading may charge two or
more different offenses connected together in their commission, or different
statements of the same offense . . . . The prosecution is not required to elect
between the different offenses or counts set forth in the accusatory pleading,
but the defendant may be convicted of any number of the offenses charged . . . .' (§ 954.)
As we explained in People v. Pearson (1986) 42 Cal.3d 351, 354 (
general rule that defendants may be charged with and convicted of multiple
offenses based on a single act or an indivisible course of conduct.' The courts had to decide how to treat multiple
convictions that could be punished but once.
Setting aside all but one of the convictions would be unwise because, if
that conviction were ever vacated for any reason, the others would not be
available to replace it. The courts
struggled with this question in the decade of the 1960's.
"Early cases were
inconsistent in their treatment of cases covered by section 654. Some simply set aside the excess
conviction. (See People v. McFarland
(1962) 58 Cal.2d 748, 763.) However, as
we noted in McFarland, 'section
654 proscribes double punishment, not double
conviction . . . .'
[Citation.] In McFarland, because '[t]he appropriate
procedure . . . is to eliminate the effect of the judgment as to the
lesser offense insofar as the penalty alone is concerned,' we 'reversed [the
judgment] insofar as it imposes a sentence for grand theft, and in all other
respe
| Description | A jury found Billy Charles White guilty of rape of an intoxicated person (Pen. Code,[1] § 261, subd. (a)(3); count 1) and of rape of an unconscious person (id., subd. (a)(4)(A); count 2). The trial court sentenced White to three years in state prison and ordered him to register as a sex offender. White contends the evidence is insufficient to prove under section 261 that when he engaged in sexual intercourse with the victim, he knew the victim was unable to resist because of intoxication (count 1) or because the victim was unconscious of the nature of the act of intercourse (count 2). White also contends the trial court prejudicially erred by refusing both to instruct the jury on mistake of fact and to grant his new trial motion based on juror misconduct. Finally, White contends the trial court abused its discretion when it denied him probation. In addition to these contentions, on our own motion we requested supplemental briefing from the parties whether White's convictions on counts 1 and 2 should be consolidated under People v. Craig (1941) 17 Cal.2d 453 (Craig) and its progeny into a single conviction given there was a single act of sexual intercourse. As we explain, we reject White's contentions on appeal. After considering the supplemental briefing of the parties, we conclude that White was not properly convicted both on counts 1 and 2 and further, that the judgment must be modified to reflect only one conviction for violation of section 261. |
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