Filed 4/19/22 P. v. Light CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Michael B. Sheltzer, Judge.

Laurel Thorpe, Siena Kautz and Devon Stein, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Daniel B. Bernstein, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

A jury convicted Kevin Jay Light (appellant) of numerous offenses for the rape of his girlfriend’s 14-year-old daughter. The trial court sentenced appellant to 11 years in state prison.

On appeal, appellant challenges the sufficiency of the evidence of his conviction for rape by threat (Pen. Code, § 261, subd. (a)(6)),[1] because there was no evidence the victim heard or was aware of his threats. We conclude the evidence was sufficient because appellant’s threats dissuaded the victim’s mother from attempting to stop the rape. In addition, appellant contends the trial court erroneously omitted an element of rape by threat in the jury instructions. We agree, but conclude any error was harmless beyond a reasonable doubt.

Appellant also challenges the sufficiency of the evidence supporting his conviction for criminal threats (§ 422). Respondent concedes the evidence was insufficient. We agree, and reverse the conviction, vacate appellant’s sentence, and remand the matter for resentencing.

Because appellant must be fully resentenced, we need not address appellant’s remaining contentions relating to his sentence, including his claim the imposition of the restitution fine violates the Eighth Amendment and his right to due process, and his claim the matter should be remanded for resentencing in light of newly enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) and Assembly Bill No. 518 (2021-2022 Reg. Sess.). On remand, appellant may raise these claims in the trial court if he so chooses.

PROCEDURAL BACKGROUND

The Tulare County District Attorney’s Office filed an information charging appellant as follows: forcible rape of a child victim 14 years of age or older (§§ 261, subd. (a)(2)/264, subd. (c)(2); count 1); rape by threat (§ 261, subd. (a)(6); count 2); lewd act upon a child by a person at least 10 years older than the child (§ 288, subd. (c)(1); count 3); forcible rape in concert (§ 264.1; count 4); and criminal threats (§ 422; count 5).

The jury found appellant guilty of all charges. At sentencing, the court imposed the aggravated term of 11 years on count 1 and stayed sentence on the remaining counts pursuant to section 654.

FACTUAL BACKGROUND

1. E.G.’s testimony.

E.G. is the daughter of appellant’s girlfriend, M.G. (mother). In April 2016, E.G. was 14 years old. She lived at her grandmother’s house with her two brothers. Mother lived with appellant but stayed at the grandmother’s house on occasion.

One weekend in April 2016, E.G.’s grandmother went out of town, leaving E.G. and her brothers at the grandmother’s house with mother. That weekend appellant came over to the grandmother’s house. E.G. did not like appellant. They argued frequently, and on one occasion their argument escalated into a physical fight. E.G. disliked the way appellant treated her mother and described him as controlling and abusive. E.G. also described one incident in which he touched her breasts.

E.G. testified that sometime that weekend she heard her mother ask her to come into the guest room. The guest room was where her mother usually stayed at the grandmother’s house. After E.G. entered the room, someone pushed her into the room and locked the door. She heard appellant’s voice and felt someone remove her clothes and push her down on the bed lying face up. She felt appellant climb on top of her and insert his penis into her vagina. She could not see appellant because a pillow had been placed on her face, but she recognized appellant’s voice and smelled his cologne. She did not scream or fight back because she was scared and did not want her brothers to walk in and see what was happening.

Once appellant stopped, E.G. grabbed her clothes and left the room. After she left, her mother pulled her aside and apologized for being a “horrible mother.” E.G. pushed her mother away and went upstairs and took a shower. During the shower, she noticed a white fluid that she recognized as semen running down her leg. She bled from her vagina for about two hours after the rape and was sore for about a week.

E.G. did not tell anyone about the rape until she moved out of town in 2017. She first told her boyfriend about the rape, then reported it to the police.

2. Mother’s testimony.

Mother testified she began dating appellant in 2015 and that they are still in love. She did not want to see anything “bad” happen to appellant, and would do anything to protect him. She stated appellant has been violent with her, but it was “[her] fault half the time.” Appellant’s abuse of mother had caused several injuries including a broken toe, cracked ribs, and wounds requiring stitches. She denied being afraid of appellant while testifying but confirmed she has been afraid of him in the past. She admitted that in April 2016, she would do anything appellant wanted her to do out of fear that he would hit her or her children.

In the months leading up to the rape, appellant frequently told mother he wanted to have sex with E.G. Mother would attempt to change the subject, but on two occasions appellant’s comments led to a physical fight between the two, resulting in them both “being black and blue.” Appellant would also sometimes call mother by E.G.’s name during sex.

Mother claimed not to have a good memory of the rape of E.G. because she was high on methamphetamine, her drug of choice. During her testimony, mother was confronted with a portion of her 2018 interview with Sergeant Richard Carrillo of the Porterville Police Department. The interview was conducted while she was in custody on a warrant for a drug offense. During the interview, mother stated that sometime prior to E.G. going into the guest room, appellant told mother he would snap E.G.’s neck if mother did not let him have sex with E.G. Mother acknowledged making the statement to Sergeant Carrillo, but claimed it was not true. She stated her memory of the interview was “kind of fuzzy” because she “was high at that time,” and “would have told them anything just to be out of jail.”

Despite her claimed lack of memory, mother was able to recall that on the day of the rape; she asked E.G. if she wanted to “have a baby” for her, because mother had gotten her tubes tied. E.G. agreed, but mother did not think E.G. “comprehended what [she] was asking her to do.” After mother finished her cigarette, they both went to the guest room, where appellant was located. E.G. began taking her clothes off, but “started freaking out and didn’t want to do it.”

Mother acknowledged she remained in the guest room and saw appellant on top of E.G. holding her down. During the rape, mother sat in the corner and faced the wall at appellant’s direction. Appellant had told mother to “keep her nose in the corner like a good girl,” and that if she moved out of the corner he was going to hurt her. Mother saw E.G. had put a pillow over her face, and mother told her to try to “block it out.” At one point during the rape mother felt ill and left the room, and when she came back appellant was still raping E.G. Once appellant stopped, E.G. ran out of the room crying. Mother followed her out of the room and apologized.

Mother admitted she allowed appellant to have sex with E.G. and that she “should have never asked her to do that as a mother.” Prior to appellant’s trial, mother pled guilty to an unspecified sexual assault offense for her role in the rape.

3. Appellant’s Testimony.

Appellant denied having sex with E.G. He denied telling mother he wanted to have sex with E.G. He testified he believed E.G. accused him of rape as retaliation because he had accused the grandmother of having an extramarital affair in front of the grandmother’s husband. Appellant also believed E.G. was upset with him because he looked in her cell phone and discovered she was involved in a sexual relationship with her uncle, and because appellant would try to prevent mother from using drugs.

DISCUSSION

1. Appellant’s rape by threat conviction was supported by substantial evidence.

Appellant claims the evidence was insufficient to support the rape by threat conviction because there was no evidence E.G. heard or was aware of appellant’s threat to “snap” E.G.’s neck. Respondent contends that even if E.G. was not aware of the threat, the evidence was sufficient because appellant’s threat prevented mother from attempting to stop the rape.

“To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “We need not be convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether ‘ “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.]” (People v. Tripp, supra, at p. 955, italics omitted.)

We agree there was no evidence E.G. was aware of appellant’s threat to harm her. E.G. was not asked about the threat, and mother did not describe whether E.G. was present when the threat was made. However, the evidence was clear mother was aware of the threat, as appellant told mother directly that he would “snap” E.G.’s neck if mother did not allow him to have sex with E.G. In the months leading up to the rape, appellant told mother numerous times he wanted to have sex with E.G., but mother resisted. Mother did not relent until appellant threatened to physically harm E.G. Once mother relented, appellant was able to have sex with E.G.

Given there was no evidence E.G. was aware of appellant’s threat, appellant’s sufficiency of the evidence claim hinges on whether a violation of section 261, subdivision (a)(6) requires evidence that the rape victim heard or was aware of a threat by the perpetrator. Appellant therefore raises a question of statutory interpretation, which is a question of law subject to this court’s independent review. (John v. Superior Court (2016) 63 Cal.4th 91, 95.)

“ ‘When interpreting statutes, we begin with the plain, commonsense meaning of the language used by the Legislature. [Citation.] If the language is unambiguous, the plain meaning controls.’ [Citation.] ‘[W]henever possible, significance must be given to every word [in a statute] in pursuing the legislative purpose .…’ ” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131.)

Section 261, subdivision (a)(6), states:

“(a) Rape is an act of sexual intercourse accomplished under any of the following circumstances: [¶] … [¶]

“(6) If the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, ‘threatening to retaliate’ means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.”

Nothing in the plain language of the statute requires the victim to hear or otherwise be aware of the threat. All that must be shown is the act of sexual intercourse was accomplished against the victim’s will because of the threat. Where, as here, the perpetrator communicates the threat to a third party, thereby preventing or dissuading that third party from stopping or attempting to stop the rape, the threat element of the statute is satisfied. We, therefore, conclude appellant’s conduct fell within the contours of section 261, subdivision (a)(6), and find appellant’s conviction was supported by substantial evidence.

2. The trial court committed instructional error by omitting an element of the offense of rape by threat (§ 261, subd. (a)(6)). However, any presumed error was harmless.

1. Instructional Error.

Appellant contends the trial court committed instructional error by omitting an element of the offense of rape by threat (§ 261, subd. (a)(6)). Respondent concedes the omission was error, and we agree.

The trial court used CALCRIM No. 1000 to instruct the jurors on the elements of forcible rape (count 1) and rape by threat (count 2). The first three elements in CALCRIM No. 1000 for both offenses are identical:

“1. The defendant had sexual intercourse with a woman;

“2. He and the woman were (not married/married) to each other at the time of the intercourse;

“3. The woman did not consent to the intercourse.”

However, the fourth and final element for each offense is different. CALCRIM No. 1000 includes alternative instructions to be given depending on the offense charged. For the offense of forcible rape, the court is to give “Alternative 4A,” which states:

“The defendant accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else.”

For the offense of rape by threat, the court is to give “Alternative 4B,” which states:

“The defendant accomplished the intercourse by threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.” (Italics omitted.)

Here, the trial court used alternative 4A for the instruction for forcible rape and rape by threat. By omitting alternative 4B from the instruction for rape by threat, the trial court omitted an element of the offense. Therefore, the instruction was erroneous. (See People v. Mil (2012) 53 Cal.4th 400, 409 [“A trial court has a sua sponte duty to instruct the jury on … the elements of a charged offense”].)

2. Harmless Error.

The parties agree the prejudicial effect of an instruction omitting an element of an offense is reviewed under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). We agree the Chapman test applies to this error. (Neder v. United States (1999) 527 U.S. 1, 4 (Neder); People v. Mil, supra, 53 Cal.4th 400, 409.) In this context, “a demonstration of harmless error does not require proof that a particular jury ‘actually rested its verdict on the proper ground [citation], but rather on proof beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error [citation]. Although the former can be proof of the latter …, such a determination is not essential to a finding of harmlessness [citation], which instead “will often require that a reviewing court conduct a thorough examination of the record” [citation].’ [Citation.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 666; see also Neder, supra, 527 U.S. at pp. 17–19.) Our Supreme Court further clarified the appropriate harmless error analysis as requiring us to answer the question: “ ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’ [Citation.]” (Gonzalez, supra, at p. 663.)

We have reviewed the record to determine whether it “contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” (Neder, supra, 527 U.S. at p. 19; People v. Mil, supra, 53 Cal.4th at p. 417.) We conclude any rational juror could only find appellant accomplished the rape “against the victim’s will by threatening to retaliate in the future against the victim or any other person,” and that there was a “reasonable possibility that the perpetrator will execute the threat.” (§ 261, subd. (a)(6).)

We begin our analysis by observing the jury in this case convicted appellant of all charges. From this verdict we can draw the strong inference the jury found E.G.’s testimony credible, found appellant’s testimony not credible, and found mother’s testimony credible to the extent it implicated appellant in the charged offenses.

The jury’s credibility assessment is consistent with our review of the trial testimony. E.G.’s testimony was clear and candid, and she was not impeached with any prior inconsistent statements. Appellant’s assertion E.G. falsely accused him of rape in retaliation for his exposing her alleged incestuous relationship with her uncle and her grandmother’s alleged extramarital affair is not credible on its face and wholly uncorroborated.

As we discussed above, appellant told mother that he would “snap” E.G.’s neck if mother did not allow him to have sex with E.G. Although this threat was not communicated to E.G., the threat undoubtedly assisted appellant in accomplishing the act of having sexual intercourse with E.G. against her will. By threating E.G. with great bodily injury or death, appellant discouraged mother from interfering with his efforts to have sexual intercourse with E.G. Mother also testified appellant threatened to hurt her if she did not sit in the corner of the room during the rape, further discouraging her from interfering.

Ensuring mother did not attempt to stop the rape appears to have been critical to appellant’s goal of having sex with E.G. In the months leading up to the rape, appellant was fixated on having sex with E.G. When mother resisted appellant’s suggestion that he have sex with E.G., appellant physically harmed mother. However, appellant was not able to have sex with E.G. until he was able to dissuade mother from interfering, which he accomplished by threatening to snap E.G.’s neck if mother did not acquiesce to his demands. Limiting mother’s interference also decreased the likelihood E.G. would resist appellant. E.G.’s level of fear was undoubtedly magnified when she realized that her mother was not going to try to stop appellant from forcing himself upon her, but was instead sitting in the corner telling her to try to “block it out.”

Appellant contends mother’s no contest plea to a sexual assault offense for her role in the rape of E.G. conclusively established she voluntarily aided and abetted appellant, and therefore appellant’s threats played no role in her conduct. We disagree. Mother’s motivation for pleading guilty before trial is not in the record, and the legal question of whether mother had a valid duress defense is not before this court. Regardless, the record is clear that mother was subjected to a pattern of domestic abuse at the hands of appellant. While mother may have been motivated in part by a desire to please appellant, it is also clear she was motivated by a desire to avoid further abuse and to protect her daughter from the physical injury mother knew appellant was capable of inflicting.

We recognize mother testified she was not telling the truth when she told Sergeant Carrillo that appellant threatened to “snap” E.G.’s neck. The verdict indicates the jury was not persuaded by this attempt to deny appellant made the threat, and neither are we. Mother’s bias at trial in favor of appellant was clear. Mother admitted she was still in love with appellant and would do anything for him. Considering appellant’s long history of domestic abuse, it is apparent she was also still scared of him. When interviewed by Sergeant Carrillo in 2018 outside of appellant’s presence, she was able to speak honestly without fear of further abuse. When confronted with this prior statement in court, she responded with absurd excuses that we do not find credible. For example, mother testified she was so intoxicated during the interview that she does not remember much of what she said. However, Sergeant Carrillo, a 20-year peace officer with extensive training and experience relating to the use of methamphetamine, testified mother appeared emotional but not under the influence.

The evidence at trial overwhelmingly established that appellant communicated threats to mother to stop her from intervening in the rape of E.G., and that mother was dissuaded from intervening because of those threats. Accordingly, we conclude that the instructional error was harmless beyond a reasonable doubt.

3. Appellant’s criminal threats conviction was not supported by substantial evidence.

Appellant contends his criminal threats conviction (§ 422) was not supported by substantial evidence, because there is no evidence E.G. heard or was aware of the threat. Respondent concedes, and we agree. The offense of criminal threats requires the prosecution to establish “that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety.’ ” (People v. Toledo (2001) 26 Cal.4th 221, 228.) Because there was no evidence E.G. was aware of appellant’s threat to “snap” her neck, the threat could not have actually caused her to be in “sustained fear.”

We reverse appellant’s criminal threats conviction for insufficient evidence. Double jeopardy bars a retrial on the same charge. (See Lockhart v. Nelson (1988) 488 U.S. 33, 39.) We vacate appellant’s sentence, and we remand this matter for resentencing.

4. Forcible rape and rape by threat are not necessarily included offenses of rape in concert, and do not fall within the prohibition against multiple convictions for necessarily included offenses.

Appellant claims forcible rape (§ 261, subd. (a)(2)) and rape by threat (§ 261, subd. (a)(6)) are necessarily included offenses of rape in concert (§ 264.1), and therefore the trial court should have dismissed the forcible rape and rape by threat convictions. We disagree.

“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.” (People v. Reed (2006) 38 Cal.4th 1224, 1226, italics omitted; see § 954.) However, “[a] judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ ” (People v. Reed, at p. 1227.)

To determine whether one charged crime is a necessarily lesser included offense of another charged crime, the court applies the elements test. (People v. Reed, supra, 38 Cal.4th at p. 1231.) The elements test tasks the court with determining “whether ‘ “ ‘all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.’ [Citation.]” ’ [Citation.] In other words, ‘if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ ” (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)

Rape in concert is committed “when the defendant, voluntarily acting in concert with another person, by force or violence and against the will of the victim, commit[s] an act described in Section 261 or 289, either personally or by aiding and abetting the other person.” (§ 264.1, subd. (a).) Since rape in concert can involve an act described in section 289, which describes forcible acts of sexual penetration rather than sexual intercourse, rape in concert can be committed without committing forcible rape or rape by threat. Therefore, forcible rape and rape by threat are not necessarily lesser included offenses, and neither must be dismissed.

5. We need not reach the merits of appellant’s Eighth Amendment and due process claims pertaining to the restitution fine because appellant must be resentenced.

Appellant contends the trial court’s imposition of a $10,000 restitution fine without considering appellant’s ability to pay violates the Eighth Amendment and his right to due process. We conclude this claim is moot because we have already determined this matter must be remanded for appellant to be resentenced. Under the full resentencing rule, the trial court must resentence appellant on all counts. Our high court explained in People v. Buycks (2018) 5 Cal.5th 857, 893 that “when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ ” If appellant so chooses, he may address these claims in the trial court on remand.

6. On remand, appellant may address the applicability of Assembly Bill No. 518 and Senate Bill No. 567.

In supplemental briefing, appellant contends remand and resentencing are required pursuant to two legislative enactments that became effective while this appeal was pending: Assembly Bill No. 518 (2021-2022 Reg. Sess.), and Senate Bill No. 567 (2021-2022 Reg. Sess.). Assembly Bill No. 518 amended section 654 to give trial courts discretion not to impose the provision providing for the longest term of imprisonment. (§ 654, subd. (a).) Senate Bill No. 567 amended section 1170 such that the trial court may only impose the aggravated term where aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial. (§ 1170, subd. (b)(1) & (2).)

Respondent concedes the enactments apply retroactively to this case, as it was not final on appeal before these enactments became effective on January 1, 2022. (See In re Estrada (1965) 63 Cal.2d 740.) Respondent contends, however, that remand is unnecessary because the result would not have been different even if the new laws had been in effect at the time appellant was sentenced.

We need not address whether remand is appropriate based on these enactments because we have already determined remand and resentencing are necessary. If appellant so chooses, he may raise his claims regarding applicability of Assembly Bill No. 518 and Senate Bill No. 567 in the trial court during resentencing.

We take no position on how the trial court should exercise its sentencing discretion when it resentences appellant.

DISPOSITION

The conviction for criminal threats (§ 422; count 5) is reversed. Appellant’s sentence is vacated and this matter is remanded for resentencing. Following resentencing, the court shall forward a new abstract of judgment to the appropriate authorities. In all other respects, appellant’s judgment is affirmed.

LEVY, Acting P. J.

WE CONCUR:

POOCHIGIAN, J.

SNAUFFER, J.

[1] All further statutory references are to the Penal Code unless otherwise indicated.