P. v. Ricardo

Filed 5/2/07 P. v. Ricardo CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Robert D. Ricardo, Jr., was found guilty after jury trial of the crimes of rape in concert, rape by the use of intoxicants, and rape of an unconscious victim. (Pen. Code,  264.1, 261, subd. (a)(3), 261, subd. (a)(4).) Appellant was sentenced to serve seven years in prison. He contends: (1) there is insufficient evidence to support the conviction for rape in concert, because there is insufficient evidence of the use of force or violence in accomplishing the rape; and (2) the jury instructions may have misled the jury with respect to the crime of rape in concert. We reject these contentions and affirm.

I. FACTS AND PROCEDURAL HISTORY

This appeal arises from the rape of a 14-year-old victim, Vanessa P., by appellant and his codefendant, Santonio Reese.

On October 19, 2004, Vanessa got out of school around two-thirty or three in the afternoon, and got onto a bus to go to the house of a friend named Maribelle who lived in Suisun. After Vanessa got off the bus and was walking towards Maribelles house, Vanessa was hailed on the street by two young males driving by. A young man subsequently identified as appellant was driving, and he had a male passenger, subsequently identified as Santonio Reese (Reese), with him in the front seat on the passenger side.

The two males started talking to Vanessa, and began trying to persuade her to hang out with them. Eventually, Vanessa agreed, and got into the car. She sat in the back. She noticed that the male who had previously been on the passenger side in the front seat, i.e., not appellant, had a distinctive tattoo on his arm, showing a cross and words or names, saying, Lil and Tone. They all drove to appellants house.

After they got to appellants house, they began talking in the garage and Vanessa told the young men that she was not a ho and did not want to do anything sexual with them. Later they started watching television in a bedroom. They all began drinking Jack Daniels whiskey straight from the bottle; Vanessa had a big drink. Appellants dad came to the door of the bedroom at some point to check to see if there was anyone present besides appellant, but Vanessa hid, and appellant assured his dad that there was no one else present.

After appellants dad left, the young people kept on drinking. The bottle had been full when they started, but it went down to about half full. Reese began trying to touch her in a sexual way. Vanessa resisted and pushed him off, and told him to get off of her. Appellant also began touching her in a sexual way. Then Reese tried to get on top of her again, but she tried to push him away. Then she passed out.

According to the testimony of Reese, who testified against appellant at trial after making a plea bargain, appellant took off the victims clothes and began placing his penis into her vagina for about 15 or 20 minutes, while Reese grabbed her breasts. At some point the victim fell off the bed and hit her head, and then appellant and Reese dressed her again and drove her to another neighborhood, where they left her in the front yard of a house. She was later found by the police, bleeding and in pain from her vagina.

An examination of the victim by a nurse showed bleeding and injury to her vagina, and other injuries such as an abrasion on her face, and scratches and bruises on other parts of her body. The vaginal injuries were consistent with a lot of trauma -- blunt trauma or force against that area or repeated rubbing with poor lubrication.

Vanessa was interviewed by the police. She described the two young men who had attacked her to Officer Erik Watts, who testified at trial. She described the distinctive tattoos on the arms of the suspect later identified as Reese, and she described appellant and his home. After she had been drinking, Reese tried to get on top of her, and pinned her arms to the bed, but she began yelling and forced him off. Then appellant, who had been standing behind her, pulled her pants down, exposing part of her buttocks. Vanessa could see that his pants were pulled down, and his erect penis was exposed. Appellant got on top of her on the bed, but she pushed him off. Then the two young men talked to each other, and Reese got back on top of her, pinning her to the bed. That was the last thing she could recall at the house.

A concerned citizen learned from a newspaper article about the victims description of the distinctive tattoos on the arms of one of the suspects, and called the police to tell them that a young man she knew as Tone had dated her younger sister, and had tattoos like that. She told the police where Tone lived.

The day after the rape, appellant warned Reese not to talk to anyone about the rape. However, Reese told some people at school, and he and appellant got into a fight about it, which their teacher had to break up.

Appellant was charged with the crimes of rape in concert, rape by the use of intoxicants, and rape of an unconscious victim. (Pen. Code,  264.1, 261, subd. (a)(3), 261 subd. (a)(4).) After a jury trial at which the evidence summarized above was introduced, he was convicted on all of these counts. He was sentenced by the court to the middle term of seven years in prison on the rape in concert count, with sentences stayed on the other counts.

II. DISCUSSION

A. Sufficiency of the Evidence

Appellant does not challenge on appeal his convictions for rape by intoxication and rape of an unconscious person, but appellant contends his conviction for rape in concert must be reversed, for lack of substantial evidence that the rape was accomplished by force or violence.

1. Standard of Review

When the sufficiency of the evidence is in dispute, the court must review the entire record, and drawing all reasonable inferences in favor of [the judgment], . . . determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Hughes (2002) 27 Cal.4th 287, 357.) On appeal, the court must determine whether the record contains substantial evidencei.e., evidence that is credible and of solid value, from which a rational trier of fact could have found that the elements of the crime were established beyond a reasonable doubt. (People v. Jennings (1991) 53 Cal.3d 334, 364.) On review, however, the appellate court need not be convinced beyond a reasonable doubt. (People v. Alcala (1984) 36 Cal.3d 604, 623 (Alcala), disapproved on other grounds in People v. Falsetta (1999) 21 Cal.4th 903, 911.) The appellate court must merely determine whether any rational trier of fact at all could be so persuaded. (Alcala, supra, at p. 623, italics in original.)

2. The Evidence was Sufficient to Support the Conviction for Rape in Concert.

Appellant contends there was insufficient evidence of the use of force or violence to support a conviction for rape in concert. Under the deferential standard of review we apply in this appeal, we disagree.

As appellant contends and the People concede, a conviction for rape in concert requires a showing that the rape was accomplished by force or violence. (Pen. Code,  264.1; see also People v. Griffin (2004) 33 Cal.4th 1015, 1023-1024, 1029 (Griffin); In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 (Jose M.).) However, no particular level of strong or overwhelming force need be shown; it is enough if the evidence shows the use of force sufficient to determine that the act of intercourse was against the victims will. (Griffin, supra, at pp. 1023-1024.) For instance, pinning the arms of a victim is sufficient. (Ibid.) In addition, a forcible rape is shown if the victim attempts to resist, but the perpetrator uses force to continue or accomplish the act. (In re John Z. (2003) 29 Cal.4th 756, 760-763.)

In the present case, the evidence shows that the victim resisted and pushed her attackers away as long as she was conscious, despite being pinned to the bed. In addition, even through the victim was unconscious at the time of the vaginal penetration, the evidence also shows bleeding and injury to her vagina, and other injuries such as an abrasion on her face, and scratches and bruises on other parts of her body. The injuries to the vagina were consistent with a lot of trauma -- blunt trauma or force against that area. Taken as a whole, and viewed under the deferential standard of review we must apply, this evidence constituted a sufficient showing of the use of force or violence. (See Griffin, supra, 33 Cal.4th at p. 1028.)

B. Any Error in the Jury Instructions was Harmless.

Appellant also contends the jury instructions may have been confusing to the jury, and this may have led to his conviction for rape in concert under section 264.1. We find any error in the jury instructions was harmless in this case.

Appellant concedes that the jury was correctly instructed that the crime of rape in concert in violation of section 264.1 required a showing that appellant voluntarily acted in concert with another person by force or violence and against the will of the victim personally or by aiding and abetting . . . . (Italics added.) Despite this explicit requirement that force or violence must be shown, appellant contends the jury may have been confused by another definitional instruction given to the jury a few pages previously, the definition of rape in violation of section 261, subdivision (a)(2), which requires a showing that rape be accomplished by means of force, violence, duress, menace, or fear . . . . Appellant contends that the jury may have seized on the mention of duress in this instruction, and may have convicted appellant of a violation of section 264.1 even though the jury concluded that only duress, and not the force or violence required for a violation of section 264.1, was shown. (Cf. Jose M., supra, 21 Cal.App.4th at p. 1477.)

The jury was told that duress was a direct or implied threat of force. (Italics added.) The jury was also explicitly told that a conviction for rape in concert required a showing of actual force or violence. We presume the jurors understood and followed the instructions, which distinguished between threats of force and actual force. (See People v. Fauber (1992) 2 Cal.4th 792, 823.) In addition, in the present case there was no evidence of any such threats, only evidence of actual force. It is therefore clear beyond a reasonable doubt that any potential confusion caused by the language of the jury instructions was not prejudicial in this case. (Chapman v. California (1967) 386 U.S. 18.)

III. DISPOSITION

The judgment of conviction is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

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