Carlos M., In re
| Decision Date | 16 May 1990 |
| Docket Number | No. D009147,D009147 |
| Citation | 220 Cal.App.3d 372,269 Cal.Rptr. 447 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re CARLOS M., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. CARLOS M., a Minor, Defendant and Appellant. |
Jan Stiglitz, San Diego, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Robert M. Foster, Supervising Deputy Atty. Gen., Peter Quon, Jr., Deputy Atty. Gen., for plaintiff and respondent.
Carlos M. appeals from an order adjudging him a ward of the court because, as a minor, he had committed an oral copulation by force, in violation of PENAL CODE SECTION 288A(D)2. (Welf. & Inst.Code, § 602.) He was placed on probation, ordered returned to Mexico (pursuant to Welf. & Inst.Code, § 738), and enjoined not to return to the United States without proper documentation.
Appellant raises several contentions on appeal. First, he argues the court erroneously denied his motion to suppress certain evidence, which he contended was the tainted fruit of an illegal search and seizure. Second, he contends certain pretrial and in-court identifications of him by the victim should have been suppressed, being the tainted products of an unnecessarily suggestive "one-person show-up." Finally, he argues the evidence is insufficient, as a matter of law, to show that he forced himself upon the victim or was aware that others had applied force to the victim or threatened her with bodily injury.
For the reasons discussed below, we affirm.
The facts, viewed most favorably in support of the judgment (People v. Towler (1982) 31 Cal.3d 105, 109, 181 Cal.Rptr. 391, 641 P.2d 1253), indicate that at approximately 5:30 a.m. on August 22, 1988, the victim Michelle D. was sitting alone near Balboa Park Drive and Laurel Avenue, waiting to meet a friend. She was approached by two Hispanic men, who had been sitting with four other Hispanic men on a nearby concrete wall, and asked if she wanted a beer. She agreed and began walking with the two men across a field toward a tree-lined area.
After walking a short distance, however, she sensed something was wrong, decided to turn back, and informed the two men she had changed her mind. The two men grabbed her, said "come on," and forced her to continue with them across the field. At the edge of the field the victim saw she was being led toward a trail into a bushy area and began struggling violently and screaming. The two men pulled her down the trail, ripping her pants off in the process. The older of the two men then pulled down his pants and ordered her to "give it to him," while the younger man pulled out a folding knife, released the blade, and began waving it in her face. When the victim saw the knife she began crying and pleading with the two men, but the older man forced her to her knees and then forced her to orally copulate him.
The victim continued struggling to escape, but the two men picked her up and carried her down the trail to what appeared to be a makeshift campsite. Although she continued to struggle and plead to be released, the two men ripped open her shirt, pushed up her bra, and forced her again to orally copulate the older of them. A few minutes later the victim became aware that the four other Hispanic men (whom she had seen sitting on the wall) were arriving at the campsite, laughing and talking. As these newcomers arrived, the victim continued screaming and struggling to escape.
Despite the victim's continued struggling and screaming, the first two men continued to hold the victim on the ground while the four newcomers laughed, pulled down their pants and began masturbating, and then three of the newcomers forced the victim to orally copulate them. A short time later the victim was held down on the ground and her legs were forced apart; then one of the males, after putting on a condom, forced sexual intercourse on her. After he withdrew and motioned to another to take his turn, the victim began screaming more loudly. In response, a newcomer displayed the knife again, held it to the victim's neck, and told her to "shut up" or he would kill her. Thereafter, one of the newcomers forced her to orally copulate him while another of the newcomers forced intercourse on her.
The victim testified she was forced to have intercourse with five of the six men, the sixth man having unsuccessfully attempted penetration. The victim also testified she was forced into 10 separate episodes of oral copulation and one episode of anal penetration. During the incident, which lasted approximately one and one-quarter hour, the victim testified all of the men participated in pinning her to the ground and forcing her to orally copulate them and to engage in sexual intercourse. Eventually the men departed, leaving the victim alone. As she collected her clothes to leave, however, one of the men returned and tried to force her again to orally copulate him, but she vomited and began hitting him, driving him away.
The victim returned to Laurel Street, located a police officer at about 7:20 a.m., and reported the crime, first giving the officer generalized descriptions of the six assailants, and later giving him more detailed descriptions of their appearance and clothing. The victim was later taken to a nearby hospital for a medical examination designed for rape victims, arriving at approximately 8:45 a.m. The examination, which concluded at about 10:45 a.m., revealed the presence of sperm in her vagina, a lot of vegetation on her perineum, and bruises and scratches on her back, knees and breasts.
While receiving medical attention at the hospital, the victim was shown several men brought to that location by investigating officers. She identified several of the men as her attackers, basing such identifications on her recollections of the events surrounding the assault upon her. One of the persons identified was appellant. Appellant admitted to an investigating officer, during a custodial interrogation the following day, that the victim had orally copulated him.
At trial the victim again identified appellant as one of the four persons who had been sitting on the wall and who later joined in the assault. Although she could not recall which specific sexual act or acts appellant had forced her to perform, she recalled he was an active participant and had helped to restrain her. On cross-examination the victim conceded she was not "really able" to recognize appellant at trial and could not remember his specific actions upon arriving at the crime scene, but she thought him to be one of the four who had been sitting on the wall and who had arrived later.
The defense did not dispute that the victim had orally copulated appellant. The defense instead contended appellant had neither forced the victim to engage in sexual acts nor was aware that others had forced sexual activity on her. Alvaran, a defense witness who had already pled guilty to raping the victim, testified he was one of the men who had initially contacted her. He further testified that after sharing liquor and marijuana with her, he and a companion offered her drugs in exchange for sex, to which she agreed. She voluntarily accompanied them to the campsite without protest or struggle. Alvaran testified there were four other men at the campsite when they arrived, one of them being appellant, who was asleep. Alvaran claimed the victim voluntarily had sex with him and his companion and raised no resistance or protest until three other men subsequently arrived. Alvaran claimed the only protest was the victim's saying "Can't you let me go," but that the victim never screamed, fought or was forcibly restrained while having sex with the group.
Alvaran claimed appellant was asleep during the only period when the victim resisted having sex with the group; that the victim had orally copulated appellant without refusing, fighting, screaming or being physically restrained; and that appellant had done nothing to force the victim to orally copulate him. Alvaran claimed the knife was only displayed after all of the sexual activity had ceased and the group had already departed the campsite.
Appellant was charged with four counts of rape in concert (§§ 261, 264.1), one count of penetration with a foreign object in concert (§§ 289, 264.1), and five counts of oral copulation in concert (§ 288a(d)). Appellant denied the allegations and unsuccessfully moved before trial to suppress certain evidence claimed to be products of an illegal search and seizure. Following a bench trial the court made a true finding as to one count of forcible oral copulation in concert (§ 288a(d)) and dismissed the remaining counts for lack of sufficient evidence. The court thereafter adjudged appellant a ward of the court, granted probation and ordered him turned over to the juvenile authorities in Mexico. This appeal followed.
Appellant unsuccessfully moved to suppress the hospital identification and the subsequent inculpatory statements made by appellant while in custody. He based his motion on the alleged unreasonably intrusive conduct of the police: both in the form of their detention of him in Balboa Park and then in terms of his transportation to the hospital where he was identified by the victim.
Appellant raises the same complaints on appeal. Because the reasonableness of an investigative detention and/or transportation is intimately tied to the facts and circumstances of each case (see, e.g., People v. Loewen (1983) 35 Cal.3d 117, 123, 196...
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