People v. Albizures
| Decision Date | 28 January 2016 |
| Docket Number | A141488 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ELBRICK PASAYES ALBIZURES, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Napa County Super. Ct. No. CR165693)
Elbrick Pasayes Albizures was charged and convicted of one count of rape by force or fear (Pen. Code, § 261, subd. (a)(2))1 and one count of sexual penetration by force or fear (§ 289, subd. (a)(1)(A)). On appeal, Albizures argues: (1) substantial evidence does not support the jury's implicit finding that he acted with the requisite intent; (2) the trial court abused its discretion in excluding evidence of the victim's prior conviction; (3) the trial court erred in giving a "biased" consciousness of guilt jury instruction; (4) the trial court erred in failing to instruct the jury that, in order to convict, it must find circumstantial evidence irreconcilable with innocence; and (5) cumulative error. There is no merit in Albizures's arguments. Accordingly, we affirm.
Because sufficiency of evidence to support the verdict is at issue, we present a somewhat detailed summary of the evidence presented at trial. It is undisputed that on April 13, 2013, Jane Doe and Albizures engaged in sexual acts during a massage at theVillagio Inn and Spa (Villagio), in Napa Valley. The People's theory was that Doe did not consent and that Albizures accomplished the acts by force or fear. Albizures, on the other hand, maintained Doe consented.
In 2007, Doe was diagnosed with multiple sclerosis. As a result, she suffers body pain and sometimes walks with a cane. Doe, who was 5 feet 9 inches tall, stated she had been receiving massages at the Villagio approximately two to four times a year for eight years. She usually requested Albizures because his massages were gentle enough to not cause her pain, he allowed her to sleep during a massage, and he had never been inappropriate. She had told him about her illness.
It was customary for Doe to undress before Albizures entered the room and thereafter be draped with only a sheet. During the massage, she was either lying face down with her head in a cradle or on her back with a small towel under her head and an eye mask over her eyes. Generally the massage treatment relaxed her, and she often went to sleep. Once, in 2011, Albizures kissed her on the forehead after a massage.2 She told him, "don't do that shit again," but later felt she had overreacted.
In April 2013, Doe was in a relationship, but the relationship was not necessarily exclusive. Doe's boyfriend usually arranged and paid for her spa visits because he knew the Villagio's general manager. On the occasion of April 13, 2013, however, Doe's cousin arranged for herself, Doe, and another girlfriend to celebrate Doe's birthday at the Villagio. A full day was planned. Doe's boyfriend and the three women were to have breakfast at the Villagio. Then, while Doe's boyfriend attended a funeral, each of the women would have a massage, followed by an hour of extra relaxation at the spa, wine tasting, and then dinner.
On April 13, 2013, Doe did not take any of her prescribed pain medicine because she knew she would be having wine. As planned, the four had breakfast, with mimosas, at the Villagio. Doe had "a couple of sips, but not the whole glass." The group then wentto a "champagne sabering" hosted by an acquaintance of Doe's boyfriend. Doe was again given a glass of champagne, but did not finish it. Afterwards, Doe went to the spa where she greeted Albizures.3
Albizures and Doe went up the stairs to the spa suite where Doe was to receive her massage and the women were to later have their relaxation time. Albizures left Doe alone to undress. She got under the sheet on the massage table and Albizures returned. The massage began with Doe laying on her stomach. She went to sleep. At some point, Doe turned over onto her back. Albizures put a mask over her eyes and massaged her arm and leg on one side of her body, then came around to the other side. She felt relaxed and went back to sleep.
Albizures was massaging her right leg when, suddenly, Doe felt Albizures insert a finger or fingers into her vagina. She felt Albizures's other hand on her wrist. Doe put her own hand between her legs, pushed Albizures's hand away, and said, "What the fuck?" When Doe pushed Albizures's hand away, she felt tension in his wrist. Afraid that he was making a fist and might strike her, she let go.4 She "froze." She explained: She further explained:
Next, Albizures picked up Doe's right hand and placed it on his uncovered penis. She quickly removed her hand.5 The room got quiet and she thought Albizures was leaving. Instead, Albizures pulled off the sheet covering Doe, got on the massage table,and penetrated her with his penis. She did not remove her eye coverings, as she still felt unable to take action. She felt the weight of his body on her chest. She pushed down on Albizures's shoulders with her hands, and grunted "get out."6 Albizures continued thrusting and, eventually, ejaculated and got off the table. Doe sat up and saw semen on her stomach, which Albizures wiped off. Albizures left the room, after saying, "[Y]ou're five minutes over your session, no hard feelings."
Doe opened the suite door and saw her cousin and friend in a nearby lounge area; she motioned for them to come into the suite. Doe immediately said, "something bad happened" or "some things weren't right." Doe testified, "[they] just really just kind of dismissed what I said and just went out to the Jacuzzi tub." Instead of going to the tub with the other two, Doe took several showers. Approximately 30 minutes later, Doe said she had been raped. Doe's cousin and friend tried to find out exactly what had happened, but Doe was unresponsive. Doe asked her cousin not to mention the incident to Doe's boyfriend because he had a business affiliation with the Villagio and because she did not want to ruin the day. When the group left the spa, Doe's cousin paid the $400 bill without protest.
Based on Doe's unusual response to a text message, Doe's boyfriend assumed something was "not right." When the group went wine tasting, Doe did not participate. Doe's boyfriend asked what was wrong and Doe said, "[Albizures] was so inappropriate, I don't know where to start." An hour after arriving home, Doe called her boyfriend and told him Albizures raped her. She indicated she would call the Sheriff's office, but Doe's boyfriend made a call, after which she received a call from the Sheriff's office.
Detective Chris Pacheco was assigned to investigate Doe's allegations. Doe's cousin told Pacheco that pictures had been taken throughout the day on Doe's phone. When Pacheco requested the photos, Doe e-mailed 12 photos to him, only two of which had been taken after the spa session. Doe testified she did not delete any photos. Hercousin did. In the past, Doe had shared her experiences at the Villagio, and photos taken there, on social networks. On April 18, 2013, Pacheco learned Doe had deactivated her Facebook account sometime after his first meeting with her.
On April 14 and 15, detectives arranged several "pretext calls" between Doe and Albizures, recordings of which were played for the jury. During the first call, Doe expressed her concerns that Albizures get tested for genital herpes. Albizures seemed to know what she was talking about. They agreed "this will never happen again." Doe asked why it happened, and Albizures said that he could not explain it. He thought she wanted it. When asked why he thought that, he said it was a hard question, and they ended the call because he was with his family. They agreed she would call another time.
During the second call, on April 15, Doe said she did not "ask for it" and expressed her anger. He replied that he was sorry "for what [he] did to [her]" and again said he could not explain why it had happened. "It just went to another, you know, another level . . . ." Albizures also mentioned that he had been told not to come to work that day and said more than once that he was "freaking out." Doe accused him of raping her and hung up after he said, "I'm sorry?" Doe called back immediately. Albizures said he did not want her to be mad at him, but did not affirmatively dispute her characterization and apologized again. Doe asked if she had ever flirted with him. The call ended after he answered that he thought she had been a little flirtatious the previous year.
On April 15, Detective Nicol Dudley interviewed Albizures. A video recording of the interview was played for the jury. It was mostly a preview of Albizures's testimony at trial, although in the interview he initially stated that Doe had grabbed his hand and placed it on her vagina, had unzipped his fly, and that she reached for his penis. Albizures later acknowledged embellishing his story with these details.
Albizures testified in his own defense. He had been married for five years and had never before been unfaithful. He had two children, aged two and six. He worked as a massage therapist at the Villagio for 10 years. He knew he could lose his license or job ifhe had even consensual sex with a...
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