People v. Avila, B085319

• Decision Date: 31 May 1995
• Docket Number: No. B085319,B085319
• Citation: 43 Cal.Rptr.2d 853,35 Cal.App.4th 642
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Erick Alejandro AVILA, Defendant and Appellant.

Page 853

43 Cal.Rptr.2d 853

35 Cal.App.4th 642

The PEOPLE, Plaintiff and Respondent, v. Erick Alejandro AVILA, Defendant and Appellant.

No. B085319.

Court of Appeal, Second District, Division 5, California.

May 31, 1995.

As Modified June 29, 1995.

Certified for Partial Publication ^*.

Raymond L. Girard, under appointment by the Court of Appeal, San Luis Obispo, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Susan D. Martynec, Supervising Deputy Atty. Gen., and Sally P. Brajevich, Deputy Atty. Gen., for plaintiff and respondent.

I. INTRODUCTION

TURNER, Presiding Justice.

Defendant, Erick Alejandro Avila, appeals from his conviction of: the forcible rape of Jacqueline M. (Pen.Code, § 261, subd. (a)(2)) ¹; the kidnapping with intent to rape Jacqueline M. (§ 208, subd. (d)) ²; and the forcible rape of a second victim. With respect to the forcible rape of Jacqueline M., the jury found to be true the special allegation defendant kidnapped her for the purpose of committing rape. (§ 667.8, subd. (a).) Defendant contends the trial court should have instructed the jury that movement which substantially increased the risk of harm to the victim over and above that necessarily present in the crime of rape itself was an element of the kidnapping with intent to rape charge. While this appeal was pending, but after defendant filed his opening brief, the California Supreme Court held in People v. Rayford (1994) 9 Cal.4th 1, 22, 36 Cal.Rptr.2d 317, 884 P.2d 1369, that the standard of asportation for section 208, subdivision (d) kidnapping is as follows in pertinent part: "Thus the standard of asportation for section 208(d) kidnapping requires that the movement of the victim be for a distance which is more than that which is merely incidental to the commission or attempted commission of rape ... and that this movement substantially increase the risk of harm to the victim over and above that necessarily present in the commission or attempted commission of these crimes." In the published portion of this opinion, we conclude: Rayford is applicable to the present case; the instruction given in the present case did not comply with Rayford; we apply the harmless error test set forth in Chapman v. California (1967) 386 U.S. 18, 22-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705, to the violation of defendant's federal constitutional jury trial right arising from failure to instruct as to an element of the offense; and the error was "harmless beyond a reasonable doubt." (Id. at p. 24, 87 S.Ct. at p. 828.)

II. SUBSTANTIVE FACTS

A. The People's Case-in-chief

Jacqueline M. worked as the drive-through cashier at a McDonald's restaurant on December 15, 1992. Defendant had been a customer at the drive-through for about a week. Defendant "used to always" ask whether he could give Jacqueline M. a ride home. On December 15, 1992, the victim left work at 3:45 p.m. and walked outside. Defendant was waiting for her in the front parking lot. He asked if he could give her a ride home. Jacqueline M. at first declined, but then accepted the offer of a ride. During the five block ride to her home, Jacqueline M. agreed to go to the park with defendant and his four year old daughter after she changed out of her uniform. Half an hour later defendant picked Jacqueline M. up near her house. His daughter was in the car. However, they soon left defendant's daughter with her mother. Defendant held a black box in his hand which caused a clicking noise and pointed it to lock and unlock the car doors.

Jacqueline M. asked defendant to take her home. He refused. He said he wanted to go to Griffith Park and "race." After that, defendant said, he would take her home. Jacqueline M. said, " 'Okay, just go race there and just take me home.' " Defendant began "racing up" the street, "swerving around cars and just driving crazy." He was asking the victim if she wanted to be his girlfriend. She told him she did not want a boyfriend and to just take her home. Defendant said, " 'If you really want to go home, you get out right now.' " They were in the middle of the street. Jacqueline M. was about to open the door when she heard a "click." She tried to open the door and it was locked. Jacqueline M. said: " 'Why are you doing this? Just let me go out. I'll get out.' " To which defendant replied, " 'If you really want to get out, you get out through the window.' " He pulled over and put the window down. She got up on the seat to get out through the window. However, defendant rolled the window up again. Jacqueline M. said: " 'Just let me out[.] I'll go home. I don't need you to take me home.' " Defendant refused to permit her to leave. Once again, defendant began racing his car towards Griffith Park.

When they reached Griffith Park, defendant stopped and got out to use a restroom. While alone in the car, Jacqueline M. tried to open the door and to roll down the window. She could not do either. When defendant returned, she repeatedly asked him to take her home. He would not. Defendant drove fast up a hill and around curves. The victim began to feel sick. She asked defendant to roll down the window and to take her home. He laughed and called her weak. Defendant rolled the window down one-half of an inch. Defendant stopped the car somewhere in Griffith Park. He would not roll the window down any further. Jacqueline M. tried to unlock the car door but it would not open. Defendant said, " 'Get comfortable because we're spending the night here.' " The victim told him she had to go home, she had to go to work the next day. Defendant opened the sun roof and sat back. He said, " 'I'm not going to take you home until you say you are going to be my girlfriend.' " Jacqueline M. refused. Defendant again said, " 'We are spending the night here.' " The victim protested that she had to go home. " 'Just take me home,' " she said. Defendant continued to refuse to take her home. She testified as follows: "I asked him to take me home and he said he could do whatever he wanted. He said, 'I told you we are going to stay here all night.' " After about an hour, park personnel told defendant to leave the park. They were in a truck. They flashed their lights and said the park was closed, that defendant had to leave. Defendant drove off with Jacqueline M. who thought he was taking her home.

Defendant said he was going to take Jacqueline M. to get something to eat. She told him she wanted to go home. Defendant drove to a Chinese restaurant and parked his car. The victim had no idea where they were. She could not open the car door. Defendant opened her door for her. He asked her for a kiss and she refused. He leaned over and kissed her on the lips. She felt disgusted. As defendant was leaning over her at the passenger door to his car, she tried to slip under his arm and run for a bus across the street. Defendant said: " 'You are not going nowhere. I'm going to take you home but I just want you to eat with me first.' " They walked into the restaurant. Defendant had his hand around her neck in an "arc" and came close to her from behind. Defendant ate. Jacqueline M. had two or three spoonfuls of food. They stayed in the restaurant for 5 or 10 minutes. Defendant called her "chata," a Spanish word meaning "little round nose." Defendant said he would "love to count all the freckles on [her] body." Angrily, she responded: "All the freckles you could ever count are the only ones you could see, the ones on my face." Defendant repeatedly said: " 'No. I know you have more.' " She responded: " 'No. I don't. It is my body. I know what I have.' " He retorted: " 'You have more on your body. I'd love to count them.' " She once again became angry and said: " 'You know what? Just take me home. I don't want to hear none of this.' "

After they left the restaurant, Jacqueline M. was led to the car. Defendant then told her to wait for him while he went to the restroom. At first, she unsuccessfully attempted to get out of the car but the doors were locked. She did not try to open the door while he was gone because she believed defendant was going to take her home. Defendant returned to the car. He said he would take Jacqueline M. home if she told him her bra size. The victim answered the questions. She testified, "I had to tell him because I wanted to go home."

Defendant then drove to a place around the corner from her house, close to where he had picked her up earlier in the day. Jacqueline M. tried to get out of the car but the door was locked. Defendant wanted to know whether she would be his girlfriend. He said he would not let her out until she gave him a hug. He leaned over to hug her and put his left hand on her breast. Jacqueline M. took his hand off. She told him, "You don't have to touch me there.' " Defendant tried to touch her again and she pushed his hands off. Defendant said, " 'It's not like they're going to fall off. Let me touch them." Defendant became angry because the victim would not let him touch her breasts. He said, " 'Well, you are going to spend the night with me.' " Jacqueline M. said, " 'Just let me out of the car.' " Defendant would not unlock the door. He started the car, made a U-turn, and drove off. He told the victim she was going to spend the night at his house with him. Jacqueline M. kept telling him to stop and let her out of the car. She was scared. Defendant drove two or three blocks and parked the car. He parked under a tree next to a high school. There were houses nearby but it was late and no one was around. The victim tried to get out of the car. The doors and windows were locked. Jacqueline M. was terrified. She testified, "He told me since I didn't let him touch me where he wanted to, he would touch me somewhere else." Defendant then violently raped her inside the locked car.

After he released her, Jacqueline M. immediately telephoned the police. The tape recording of...