People v. Barnes

• Decision Date: 31 July 1986
• Citation: 42 Cal.3d 284,228 Cal.Rptr. 228,721 P.2d 110
• Court: California Supreme Court
• Parties: , 721 P.2d 110, 55 USLW 2165 The PEOPLE, Plaintiff and Respondent, v. Joaquin BARNES, Defendant and Appellant. Crim. 24586.

Page 228

228 Cal.Rptr. 228

42 Cal.3d 284, 721 P.2d 110, 55 USLW 2165

The PEOPLE, Plaintiff and Respondent, v. Joaquin BARNES, Defendant and Appellant.

Crim. 24586.

Supreme Court of California,

In Bank.

July 31, 1986.

As Modified on Denial of Rehearing Sept. 18, 1986.

Phil Brooks, Deputy State Public Defender, San Francisco, for defendant and appellant.

Stan M. Helfman, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Christopher N. Heard as omicus curiae on behalf of plaintiff and respondent.

BIRD, Chief Justice.

Was the Court of Appeal correct in relying on a rape complainant's lack of "measurable resistance" to overturn convictions of rape and false imprisonment as unsupported by sufficient evidence?

I.

Since the sufficiency of evidence to support the convictions is in issue, it is necessary to present a somewhat detailed statement of the factual circumstances of this case.

Marsha M. had known appellant about four years as of May of 1982. They were neighbors and acquaintances. She had been to his house briefly once before to buy some marijuana. A couple of weeks before the present incident, they had drunk wine together at her house.

Around 10 p.m. on May 27, 1982, appellant called Marsha and invited her over for some drinks to celebrate his parents' having come into a sum of money. Marsha was undecided and told appellant to call back or she would call him.

Over the next two hours, appellant called twice to see what Marsha had decided to do. She finally told him she would come over and that she wanted to buy a little marijuana from him. She asked him to meet her outside his house.

Marsha arrived at appellant's house around 1 a.m. Appellant was waiting for her outside the front gate. It was cold. Appellant suggested they go inside and smoke some marijuana. At first Marsha refused. She told appellant she had to get up early and wanted to buy the marijuana and go home. However, after a couple of minutes, appellant persuaded her to come inside.

Marsha followed appellant through the house to a room off the garage. ¹ At first, they carried on a conversation which Marsha described as "normal chatter." Appellant provided some marijuana and they both smoked it. Appellant offered some cocaine, but she refused. She kept telling appellant she wanted to hurry up and leave.

After 10 or 15 minutes, appellant began to hug Marsha. She pushed him away and told him to stop. She did not take him seriously as he was "just coming on."

Appellant continued his advances despite Marsha's insistence that she only wanted to buy marijuana and leave. When appellant asked her why she was in such a hurry, she reiterated she just wanted him to give her the marijuana and let her go since she had to get up early in the morning. Appellant told her he did not want her to leave. Marsha finally said good-bye and walked out of the room. Until this point, things between them had been "decent and friendly."

As Marsha approached the front gate, appellant, who was behind her and appeared angry, stated, "No, you don't go leaving. You don't just jump up and leave my goddamn house." He began "ranting and raving" and arguing with her. He wanted to know why she was "trying to leave." He told her that she made him feel as if she had stolen something; that she was acting like he was "a rapist or something." Marsha characterized appellant's behavior as "psychotic."

When she reached the front gate, Marsha did not try to open it because she did not know how. She asked appellant to open it, but he just stood looking at her. This behavior made her nervous. When she asked appellant what was wrong, he "reared back" as if he were going to hit her. ²

They argued at the gate for about 20 minutes. ³ Marsha told appellant she did not understand what he was arguing with her about and that he seemed to be trying to find a reason to be angry with her. She told him, "I came to your house to get some grass. Now, I want to leave. You won't let me leave."

Appellant replied that he was going to let her leave but needed to put his shoes on first. He then returned to the room and Marsha followed. She said she returned to the room because she felt she could not get out the front gate by herself.

As she was following appellant, the door leading to the stairs closed behind her, prompting him to shout that she was "slamming the goddamn door" in his house. After they entered the room, appellant closed the door behind them. He was "fussing" at Marsha, talking and "carrying on" the whole time he was putting on his shoes. He stated, "I don't know what the hell you bitches think you want to do." Marsha was confused and concerned about what was happening and about what appellant was going to do. Several times, appellant stopped talking and looked at her "funny."

Appellant then stood up and began to "lecture" Marsha. He was angry. He began to threaten her, telling her he was a man and displaying the muscles in his arms. He grabbed her by her sweater collar and told her he could pick her up with one hand and throw her out. Flexing his muscles, he stated, "You see this? I am a man. You respect me like a man. I am no kid."

Appellant also told Marsha of his past sexual exploits. He stated: "I had bitches do anything I want. I have had bitches suck me ... I have had them do that. I can make you do anything I want. You understand me?" Occasionally, appellant would stop talking, "rear back," look at her and tell her how much she upset him.

At one point appellant said, "You're so used to see [sic ] the good side of me. Now you get to see the bad." Then he became quiet and stared at her. This statement again made Marsha believe he was going to hit her.

Marsha asked appellant whether he wanted to hit her. She told him she could not fight him. Appellant responded by lecturing her. Marsha began to move toward the door. When appellant noticed her, he said, "I don't know why you're standing by the door. What are you looking at the door for?" Marsha thought appellant pushed the door closed a little tighter.

Appellant continued talking but then suddenly turned and started hugging Marsha "affectionately." He told her he did not mean to "fuss" at her. By now, Marsha felt she was in the room with a "psychotic person" who had again changed personalities. Approximately 40 minutes had elapsed since they entered the room a second time. It was at this juncture that Marsha began to "play along" and feign compliance with appellant's desires.

In an effort to get out of appellant's house, Marsha suggested they go to her house where they could be alone. Appellant told her not to worry about his parents coming home. He continued to hug and talk to her. After a few minutes, appellant stated, "I have to have some of this right now," and told Marsha to remove her clothes. Marsha refused. Appellant reacted by telling her she was going to upset him and by making some type of gesture. In response, Marsha removed her clothes. An act of sexual intercourse ensued which lasted about one hour and included the exchange of kisses. Afterward, both appellant and Marsha fell asleep.

Marsha testified she engaged in sexual intercourse with appellant because she felt if she refused, he would become physically violent. She based this assessment on appellant's actions and words, including his statements that she was about to "see the bad side" of him and that he could throw her out if he wanted.

Marsha awoke around 4 a.m. She cajoled appellant into walking her to the front gate and opening it so she could leave. She returned home and immediately called Kaiser Hospital to request an examination. She was eventually referred to the sexual trauma center and examined for venereal disease.

Marsha did not report the incident to the police that day because she was confused and felt "it was my word against his." She had been told at the sexual trauma center that she had three days within which to make a report. After discussing the incident with a coworker, she reported it to the police the following day.

Appellant telephoned Marsha the morning of the incident and a couple of days later. On both occasions she hung up on him.

The defense was consent. Appellant's testimony was substantially similar to Marsha's regarding the events prior to her arrival at his house. However, the versions differed markedly as to the subsequent events.

Appellant testified that the first time they were in the room together he gave Marsha some marijuana and refused payment for it. They smoked some marijuana. Appellant told Marsha he had "feelings for her," he was sexually attracted to her and did not want her to leave so quickly. According to appellant, they did not argue over anything. He was surprised that she was in such a rush to leave.

At the front gate, they continued to talk. He again expressed feelings of sexual attraction for her. According to appellant, it was Marsha who first returned to the room. There, she told him she would stay a little while longer. Then, without being asked, she started removing her clothes. Consensual sexual intercourse ensued during which Marsha returned appellant's hugs and kisses. Appellant testified he did not threaten Marsha in any way, make gestures toward her, display his muscles or force her to stay. He confirmed the fact that he had telephoned Marsha twice afterwards. However, he testified they talked briefly each time.

Appellant was convicted after a jury trial of one count each of rape and false imprisonment (Pen.Code, §§ 261, subd. (2), 236) ⁴ as to Marsha M. ⁵ The Court of Appeal reversed these convictions as unsupported by substantial evidence. This court granted the Attorney General's petition for review in order to clarify the requirements for conviction under section 261, subdivision (2) as amended by the Legislature in 1980.

II.

Until its amendment in 1980, former section 261, subdivisions 2 and 3 defined rape as an act of sexual intercourse under...