People v. Bermudez

• Citation: 203 Cal.Rptr. 728,157 Cal.App.3d 619
• Decision Date: 22 June 1984
• Docket Number: Cr. F002455
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesus Portillo BERMUDEZ, Defendant and Appellant.
• Court: California Court of Appeals

Page 728

203 Cal.Rptr. 728

157 Cal.App.3d 619

The PEOPLE, Plaintiff and Respondent, v. Jesus Portillo BERMUDEZ, Defendant and Appellant.

Cr. F002455.

Court of Appeal, Fifth District, California.

June 22, 1984.

[157 Cal.App.3d 621] Bruce S. Wiener, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Joel Carey and Esteban Hernandez, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

WOOLPERT, Acting Presiding Justice.

Late at night a young woman awakes and feeds her six-week-old infant. In doing so she appears nude for some time in a well lit bedroom which has no window drapes or shades. During this time she becomes aware of defendant "peeping" at her from several vantage points. She finishes feeding the baby, turns out the light and pretends to sleep. Having no telephone and no other adult within hearing distance, she does not try to get help.

Defendant, having alighted from his car to urinate in the alley, has seen her and becomes sexually aroused. He tries to enter her house but, he says, not to rape her. In one version of his actions, he tries to open the exterior doors, but fails. Soon he tries again and is able to open the front door. He transforms the fact the door is unlocked into an invitation of some kind. In a different version, he enters through a window. When questioned later he is sure he had sex in mind while watching the naked victim, but when confronted with a question concerning the nature of his intent as he made his entry into the house, his memory fades: "I'm blank on that."

Defendant approaches the victim. He is unsure what she said when he reached her bed. Perhaps her first words were: "Do anything you want, just don't hurt the baby." The victim testifies she said: "Take anything you want, just don't hurt the baby." Although the consumption of beer clouded defendant's memory as to the exact version, he thought she was inviting him to share her bed and body, which he proceeded to do. After intercourse the victim made a false statement that her husband would return from work soon. Unimpressed, defendant engaged again in sexual intercourse.

Except for the foregoing, no intelligible words had been exchanged. Then, responding to his persistent demands to be orally copulated, the victim agreed to do so if she could first move the baby from her side where the infant had been all this time. Unable to satisfy his demand for oral copulation, she submitted to further sexual intercourse. He remembers no discussion concerning oral copulation.

As he was pulling his pants back on, two prescription drug bottles fell out and the victim secretly secured them. After defendant left, the victim thought she heard his car start. She ran to her mother's house on the front part of the lot and then into the street where she hailed a cab. The driver contacted her mother and husband; they notified the police, who traced defendant by the prescription bottles.

We are challenged to upset the guilty verdict because the testimony of the victim and defendant reveals there never was one word of threat; also there was no protest until the oral copulation demands. Simply put, defendant urges that it is not rape when a Peeping Tom gains access to a house late at night and without introduction, has intercourse with the woman previously seen unclothed in her bedroom feeding a baby, the whole affair being "consensual" because the woman only pleads with him not to hurt the baby.

We decline defendant's invitation. The law has had good reason to require proof of physical force or of clear threats of bodily injury in the sometimes ambiguous factual circumstances arising between acquaintances whose intentions can be misinterpreted. However, in cases such as this one in which a woman is sexually victimized by a stranger who seeks sexual satisfaction in an atmosphere of potential aggression, assertions of implied invitation and disclaimer of having used physical force fail to impress jurors and courts alike. Naivete may excuse boorishness, but a criminal invasion of sexual privacy does not become a non-rape merely because the victim is too fearful or hesitant to say something to the effect that "I guess you know I don't want you to do this." With a bit more elaboration we so hold.

Defendant was charged with rape (Pen.Code, § 261, subd. (2)), ¹ oral copulation (§ 288a, subd. (c)), and burglary (§ 459). It was further alleged that the burglary was of an inhabited house in the nighttime.

After a two-day jury trial, defendant was found guilty of burglary and rape but, as the jury was unable to agree on the oral copulation charge, a mistrial was declared as to that count. The court sentenced defendant to the middle term of six years for the rape and the middle term of four years for the burglary, the burglary term being stayed pursuant to section 654.

I.

SUFFICIENT EVIDENCE SUPPORTED THE RAPE CONVICTION.

Defendant contends the evidence failed to support the finding that his sexual acts upon the victim were accomplished by "force or fear of immediate bodily injury on the person or another." ²

Section 261 was amended in 1980 to reflect the point of view that it is often risky for the victim to resist the sexual assault. Subdivision (2) had read: "Where a person resists, but the person's resistance is overcome by force or violence." Subdivision (3) had provided this alternate to resistance: "Where a person is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution...." The amendments modified the force and violence aspects of rape and made resistance of significance only when the victim's will power is overcome by mind changing substances for which the accused is responsible. (People v. Salazar (1983) 144 Cal.App.3d 799, 806-808, 193 Cal.Rptr. 1.)

In reviewing the sufficiency of the evidence we note this pertinent Salazar comment: " 'By shifting the focus from the quality of physical resistance to the overbearing of the victim's will, the Legislature reaffirmed its earlier value choice that a woman could be outraged although not physically beaten. Pen.Code § 263.' " (Id., at p. 807, 193 Cal.Rptr. 1.) Section 263 provides: "The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape...."

We are well aware that section 261.6, enacted in 1982, became effective after the events in this case. It provides: "In prosecutions under Section 261, 286, 288a, or 289, in which consent is at issue, 'consent' shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction."

Though not applying section 261.6 to this case, we find nothing novel in its emphasis on positively displayed willingness to join in the sexual act rather than mere submissiveness. The law has outgrown the resistance concept; a person demanding sexual favors can no longer rely on a position of strength which draws no physical or verbal protest.

The evidence in this case would suffice under the views expressed in Salazar in which the victims and defendants had been "dating friends" before the criminal acts took place. We contrast our facts in which the victim was a stranger to defendant and was assaulted in her own home after his uninvited entry. Whether an objective or subjective standard is used, the male in this setting has an overwhelming hurdle to overcome if he seeks to argue consent.

The facts discussed in People v. La Salle (1980) 103 Cal.App.3d 139, 162 Cal.Rptr. 816, took place during the time when resistance was required unless prevented by threats of "great and immediate bodily harm." As in our case, the victim was raped by a stranger. The defendant persuaded the victim's small daughter to enter his car, and, because of his "tone of voice" and the mother's concern for her child, she accompanied him and submitted to intercourse. He too claimed there were no express or implied threats and she did not resist his advances. Obviously, in each case the child was used as a device to get to the mother. In La Salle the defendant said: "If you want her, you have to get in the car with me." In our case the victim and the defendant both agree that she said: "... just don't hurt the baby."

Subdivision (2) of section 261 makes it clear that rape may be accomplished by acts which cause fear of immediate bodily injury to the victim "or another." No longer does the section use the word "threat" in connection with the appearance of imminent harm to the victim or someone close to the victim. Only in subdivision (6) of the section is "threat" a factor, and then it applies to threats of retaliation in the future. In any event, for years appellate courts have affirmed jury verdicts which depended upon implied threat.

In deciding whether the assault was "consummated by force or fear," we look to the circumstances of the case. (People v. Hunt (1977) 72 Cal.App.3d 190, 194, 139 Cal.Rptr. 675.) Even prior to the 1980 amendments, when the language of "threats of great...