People v. Gayther

• Decision Date: 05 September 1980
• Docket Number: Cr. 10507
• Citation: 110 Cal.App.3d 79,167 Cal.Rptr. 700
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Christopher Allen GAYTHER, Defendant and Appellant.

Page 700

167 Cal.Rptr. 700

110 Cal.App.3d 79

The PEOPLE of the State of California, Plaintiff and Respondent, v. Christopher Allen GAYTHER, Defendant and Appellant.

Cr. 10507.

Court of Appeal, Third District, California.

Sept. 5, 1980.

Hearing Denied Nov. 12, 1980.

Rehearing Denied Oct. 3, 1980.

Quin Denvir, State Public Defender and Stanley Kubochi and Mark E. Cutler, Deputy State Public Defenders, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., and James T. McNally and Diana Beth Constantino, Deputy Attys. Gen., for plaintiff and respondent.

EVANS, Associate Justice.

Following his conviction by jury of two counts of oral copulation (Pen.Code, § 288a) ¹ and rape (Pen.Code, § 261, subd. 3), the court sentenced defendant to state prison for the lower term of three years for the rape and stayed imposition of sentence on the two counts of oral copulation, the stay to become permanent upon completion of the sentence for rape.

Defendant challenges the sufficiency of the evidence to support his convictions and contends that a mandatory prison term prescribed for a conviction of rape by threat is cruel and unusual punishment and a violation of the guarantee of equal protection of the law.

The following rather extensive summary is required by defendant's challenge to the sufficiency of the evidence.

About noon on May 12, 1979, Kimberly H. and her friend Lori B. intended to travel to the Latrobe area on the Consumnes River to sunbathe. Uncertain of the way they stopped at a gas station and were told to take highway 16. While they were stopped at a light on Watt Avenue in Sacramento, a man on a motorcycle, later identified by both Lori and Kimberly as defendant, pulled up on the driver's side of the car and spoke to the girls. He asked where they were going, and they responded they were going to Latrobe and asked for directions to highway 16. Defendant said they were looking for the wrong highway and asked if they wanted to follow him; they agreed. Kimberly accepted defendant's invitation to ride on the back of his motorcycle. The trio stopped at a gas station to get gas for Lori's car, but the pumps were closed; they then stopped at a Raley's market where Lori purchased two six-packs of beer. Kimberly and defendant took two cans on the motorcycle and consumed them on the way. They finally stopped at a bridge on the Consumnes River. Lori, who had been there before, led them about three-fourths of a mile along the river to an open sandy beach. Kimberly, wearing a two-piece bathing suit underneath her shirt and jeans, removed her outer clothing. Lori was wearing shorts, a blouse, and sandals, but she did not have her bathing suit top on. She decided to put the suit top on and told defendant to turn around; he complied. Defendant removed his shoes, socks, and shirt.

Although one or two people had been observed before reaching the beach, there were no other people at the beach site. The three drank beer, talked, and occasionally entered the water to cool off. Kimberly drank two beers, Lori had one or two, and defendant drank a six-pack. Approximately two hours later, they started to leave and put on their outer clothing.

While Lori was some distance away, defendant touched Kimberly on the breast and kissed her. Kimberly pushed him away and "asked him what he thought he was doing." Defendant tried again, and Kimberly pushed him away again. Lori saw the kiss and observed Kimberly mouthing the words, "Let's go now."

The three started back on the path toward the bridge; Kimberly was leading, defendant in the middle, and Lori was at the rear. The dirt path was narrow with brush on both sides. As they left the beach area, defendant reached around Kimberly with both hands and grabbed her breast. She turned around and again asked him what he was doing. He did not reply. As they resumed walking, defendant again touched Kimberly's breast and again she pushed him away. At one point defendant reached between Kimberly's legs from behind and grabbed her "entire genital area." She again pushed him away and tried to hurry on.

About five minutes after leaving the beach, defendant stepped in front of both women and ordered them to take off their tops; when they did not comply, he repeated the order and again they refused and said they thought defendant was their friend. After two or three additional commands, defendant started counting in a very demanding fashion; and when they again questioned his actions, defendant exhibited a buck knife, with a four-inch blade, and held it about six inches to a foot from Kimberly's neck. The girls, afraid for their lives, removed their tops as ordered and then complied with defendant's command to remove the rest of their clothing.

Still holding the knife, defendant forced Kimberly to remove his boots; while on her knees unlacing his knee-high boots, defendant pushed forcefully on her head. At defendant's direction, Lori sat on the path. Standing where he blocked access to the path to the bridge, defendant removed the rest of his clothes and then pulled Kimberly up to his waist and forced her to orally copulate him. When finished, he pushed her away, ordered her to lay on the path, and orally copulated her. Later, out of fear, Kimberly complied with defendant's direction for mutual oral copulation. During this act, Kimberly made eye contact with Lori and mouthed the words, "Get the knife." Lori made a negative response, fearing that she couldn't get to the knife.

Defendant then pushed Kimberly off and told Lori it was her turn. Lori at first refused, but when he ordered, she complied with his demand and commenced mutual oral copulation. At that time Kimberly attempted to put on her bathing suit bottom. Defendant grabbed the clothing and ordered her to remove it. Defendant shoved Lori away and forced Kimberly down on the path on her back and accomplished an act of sexual intercourse. When he finished, everyone started to dress and return to the bridge. Kimberly began a rambling conversation in an effort to insure that she and Lori would be safe to go. Defendant was singing and talking, and at one point said, " 'Kim, Lori, are you okay? I feel like I just raped you.' " After walking for about 20 minutes, they began to see people along the beach.

Lori and Kimberly left the path to get a drink of water, and defendant went on to check his motorcycle. Kimberly approached a man and a woman, told them what had happened, and asked for help getting to the road safely. They walked with the girls to their car where Kimberly noted the license number of defendant's motorcycle.

David Howland, the man who had escorted the women, testified that one of the women said she had just been raped and that they wanted assistance while returning to their car. They also identified defendant as the perpetrator and appeared to be frightened and wanted to leave.

Lori and Kimberly went to the Raley's market which was the first public place available. While they were at the checkstand, defendant walked in the store. The girls hid behind the checkstand and told the checker they had been raped by defendant; she took them to the manager's cage where Lori and Kimberly sat on the floor while the police were called. The checker at Raley's, Debbie Swearingen, testified that both of them seemed very upset, and that Kimberly was so emotionally disturbed she could not talk; Lori appeared to be more in control.

Corporal Doan of the El Dorado County Sheriff's Department testified that upon his arrival at Raley's, Kimberly was shaky, nervous, and crying; Lori was also very nervous and shaky. At the sheriff's office, each of them identified a photograph of defendant and named him as the perpetrator.

As Deputy Ellis was traveling toward Raley's on highway 50, he observed defendant driving a three-wheel motorcycle with a license number matching that given in a radio broadcast. Ellis activated his red lights and siren, approached within 20 feet of the rear of the motorcycle, and observed the driver look in the side mirrors. The motorcycle increased speed from 70 to 90 miles per hour, and Ellis continued to maintain his position 20 feet behind the cycle. After traveling approximately three miles, the motorcycle malfunctioned, spraying water and oil over Ellis' patrol car. The motorcycle then pulled over and stopped. Ellis arrested defendant and took from his belt a buck knife which Kimberly and Lori later identified as the knife used by defendant during the assaults.

Defendant admitted the sexual acts with the two women but testified that they were consensual. He also denied that he had threatened either woman with a knife. He also testified that he had not heard the siren, and that he pulled over and stopped shortly after he saw the flashing red light.

I

The basic principles which govern judicial review of a criminal conviction challenged as lacking evidentiary support require the court to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial, reasonable, and credible evidence, of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578, 162 Cal.Rptr. 431, 606 P.2d 738; Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781 (61 L.Ed.2d 560); People v. Reyes (1974) 12 Cal.3d 486, 496, 116 Cal.Rptr. 217, 526 P.2d 225; People v. Vann (1974) 12 Cal.3d 220, 225, 115 Cal.Rptr. 352, 524 P.2d 824.) This we have done and conclude the challenge to the sufficiency of the evidence is a sham, bordering on the frivolous. However, defendant asks that we concoct a refinement of the substantial evidence test which would require a limited reweighing of the evidence to determine if the jury could have reasonably and fairly resolved conflicts in the evidence or draw inferences in favor of...