People v. Guerra

• Decision Date: 21 November 1984
• Docket Number: Cr. 22327
• Citation: 37 Cal.3d 385,208 Cal.Rptr. 162
• Court: California Supreme Court
• Parties: , 690 P.2d 635 The PEOPLE, Plaintiff and Respondent, v. Jon Matthew GUERRA et al., Defendants and Appellants.

Page 162

208 Cal.Rptr. 162

37 Cal.3d 385, 690 P.2d 635

The PEOPLE, Plaintiff and Respondent, v. Jon Matthew GUERRA et al., Defendants and Appellants.

Cr. 22327.

Supreme Court of California In Bank.

Nov. 21, 1984.

Rehearing Denied Jan. 2, 1985.

Michael Ian Garey, Garey & Bonner, Newport Beach, for defendant and appellant Guerra.

Charles V. Weedman, Beverly Hills, for defendant and appellant Murkidjanian.

John W. Carney, Deputy Atty. Gen., San Diego, for plaintiff and respondent.

MOSK, Associate Justice.

In People v. Shirley (1982) 31 Cal.3d 18, 66-67, 181 Cal.Rptr. 243, 641 P.2d 775, we held that the use of hypnosis to restore or improve the memory of a potential witness is not accepted as a reliable procedure by a consensus of the relevant scientific community, and hence the testimony of such a witness is inadmissible as to all matters that were the subject of the hypnotic session. In the present case we address the question, left open in Shirley, id. at p. 67, fn. 53, 181 Cal.Rptr. 243, 641 P.2d 775, whether the rule of that decision applies to witnesses who were hypnotized before its date (Mar. 11, 1982). As will appear, we conclude that the question must be answered in the affirmative--i.e., that Shirley applies to all cases not yet final as of the date it was decided. This conclusion is dictated by settled retroactivity precedents of this court and the United States Supreme Court, and is supported by the consistent practice of our sister states on the point. Applying the Shirley rule to the case at bar, we further conclude that the introduction of such hypnotically induced testimony was prejudicial error on the record before us, and hence compels reversal of the judgments of conviction.

I.

In count I of the information defendants Guerra and Murkidjanian were jointly charged with a single count of forcible rape; in counts II and III each was individually charged with a single count of attempted forcible oral copulation; and as to each count it was further alleged that defendants "voluntarily acted in concert" to commit the offense charged. (Pen.Code, §§ 264.1, 288a, subd. (d).) After two days of testimony the court declared a mistrial as to Murkidjanian because of the introduction of inadmissible and prejudicial hearsay evidence against him. The trial continued as to Guerra only, and the jury convicted him on both counts charged against him and found true the allegation of acting in concert. The court released Guerra on bail. A new trial of the charges against Murkidjanian was then held, and the jury convicted him on both counts and found true the allegation of acting in concert. The court denied motions for new trial by each defendant, sentenced Guerra to the lower term of five years' imprisonment on count I, sentenced Murkidjanian to the middle term of seven years' imprisonment on the same count, and stayed sentence on the other counts pending appeal and service of the sentences on count I, at which time the stay would become permanent. Defendants filed simultaneous notices of appeal, and their appeals have been consolidated.

A.

As in Shirley, the record of the case at bar discloses sharply conflicting stories. ¹ Judy S. testified she was 20 years old and worked as a supermarket cashier while attending state college. On February 25, 1979, she finished her shift at the market at midnight, watched a television program at a fellow worker's house, then returned at 2 a.m. to the apartment she shared with a roommate. Shortly thereafter she went downstairs to an "open house" party being held in another apartment in the same building. There were 30 or 35 people at the party, including Murkidjanian and Guerra; quantities of alcohol were being drunk, and marijuana was being smoked. Judy mingled with the crowd and met a number of guests, but talked mainly to one Tom Logue. After about half an hour, Logue accompanied her back to her apartment and was invited in. Judy sat on the floor and worked on a school poster that she was making. Logue subsequently left for a few moments, instructing her not to lock the door. He reappeared with a beer and a marijuana cigarette, which she declined to share. Ten minutes later he went back to the party a second time, explaining that he would be riding home with two people and needed to see if they were still there. Judy soon heard another knock on her door; she said "Come in," and Murkidjanian and Guerra entered. They said they were looking for Logue in order to give him a ride home; she remembered meeting them at the party, and asked them to have a seat. Guerra sat on the floor and watched her work, while Murkidjanian wandered around the apartment. Guerra left briefly to get a tape from his car. Judy began playing it on her stereo; he turned the volume up, and resumed his seat on the floor. Logue then entered the apartment for a third time, used Judy's bathroom, chatted with everyone present, and departed again.

At this point the stories of the three main participants diverge. Judy testified that after Logue left, Murkidjanian grabbed her under the arms, lifted her to her feet, and started to carry her into her roommate's bedroom. She protested vigorously and screamed for help; he put his hand over her mouth and she bit his thumb. When Murkidjanian began taking her sweater off, she asked if she could go to her bedroom and get a diaphragm so that she would not become pregnant. Holding her by the arm, Murkidjanian walked her back through the living room. Guerra, who had remained seated on the floor during these events, got to his feet and followed them into Judy's bedroom. She testified that she "believed" Guerra closed and locked the door behind them, because Murkidjanian was occupied in holding onto her; she also testified that Guerra helped Murkidjanian take off her upper clothing. Thereafter, Guerra simply leaned against the dresser and watched. While Murkidjanian was undressing himself, Judy removed the rest of her clothes and inserted the diaphragm. Murkidjanian lifted her onto her bed, but she sat up against the headboard and kept her legs tightly closed. Murkidjanian straddled her on his hands and knees and sought to force her thighs apart with his elbows.

Judy testified, however, that Murkidjanian was unable to achieve an erection either then or at any time during the ensuing events. First he tried to reach an erection by masturbating, but was unsuccessful. Next he tried to have Judy orally copulate him for the same purpose: he "scooted up" on the bed and told her to "make him hard, and he wasn't going to leave until [she] did." She continued to resist vigorously, however, and he managed to get his penis only as far as her neck before giving up and resuming his attempt to masturbate.

On the question of penetration, Judy testified that Murkidjanian next inserted his finger into her vagina. The prosecutor then asked, "Did you feel his penis in your vagina?" and Judy answered, "Yes." When asked to describe how it felt, she replied, "round and soft." And when asked specifically whether his penis was hard or flaccid inside her vagina, she answered, "Flaccid." He never ejaculated.

According to Judy, during the encounter Guerra sat on a rocking chair and laughed at Murkidjanian's discomfiture. At one point Judy saw Guerra apparently unzipping his pants, and she asked if he were next; he nodded and then said, "No, I'll pass." Thereafter Guerra came over to the bed, and she took his hand and squeezed it. Judy testified that Guerra told Murkidjanian, "Can't you see the pain she's in? Why don't we just leave?" After a few minutes Murkidjanian gave up and exited from the room. Judy wrapped herself in a blanket; she testified that Guerra locked the door behind Murkidjanian and tried to calm her. He also explained to her, "if he had tried to help pull Murkidjanian off that there would just have been a big fight and that I did the best thing I could." Judy told him she wanted to call her boyfriend, and he offered to dial the number for her. Guerra left while she spoke with her boyfriend; the latter took her to her mother's house, and six or seven hours later she called the police to report the events.

On cross-examination Judy reiterated that throughout the whole episode Murkidjanian never managed to achieve an erection, and that except when he attempted to make her orally copulate him "he spent the rest of the time trying to get an erection" by self-manipulation. She also admitted that while Guerra was comforting her after Murkidjanian left, he hugged her and she hugged him back. ²

Guerra's testimony differed from Judy's in several material respects. He was 21 years old, lived with his family and worked for his father. On the evening of February 24, 1979, he and his friend Murkidjanian met some young men at a drive-in, including Logue, and were invited to the party in Judy's building. While there, they consumed two six-packs of beer between them. At one point in the evening Logue told them "there was some action going on upstairs. If we wanted any part of it." They went up to Judy's apartment, knocked, and entered when she said "Come in." She offered them a seat, and Guerra "plopped" down on the floor and lay on his side. He testified that he left briefly to get a tape, but denied he turned up the volume on the stereo. He described Logue's frequent visits to the apartment, and said that he learned from one of those visits that there was a bathroom in Judy's room. He testified that he "wasn't really paying any attention" when Murkidjanian lifted Judy up from the floor because he was listening to his tape, and he denied hearing her call for help. Shortly after Murkidjanian and Judy went into her bedroom, he entered in order to use the bathroom. He denied helping Murkidjanian take any clothes off Judy or deliberately closing the door; rather, he testified that the bathroom was located behind the bedroom door, and it was necessary to push the latter door partly...