People v. Hollis, B049199

• Decision Date: 15 November 1991
• Docket Number: No. B049199,B049199
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thurston Sonrea HOLLIS, Defendant and Appellant.

Page 524

1 Cal.Rptr.2d 524

235 Cal.App.3d 1521

The PEOPLE, Plaintiff and Respondent, v. Thurston Sonrea HOLLIS, Defendant and Appellant.

No. B049199.

Court of Appeal, Second District, Division 4, California.

Nov. 15, 1991.

Review Granted Feb. 13, 1992.

Publication Ordered May 7, 1992.

Review Dismissed and cause Remanded to the Court of Appeal June 18, 1992.

Jonathan P. Milberg, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., and Zaven V. Sinanian, Deputy Atty. Gen., for plaintiff and respondent.

ARLEIGH M. WOODS, Presiding Justice.

Appellant Thurston Sonrea Hollis was sentenced to 12 years in prison after a jury convicted him of violating Penal Code sections 245, subdivision (a)(1) (assault great bodily injury with a deadly weapon), 288a, subdivision (c) (forcible oral copulation), 261, subdivision (2) (forcible rape), and 289 (genital penetration by foreign object). He contends his conviction must be reversed because the trial court instructed the jury in the words of CALJIC No. 10.60 as follows: "It is not essential to a conviction of a charge of rape that the testimony of the witness with whom sexual relations is alleged to have been committed be corroborated by other evidence." Alternatively, he contends the abstract of judgment should be corrected to reflect the fact that the sentence on assault with a deadly weapon was stayed.

The evidence showed that appellant met his victim on July 6, 1989, near a residence where the victim intended to purchase drugs. Appellant offered the victim a ride. When she refused, appellant put a screwdriver to her side and forced her into his car. Appellant handcuffed the victim, flashed a badge, told her she was under arrest, and blindfolded her with a pillowcase. He then drove away, hitting her on the head with a screwdriver when she tried to see where they were going. He stopped the car, dragged her into a house, and threatened to kill her if she did not agree to have sex with 15 men. He then beat her across the buttocks with a police baton, ordered her to crawl around the room on her hands and knees and call him daddy, hit her, forced her to drink malt liquor and a half-pint of gin, forced her to orally copulate him, raped her, and forced her to insert the baton into her vagina. The victim finally managed to escape by breaking a window and climbing out. She ran to a nearby house for help.

Mr. Armelin, the resident of the house, testified that at approximately 1:30 a.m., he saw the victim standing on the porch, screaming and hollering. She was wearing only a shirt. Her face was bruised and bloody, there were marks on her legs, and she had a handcuff on her wrist. Mr. Armelin called the police. The victim was taken to Harbor UCLA hospital where she was observed to have lacerations on her left eye, red and swollen wrists, abrasions on her hands and left thigh, and welts on her buttocks which appeared to have been made with a stick or a straight object. A pelvic examination revealed no sperm or signs of vaginal trauma.

After the police responded to Mr. Armelin's house, they went to appellant's apartment and arrested him. A search of appellant's car produced a screwdriver, a shirt belonging to the victim, and a pillowcase stained with blood. Inside appellant's apartment, the police found a baton, a pair of high heeled shoes, and the victim's dress. The police observed that most of the glass was broken out of a 4 foot by 6 foot window in appellant's apartment. At the time of his arrest, appellant had a wallet with a badge on it in his rear pocket.

I

Appellant challenges CALJIC No. 10.60 on three grounds. First, he contends it is an improper "pinpoint" instruction which "focuses the jury's attention on the uncorroborated testimony of the victim in a rape case and improperly suggests that such testimony is entitled to special attention." ¹ Second, he contends it "improperly suggests to the jury that the victim should be believed and that the defendant should be disbelieved...." Finally, he contends it is "no longer needed."

The latter contention finds support in the CALJIC committee's "use note" and "comments" to CALJIC No. 10.60. The use note states: "If this instruction is given, CALJIC 2.27 ² should be given sua sponte. [Citations.]" The comment adds: "There is a dispute in the case law as to whether CALJIC 10.60 ... need be given at all if CALJIC 2.27 is given. [Citations.]"

A review of the case law on this issue demonstrates that the dispute to which the comment refers arises primarily from one court, Division One of the Fourth Appellate District. In 1981, that court rejected the contention that giving both CALJIC No. 10.60 ³ and No. 2.27 had the effect of undue emphasis on the fact that no corroboration was needed. The court explained: "Permitting a jury to operate under the misconception corroboration is required would put the value of the victim's testimony on a level below that of the defendant's testimony, credibility aside, and that is not the law." (People v. McIntyre (1981) 115 Cal.App.3d 899, 907, 176 Cal.Rptr. 3.) In 1984, the same court reiterated the holding of People v. McIntyre in People v. Jamison (1984) 150 Cal.App.3d 1167, 1173, 198 Cal.Rptr. 407.

In February of 1986, Division One of the Fourth District held, in People v. Pringle (1986) 177 Cal.App.3d 785, 790, 223 Cal.Rptr. 214, that it was error to give CALJIC No. 10.60 in the absence of CALJIC No. 2.27. The Pringle court noted that the issue presented was different from that addressed in People v. McIntyre, supra, 115 Cal.App.3d 899, 176 Cal.Rptr. 3, and People v. Jamison, supra, 150 Cal.App.3d 1167, 198 Cal.Rptr. 407.

Seven months later, the same court, in People v. Adams (1986) 186 Cal.App.3d 75, 230 Cal.Rptr. 588, reaffirmed that the failure to give CALJIC No. 2.27 was error which was compounded by giving CALJIC No. 10.60. (People v. Adams, supra, at p. 79, 230 Cal.Rptr. 588.) The Adams court went further, however, and, disagreeing with its own opinions in People v. McIntyre, supra, 115 Cal.App.3d 899, 176 Cal.Rptr. 3, and People v. Jamison, supra, 150 Cal.App.3d 1167, 198 Cal.Rptr. 407, concluded that the better practice was to eliminate CALJIC No. 10.60 entirely when CALJIC No. 2.27 was given. (People v. Adams, supra, at p. 79, 230 Cal.Rptr. 588.) The court explained: "There are only a few crimes for which a conviction cannot be obtained on the sole testimony of a single witness. In these cases ... jurors are instructed on the need for corroboration. We are satisfied even when the case turns on a credibility contest between the victim and the defendant, CALJIC No. 2.27 informs the jury the victim's testimony, if believed, is enough to prove the crime." (People v. Adams, supra, at p. 80, 230 Cal.Rptr. 588.)

In People v. Blassingill (1988) 199 Cal.App.3d 1413, 1421-1422, 245 Cal.Rptr. 599, the Fifth District Court of Appeal discussed the conflicting case law on the issue and then disregarded it with the observation: "Interesting as this debate may be, we must note that none of the four cases discussed above has considered the import of the decision of the California Supreme Court in People v. Akey (1912) 163 Cal. 54[, 55, 124 P. 718,] where the court unequivocally approved the trial court's instruction of the jury in the following language: ' "The court further instructs the jury that it is not essential to a conviction in this case that the testimony of the prosecutrix ... should be corroborated by other evidence. It is sufficient if you believe beyond a reasonable doubt from all the evidence in the case that the crime charged has in fact been committed as alleged." ' [Citation.]" Relying primarily upon People v. Akey (1912) 163 Cal. 54, 124 P. 718, the Blassingill court concluded that it was not error to instruct the jury with CALJIC No. 10.60.

It should be noted that in Blassingill the jury was also instructed with CALJIC No. 2.27, CALJIC No. 2.20 (credibility of witnesses), and CALJIC No. 2.22 (weighing conflicting testimony). Thus, although the Blassingill court abstained from expressly choosing sides in the debate, it aligned itself with People v. McIntyre, supra, 115 Cal.App.3d 899, 176 Cal.Rptr. 3, and People v. Jamison, supra, 150 Cal.App.3d 1167, 198 Cal.Rptr. 407.

With this case law as our backdrop we turn to the issue presented in the case before us. We are keenly aware that the issue is merely one aspect of the larger problem of balancing a criminal defendant's right to a fair trial with a rape victim's right to testify against her assailant without being subjected to unnecessarily intrusive or suggestive means of testing her credibility. Fortunately, victims now have greater protection from such harassment than they had in the past. (See, e.g., People v. Steele (1989) 210 Cal.App.3d 67, 75, 257 Cal.Rptr. 687; People v. Casas (1986) 181 Cal.App.3d 889, 897, 226 Cal.Rptr. 285.) Unfortunately, however, the stigma inherent in criminal sexual conduct still touches the victim as well as the accused.

We conclude that CALJIC No....