People v. Hunt

• Decision Date: 20 July 1977
• Docket Number: Cr. 29006,C
• Citation: 72 Cal.App.3d 190,139 Cal.Rptr. 675
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Clifford Alan HUNT, Defendant and Appellant (two cases). r. 29177.

Page 675

139 Cal.Rptr. 675

72 Cal.App.3d 190

PEOPLE of the State of California, Plaintiff and Respondent, v. Clifford Alan HUNT, Defendant and Appellant (two cases).

Cr. 29006, Cr. 29177.

Court of Appeal, Second District, Division 2, California.

July 20, 1977.

As Modified on Denial of Rehearing Aug. 5, 1977.

Hearing Denied Sept. 15, 1977.

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, and Martin Stein, Deputy State Public Defender, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., and William V. Ballough, Deputy Atty. Gen., for plaintiff and respondent.

COMPTON, Associate Justice.

In this consolidated matter we consider appeals from two judgments of conviction entered against defendant in the Superior Court of Los Angeles County.

In Case No. A. 134319 defendant was charged with a count of forcible rape and a count of forcible oral copulation. A jury found defendant guilty of the rape and not guilty of the forcible oral copulation. Sentence was to state prison. In Case No. A 127654 defendant was serving a term of probation following a conviction in 1974 for, among other things, forcible oral copulation. Because of the conviction in No. A 134319, the trial court revoked probation in No. A 127654 and ordered into execution a previously suspended state prison sentence. The latter sentence was ordered to be served consecutively to the sentence in Case No. A 134319.

We reverse the judgment in Case No. A 134319 for reasons which will be set forth Infra. Since it appears that the revocation of probation and imposition of sentence in Case No. A 127654 was based on the conviction in Case No. A 134319 we reversed the judgment in Case No. A 127654 and remand that matter to the trial court for reconsideration.

In as much as the jury found that defendant did not compel the victim in this latest case to participate in an act of oral copulation by force, or threat of great bodily harm, we focus on the charge of rape in which the People alleged that defendant accomplished an act of sexual intercourse by the use of 'Threats of great and immediate bodily harm, accompanied by apparent power of execution,' to prevent the victim from resisting.

The prevailing rule in California is that threats may be inferred from conduct (People v. Flores, 62 Cal.App.2d 700, 145 P.2d 318; People v. Winters, 163 Cal.App.2d 619, 329 P.2d 743), and that the victim need only make such resistance as will reasonably manifest her refusal to consent to the act. (People v. Peckham, 232 Cal.App.2d 163, 42 Cal.Rptr. 673; People v. Newlan, 173 Cal.App.2d 579, 343 P.2d 618.) While generally the woman has the power to determine for herself the extent to which she feels she can safely resist (People v. Stewart, 109 Cal.App.2d 334, 240 P.2d 704), her conduct must always be measured against the degree of force manifested and each case must be resolved on all of the circumstances present. (People v. Burnette, 39 Cal.App.2d 215, 102 P.2d 799; People v. Cook, 10 Cal.App.2d 511, 52 P.2d 538.)

We think it important to point out that the form of rape with which defendant was charged and convicted differs from that form of rape which is committed by the actual use of physical force to subdue the female. (Pen.Code, § 261, subd. 2.) The form of rape with which we are here dealing can be committed though the victim offers no physical resistance whatsoever, when that failure to resist is the result of threats of immediate and Great bodily harm. (Pen.Code, § 261, subd. 3; People v. Frye, 117 Cal.App.2d 101, 255 P.2d 105; People v. Cassandras, 83 Cal.App.2d 272, 188 P.2d 546; People v. Tollack, 105 Cal.App.2d 169, 233 P.2d 121.)

In that form of rape condemned by Penal Code section 261, subdivision 2, a defendant, in order to commit the offense, need only intend to and use that degree of force necessary to overcome the victim's resistance. On the other hand where the defendant's conduct is confined to the use of threats, Penal Code section 261, subdivision 3, is explicit in requiring a threat of immediate Great bodily harm.

With these principles in mind we approach the analysis of the evidence in this case. Applying the usual rule on appeal, we set forth the facts in the light most favorable to support the judgment.

The victim, Chris, an adult female, was employed as a waitress in a restaurant in the San Fernando Valley. On the day of the occurrence she was summoned to work only to find that she was not needed. In returning to her home, her car having been left at a service station for maintenance and service, she began hitchhiking at the Balboa on-ramp to the Ventura Freeway. She got one ride part of the way and subsequently was picked up by defendant at the DeSoto on-ramp.

Defendant was driving a camper truck. When Chris got into the truck defendant indicated he was going to Thousand Oaks which was also Chris' destination. She noticed defendant had three photos of nudewomen affixed to the dashboard. Defendant told her his name was John and that he was a 'porno' photographer.

Defendant attempted a couple of times to hold Chris' hand. Then he took her hand and placed it on the area of his private parts. He put his arm around her and pulled her toward him and down. She testified that he held her so tightly so that she was unable to raise up or move away. After a short period of time he let her up when she called his attention to a passing school bus.

She became frightened and began to cry when the defendant prepared to exit the freeway at a point some eight to ten miles from her destination at Thousand Oaks. Believing that the defendant intended to rape and kill her, she pleaded with him to not take her off into the hills and suggested as a ruse that he take her home or to a motel. The defendant relented momentarily to the extent of returning to the freeway but left the freeway at the next exit, Kanan Road. Chris became more alarmed and attempted to distract the defendant from his purpose by conversation and intoning a chant which she had learned as a member of a meditative group, the Nicherin Shoshu. She wrote out the chant and gave it to the defendant hoping to attract his interest to it and away from her.

When a highway patrol car passed she attempted to attract attention by blowing the horn on the camper but was prevented from doing so by the defendant who became angry. He stated 'What did you do that for?' She then began to believe that rape was inevitable and initiated a discussion of sex in order to attract his interest in her for the future and thus insure her survival.

Defendant turned off Kanan Road and stopped on a dirt road which dead-ended in an uninhabited area. Chris and the defendant alighted from the camper. She believed that she had no opportunity to escape because she saw no signs of people or buildings. She testified that her fear was in part generated by the fact that a friend of hers had been raped and murdered in the same area under similar circumstances.

They entered the rear of the camper and when Chris asked if she could sit by the door the defendant responded by pulling her to the front of the camper and locking the rear door.

Chris, after undressing, offered to orally copulate the defendant. According to Chris this offer was to avoid having the defendant on top of her, which might in turn put him in position to strangle her. She thought that in this way she might satisfy his sexual appetite.

Chris orally copulated the defendant. The defendant also completed an act of sexual intercourse with her. Sometime later the defendant requested that she orally copulate him again. This time the defendant took a polaroid picture of Chris performing the act.

After completion of these sexual acts defendant suggested that they have another date to which Chris feigned agreement. She wrote her phone number on the card which she had used to write out the words for her chant and gave the card to the defendant.

Chris was the first out of the camper and as she started to walk down the road the defendant followed in the camper offering to take her to where her car was being repaired. He said he did not want her raped by anybody. She agreed and the defendant drove her to the garage.

At the garage she called the chapter chief of the Nicherin Shoshu and informed her that she had been raped. She also told two people at the car repair shop of the rape and informed her brother on her arrival home. The latter informed the police. She was taken to a hospital where a vaginal smear indicated the presence of semen. Bruises were found on her legs which bruises had not been there before the incident with the defendant. Chris was unable to recall just when or how she sustained the bruises.

Three days later while Chris was being interviewed by a sheriff's deputy, the defendant called for a date. At the suggestion of the deputy Chris arranged a meeting with defendant. When defendant appeared at the designated place he was apprehened in his camper. Torn pieces of the card on which Chris had written her phone number were later retrieved by a deputy sheriff from the police vehicle in which the defendant was placed after the arrest.

On first being questioned by the police the defendant denied being on the Ventura Freeway on the date of the alleged rape. He disavowed any knowledge of the note with the phone number and claimed the police must have planted it in the police car.

Defendant testified in his own behalf at the trial. He stated that he had given Chris a ride on the Ventura Freeway. He related that Chris had discussed chanting with him and when he asked whether he could achieve sexual relations with her by chanting she replied smilingly 'That's not the goal of the organization, but go ahead and chant for it.' According to defendant Chris made no objection to his taking her hand...