People v. Jones

• Court: California Court of Appeals
• Citation: 202 Cal.Rptr. 162,155 Cal.App.3d 153
• Decision Date: 01 May 1984
• Parties: The PEOPLE, Plaintiff and Respondent, v. Curly JONES, Defendant and Appellant. Crim. 6112/F911.

Page 162

202 Cal.Rptr. 162

155 Cal.App.3d 153

The PEOPLE, Plaintiff and Respondent, v. Curly JONES, Defendant and Appellant.

Crim. 6112/F911.

Court of Appeal, Fifth District, California.

May 1, 1984.

Certified for Partial Publication. ¹ As Modified on Denial of Rehearing May 23, 1984.

Hearing Denied July 26, 1984.

[155 Cal.App.3d 162] Henrikson & Gee and Eric L. Henrikson, Oakland, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Charles P. Just and Nancy Sweet, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GALLAGHER, Associate Justice. ^*

A jury found appellant guilty of rape by threat of great bodily injury as charged in counts one, three, five, nine, twelve, thirteen, fourteen, sixteen and eighteen. The jury found appellant guilty of the lesser included offense of unlawful sexual intercourse in violation of section 261.5 in counts seven, eight and nineteen. Appellant was acquitted on charges of lewd and lascivious acts with a child as charged in counts two, four, fifteen and seventeen. Counts six, ten and eleven had been dismissed and were not submitted to the jury for consideration.

Appellant was sentenced to a term in state prison of 57 years, 4 months. Appellant appeals the judgment of conviction.

STATEMENT OF THE FACTS

Although appellant never actually married Gwen W., he had been living with her for approximately nine years. Also living in the home were Gwen's children: Rachel, Lisa, Lucienda, Glenaia, Charles and Curtis. Tracy, Angela and Robert were friends of Gwen's children.

Rachel, Lisa, Lucienda, Charles, Tracy, Angela and Robert each testified at trial regarding numerous and seemingly continuous acts of sexual abuse perpetrated against these children by the appellant occurring over the course of a nine-year period. Due to the length of the record, the specific testimony of the children will be discussed in detail as necessary in the subsequent analysis of the individual counts which have been challenged by this appeal.

Appellant had, for a period of time, owned a van containing two chairs and a couch. According to the testimony of the minor victims, it was this van, parked in various locations, in which the sexual acts commonly occurred.

The Defense

Appellant was 48 years old at the time of trial. He had worked for 15 years as a heavy equipment operator for Crippin Demolition. He denied ever having sexual intercourse with any of the young women who testified against him. He claimed that none of the charges made by the young women were true. He felt the girls wanted him out of the way because he disciplined them. He acknowledged that he used "switches" pulled from a tree in the yard when disciplining the children. He also felt the charges could be part of a game. Further, appellant testified that although he purchased a van in 1979, it was repossessed in October of 1980. He did not have a van from October 1980 to the time of his arrest, February 9, 1981.

Appellant offered several defense witnesses to impeach the credibility of the victims and to testify to appellant's good character. A defense psychiatrist, Dr. Trevor Glenn, who had examined appellant, was permitted to testify that in his opinion appellant had no mental disorder or defect which might predispose or lead him to commit sex offenses against young girls.

The defense primarily concentrated on discrediting the victims' testimony by showing repeated inconsistencies of details in their testimony, and explaining some or all of the charges by way of fabrication, vindictiveness, and rejection of appellant's efforts at discipline.

DISCUSSION

I. THE EVIDENCE IS SUFFICIENT TO SUSTAIN THE CONVICTIONS OF COUNTS ONE, THREE, FIVE, SEVEN, NINE, THIRTEEN, AND NINETEEN. ²

Prior to the 1980 amendment, section 261, subdivision (3) defined rape as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator ... (3) Where a person is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution...."

In order to prove the commission of the crime of rape, each of the following elements must be proved:

1. That a person engaged in an act of intercourse with a female,

2. That the female was not his wife,

3. That she did not consent to such act of intercourse, and

4. That she submitted to such act because of a threat of great and immediate bodily harm. (CALJIC No. 10.01 (1979 rev.).)

In asserting that the evidence is insufficient on the enumerated counts, appellant proposes the court must resolve the issue in light of the entire record quoting from People v. Johnson (1980) 26 Cal.3d 557, 576-578, 162 Cal.Rptr. 431, 606 P.2d 738.

Appellant's position would require the court's viewing the record as a whole in order to facilitate a determination that when the inconsistencies in the victims' testimony brought out on cross-examination are considered together with the impeachment of their credibility by defense witnesses, the facts supporting the convictions become insubstantial.

The California Supreme Court has consistently affirmed the appropriate standard of review to be applied by an appellate court when a challenge is made to the sufficiency of the evidence in a criminal case. In People v. Samuel (1981) 29 Cal.3d 489, 174 Cal.Rptr. 684, 629 P.2d 485, the Supreme Court stated:

"Our power to weigh the evidence is of course limited by due deference to the trier of fact, and we must therefore view the record in the light most favorable to the verdict. [Citations omitted.] 'But the jury's discretion is not absolute,' particularly in this context. [Citation omitted.] The verdict must be supported by substantial evidence --that is, evidence ' "reasonable in nature, credible, and of solid value; it must actually be 'substantial' proof of the essentials from which the law requires in a particular case." ' " [Citations omitted.] (Id., at p. 505, 174 Cal.Rptr. 684, 629 P.2d 485.)

In Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, the United States Supreme Court "announced a new, constitutionally mandated rule for review of the sufficiency of the evidence supporting a state criminal conviction challenged in a federal habeas corpus proceeding." (People v. Johnson, supra, 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) The California Supreme Court took the opportunity in People v. Johnson, supra, 26 Cal.3d 557, 162 Cal.Rptr. 431, 606 P.2d 738 to restate the California standard to demonstrate that it complies with federal constitutional requirements as announced in Jackson v. Virginia.

In People v. Johnson, supra, 26 Cal.3d 557, 162 Cal.Rptr. 431, 606 P.2d 738, having initially stated that: "Evidence, to be 'substantial' must be 'of ponderable legal significance ... reasonable in nature, credible, and of solid value.' " (id., at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738.) the court went on to state:

"In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citations omitted.] The court does not, however, limit its review to the evidence favorable to the respondent. As People v. Bassett, [1968] 69 Cal.2d 122 [70 Cal.Rptr. 193, 443 P.2d 777], explained, 'our task ... is twofold. First, we must resolve the issue in the light of the whole record --i.e., the entire picture of the defendant put before the jury--and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements ... is substantial; it is not enough for the respondent simply to point to "some" evidence supporting the finding, for "Not every surface conflict of evidence remains substantial in light of other facts." ' (69 Cal.2d at page 138 [70 Cal.Rptr. 193, 443 P.2d 777].) (Fn. omitted.)" (People v. Johnson, supra, 26 Cal.3d 557, 576-577, 162 Cal.Rptr. 431, 606 P.2d 738.) (Emphasis in original.)

In Jackson v. Virginia, supra, 443 U.S. 307, 99 S.Ct. 2781, the United States Supreme Court stated:

"... The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction ... [is] to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." (Id., at p. 318, 99 S.Ct. at 2788.) "... [T]his inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial establish guilt beyond a reasonable doubt.' [Citation omitted.] Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Id., at pp. 318-319, 99 S.Ct. at 2788-2789.)

Although the test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact, and not whether the evidence shows to the reviewing court that guilt was established beyond a reasonable doubt, the evidence must do more than merely raise a strong suspicion of the appellant's guilt. "Evidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility and this is not a sufficient basis for an inference of fact." (People v. Redmond (1969), 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)

With this understanding of the appropriate legal standard to be applied, we can now focus on the individual counts challenged by this appeal.

Lucienda (Count One)

Count one charged appellant with a violation of section 261, subdivision (3), alleging appellant, on or about November 8, 1980, did willfully and unlawfully have and...