People v. McElrath

• Decision Date: 02 December 1985
• Citation: 175 Cal.App.3d 178,220 Cal.Rptr. 698
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Roy Derrick McELRATH, Defendant and Appellant. D001809.

Page 698

220 Cal.Rptr. 698

175 Cal.App.3d 178

The PEOPLE, Plaintiff and Respondent, v. Roy Derrick McELRATH, Defendant and Appellant.

D001809.

Court of Appeal, Fourth District, Division 1, California.

Dec. 2, 1985.

Review Denied Feb. 20, 1986. ^*

Christopher Blake, San Diego, under appointment by the Court of Appeal, for defenant and appellant

John K. Van de Kamp, Atty. Gen., Jay M. Bloom and Maxine P. Cutler, Deputy Attys. Gen., for plaintiff and respondent.

LEWIS, Associate Justice.

Roy Derrick McElrath appeals his jury-tried convictions for two counts of forcible rape (PEN.CODE, § 261¹, subd. (2)), forcible sodomy ( § 286, subd. (c)) and forcible oral copulation ( § 288a, subd. (c)). The jury found he inflicted great bodily injury in all the above offenses ( § 12022.8) and McElrath used a deadly weapon during one of the rapes ( § 12022.3, subd. (a)). The jury also convicted McElrath of first degree burglary ( §§ 459-460) and robbery in an inhabited house with his personal use of a deadly weapon ( §§ 211, 213.5, 12022, subd. (b)). The jury convicted McElrath of attempted murder ( §§ 664, 187) and kidnapping ( § 207, subd. (a)) of his victim, all with his personal use of a deadly weapon ( § 12022, subd. (b)). Regarding a separate victim, the jury convicted him of kidnapping and simple assault ( § 240) as a lesser included offense of assault with intent to commit rape or oral copulation. McElrath admitted a violent felony prior conviction ( § 667.5, subd. (a)).

McElrath contends the court improperly considered his motion to substitute appointed counsel and improperly instructed the jury regarding the elements of sodomy. He also contends the following sentencing errors occurreds (1) the court failed to state its reasons for sentencing under section In January 1984, at about 1:30 a.m., McElrath opened Cynthia A.'s dining room window to enter her house. Cynthia, asleep on the living room sofa, awakened and investigated. McElrath told Cynthia, "Let me in. There's been a shooting down the street. Can I use your telephone?" Cynthia was alone in the house with her young son. Her husband was at sea with the Navy. Cynthia refused to let McElrath enter. Instead, she gave him a piece of paper, telling him to write his name and phone number and she would call police for him. McElrath complied, still insisting he needed to enter the house. Worried, Cynthia began telephoning the police. McElrath entered the house and pulled the telephone cord loose. Cynthia ran to the front door, ordered McElrath to leave, and when he refused she began screaming. McElrath struck Cynthia's face with his fist, grabbed her arm and led her to the bedroom. There, McElrath raped, sodomized and orally copulated Cynthia. After about one hour, still bleeding from her facial cuts, Cynthia asked McElrath to let her go into the kitchen for about 15 minutes to apply ice to her wounds. McElrath took her there by the arm and allowed her to apply ice to the cut under her right eye with the result her bleeding was reduced. He then forced her back into the bedroom and raped her again. McElrath had a knife in the bedroom.

                667.6, subdivision (c); 2  (2) the court should not have imposed separate prison terms on all four great bodily injury enhancements;  and (3) his 67-year 8-month prison term is cruel and unusual punishment.  Holding the court failed to instruct on an essential element of sodomy, we reverse McElrath's sodomy conviction and we order the concurrent term on count V (burglary) stayed.  In all other respects, the judgment is affirmed
                

McElrath asked Cynthia to show him where she kept her medicines. Finding a bottle of Tylenol in the medicine cabinet, McElrath forced Cynthia to swallow about 60 Tylenol tablets. McElrath forced her to wash down the Tylenol with hydrogen peroxide. Cynthia hesitated, but complied when McElrath told her to take the pills or he would kill her "right then and there."

McElrath demanded Cynthia's car keys and forced her into her car. As McElrath drove toward the street, Cynthia jumped from the car and ran to a neighbor's house. McElrath abandoned the car and fled.

As a result of McElrath's attack, Cynthia had numerous lacerations involving various facial areas, the side of her right eye, her left forehead, the base of her nose and her left arm. Her face and left thigh were bruised. She required plastic surgery for her cuts and at the time of trial had four facial scars as well as a tender and bruised leg.

There was overwhelming physical evidence of McElrath's involvement. A vaginal swab taken from Cynthia at the hospital showed the presence of seminal fluid. McElrath's thumbprint was found on a knife recovered in Cynthia's bedroom. There was a "high probability" McElrath wrote the note that Cynthia gave to the intruder. The phone number written on this note corresponds to McElrath's mother's phone number.

On January 14, 1983, McElrath accosted April E. as she was walking from work. McElrath grabbed her arm and led her to a vacant house. April E. escaped.

I

Four days before trial, McElrath sought to discharge his appointed attorney and have the court appoint substitute counsel. McElrath wrote a letter to the court stating his attorney had been lying to him and "had the nerve" to continue the trial without consulting him. McElrath also told the court the thumbprint the People contend was taken from the knife was actually taken from his booking prints. After confirming these grounds for the motion on the record, the court denied McElrath's request, stating, "I have no reason to believe that anything this man has alleged in here The right to substitute appointed counsel is a matter of judicial discretion. (People v. Marsden (1970) 2 Cal.3d 118, 123, 84 Cal.Rptr. 156, 465 P.2d 44.) To properly exercise this discretion, the court must "inquire on the record into the bases of defendant's complaints." (People v. Hill (1983) 148 Cal.App.3d 744, 753, 196 Cal.Rptr. 382.) Here, the record shows the court properly inquired into the bases of McElrath's complaints. Marsden requires no more.

                is correct, other than his own imagination."   McElrath contends the court improperly denied his motion without questioning counsel
                

Neither Marsden nor any subsequent Supreme Court decision requires the court to question counsel when a motion to substitute appointed counsel is made. However, appellate decisions require the court to question counsel when an explanation for counsel's attitude or conduct is "necessary" to determine whether counsel can provide adequate representation. (People v. Penrod (1980) 112 Cal.App.3d 738, 747, 169 Cal.Rptr. 533.)

Here, McElrath's complaints about his attorney did not require the court to question counsel. Unlike his counterpart in People v. Groce (1971) 18 Cal.App.3d 292, 95 Cal.Rptr. 688, McElrath did not show his attorney failed to investigate specified potentially exonerating evidence. To the contrary, McElrath made only the generalized statement he had "proof" the fingerprint on the knife was actually taken from his booking prints. The court was entitled to and did disbelieve McElrath's story. Questioning counsel was not "necessary" to determine whether counsel could provide adequate representation. Accordingly, the court properly denied McElrath's motion without questioning his attorney.

II

The court gave the following instruction on sodomy:

"Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. In order to prove the commission of the crime of sodomy, each of the following elements must be proved: (1) That a person committed an act of sodomy with another person; and (2) That such act was against the will of such other person; and (3) That such act was committed by means of force or fear of immediate and unlawful bodily injury to person."

The court did not give, and the parties did not request, CALJIC No. 10.52 which states: "Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. Evidence of emission is not necessary." Under section 287, ³ penetration is an element of sodomy. (People v. Singh (1928) 93 Cal.App. 32, 34, 268 P. 958.) McElrath correctly contends the court's failure to instruct on penetration for sodomy requires this conviction be reversed.

Courts must instruct on general prinicples of law governing the case; a court has a sua sponte duty to instruct on the elements of the offense. (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913; People v. Hill (1983) 141 Cal.App.3d 661, 669, 190 Cal.Rptr. 628.) The failure to instruct on an essential element of the offense is necessarily prejudicial error. (See People v. Garcia (1984) 36 Cal.3d 539, 549-550, 205 Cal.Rptr. 265, 684 P.2d 826; People v. Hill, supra, 141 Cal.App.3d at p. 669, 196 Cal.Rptr. 382.)

Here, the court did not instruct on the essential element of penetration. Instead, the jury was led to believe "contact" was enough. ⁴ Accordingly, McElrath's

conviction of sodomy and the great bodily injury enhancement ( § 12022.8) are reversed.

III

The court sentenced McElrath to a total prison term of 67 years and 8 months comprised as follows:

                Conviction                Base         Enhancement   Total
                -----------------  ------------------  ------------  ---------
                             Rape  Upper - 8 yrs.         5 yrs.      13
                        (count 1)                      ( § 12022.8)
                           Sodomy  Mid - 6 yrs.           5 yrs.      11         (consecutive)
                Oral Cop.          Mid - 6 yrs.           5 yrs.      11         (consecutive)
                             Rape  Upper - 8 yrs.         8 yrs.      16         (consecutive)
                        (count 4)                      ( §§ 12022.3(a)
                                                         12022.8)
                Attempt            Upper - 9 yrs.         1 yr.       10         (consecutive)
                  Murder                               ( § 12022(b))
                Burglary           Mid - 4 yrs.           3 yrs.      7

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