People v. Montero

• Citation: 229 Cal.Rptr. 750,185 Cal.App.3d 415
• Court: California Court of Appeals
• Decision Date: 10 September 1986
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ralph MONTERO, Defendant and Appellant. D003482.

Page 750

229 Cal.Rptr. 750

185 Cal.App.3d 415

The PEOPLE, Plaintiff and Respondent, v. Ralph MONTERO, Defendant and Appellant.

D003482.

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

Sept. 10, 1986.

Review Denied Nov. 25, 1986.

Handy Horiye, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., M. Howard Wayne and Jesus Rodriguez, Deputy Attys. Gen., for plaintiff and respondent.

BUTLER, Associate Justice.

Ralph Montero was convicted by a jury of five counts of forcible rape (PEN.CODE, § 261¹, subd. (2)), five counts of unlawful sexual intercourse ( § 261.5) and one count of committing a lewd and lascivious act upon Marianna De La H., a child under 14 years of age ( § 288, subd. (b)). The jury hung on a forcible rape charge involving Marianna's sister Christina. The court declared a mistrial as to that count and dismissed it on the prosecution's motion in the interests of justice ( § 1385). The judge sentenced Montero to a 30-year prison term.

Montero appeals, contending there was insufficient evidence to support the forcible rape convictions, improper multiple convictions, instructional error, and sentencing error. We affirm.

I

At trial, Marianna testified to five separate acts of sexual abuse by Montero. The first act occurred in 1981 when she was 13 years old and lived in Brawley, California, with her mother, brother, two sisters and Montero. At that time, Marianna shared an upstairs bedroom with her two sisters.

Early in the morning of December 20, 1981, Montero came into the bedroom and shook Marianna awake. He told her to take off her clothes but she refused. Montero then removed her clothing as well as his own. Marianna called out to her sister, who was asleep in the same room. Montero put his penis inside her vagina which hurt her. She was afraid of Montero.

The next act occurred in the early morning of October 15, 1982. Montero again entered Marianna's bedroom, woke her up and told her to take off her clothes. Marianna said she was too tired. Montero told her she always had excuses and proceeded to undress her. She told him not to take her clothes off and called out to her sister. Montero called Marianna dirty names and finished undressing her. He took his clothes off and put his penis inside her vagina. She felt pain and was afraid of Montero.

The last three incidents happened in the latter part of September 1984. On September 18, 1984, and again on September 19, 1984, Marianna was alone in her bedroom when Montero shook her awake and began taking off her clothes. On the 18th, she cried when he put his penis inside her vagina and told him she did not want him to do that. On the 19th, she called out to her mother. Montero called Marianna names as he took her clothes off and put his penis inside her vagina. She did not want him doing that. On September 21, 1984, the same sequence of events happened: Montero awakened Marianna, started taking off her clothes, argued with her about what he was doing, took off his own clothes and placed his penis inside her vagina. This time he said she was like her sisters and that she should not have come back. Each of these acts hurt Marianna and she testified she was afraid of Montero during each incident.

On cross-examination, Marianna testified on December 20, 1981, Montero held her down when she tried to get up and squeezed her hand when she tried to scratch him. She called out to her sister three times. She reiterated her direct testimony concerning the other dates and explicitly stated she struggled and called out to her mother during the September 21, 1984 incident. Asked if Montero put his penis at the entrance of her vagina rather than in her vagina during each alleged act, Marianna replied, "I don't know." When further pressed for an answer, Marianna said "at the entrance."

Dr. Patricia Shreves then testified she performed a pelvic examination of Marianna September 28, 1984. Shreves observed Marianna's hymen was intact but the area around her urethra, inside the labia area of the vagina, was swollen and bruised. Shreves opined something had been done to the area on a constant basis, indicating it had been traumatized over a period of time.

II

Montero contends there was insufficient evidence to support the forcible rape convictions. Specifically, he claims there was no proof of fear of immediate and unlawful bodily injury in any of the five separate incidents and no showing of physical force substantially different than that necessary to accomplish the acts themselves. ²

When the sufficiency of the evidence is challenged, we must review the entire record in the light most favorable to the judgment so as to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577, 162 Cal.Rptr. 431, 606 P.2d 738.) Substantial evidence must support each essential element of an offense. (Id. at p. 577, 162 Cal.Rptr. 431, 606 P.2d 738.) A judgment of conviction will not be set aside for insufficiency of the evidence to support the jury's verdict unless it is clearly shown there is no basis on which the evidence can support the conclusion of the jury. (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.) The credibility of witnesses and the weight to be accorded to the evidence are matters to be determined by the trier of fact. (Evid.Code, § 312; People v. Thornton (1974) 11 Cal.3d 738, 754, 114 Cal.Rptr. 467, 523 P.2d 267, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.)

As amended in 1980, section 261, subdivision (2) makes criminal any act of sexual intercourse accomplished with a person not the spouse of the perpetrator where it is accomplished against that person's will by means of force or fear of immediate and unlawful bodily injury on the person or another. The amended section deletes earlier provisions relating to the element of resistance connected with force, violence or threats (see People v. Salazar (1983) 144 Cal.App.3d 799, 807, 193 Cal.Rptr. 1), and makes it clear rape may be committed by acts causing only fear of immediate bodily injury to the victim or another and no longer requires threats of imminent harm (People v. Bermudez (1984) 157 Cal.App.3d 619, 624, 203 Cal.Rptr. 728).

Under earlier law, forcible rape required an accused employ that degree of force necessary under the circumstances to overcome the victim's resistance. (People v. Wheeler (1977) 71 Cal.App.3d 902, 907, 139 Cal.Rptr. 737.) However, the "victim need only make such resistance as [would] reasonably manifest ... refusal to consent to the act." (People v. Hunt (1977) 72 Cal.App.3d 190, 194, 139 Cal.Rptr. 675.) And in deciding whether a defendant's acts upon a victim were accomplished by force or fear, verbal threats were not crucial to conviction--they could be inferred from conduct or implied from the circumstances. (People v. La Salle (1980) 103 Cal.App.3d 139, 148, 162 Cal.Rptr. 816.)

"Although resistance is no longer the touchstone of the element of force, the reviewing court still looks to the circumstances of the case, including the presence of verbal or nonverbal threats, or the kind of force that might reasonably induce fear in the mind of the victim, to ascertain sufficiency of the evidence of a conviction under section 261, subdivision (2). [Citations.] Additionally, the [victim's] conduct must be measured against the degree of force manifested or in light of whether her fears were genuine and reasonably grounded.... [T]he trier of fact 'should be permitted to measure consent by weighing both the acts of the alleged attacker and the response of the alleged victim, rather than being required to focus on one or the other.' [Citation.]" (People v. Barnes (1986) 42 Cal.3d 284, 304, 228 Cal.Rptr. 228, 721 P.2d 110.)

"Because the fundamental wrong [in rape] is the violation of a [victim's] will and sexuality, ... 'force' plays merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been taken against a victim's will." (People v. Cicero (1984) 157 Cal.App.3d 465, 475, 204 Cal.Rptr. 582.)

Moreover, since 1980, only fear of immediate bodily injury need be shown. Fear generally has two common meanings: (1) "A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension" (Amer. Heritage Dict. (1981) p. 480) and (2) "Extreme reverence or awe, as toward a supreme power" (ibid ).

Here, the victim was a child of 13, 14 and 16 at the time of the respective acts. Montero lived in the victim's house with her mother, apparently in a type of stepfather relationship with Marianna. Each act took place in the nighttime with Montero shaking Marianna awake, taking off her clothes after she refused to do so, and admittedly performing the sexual acts without her consent. Marianna testified she was afraid of Montero, cried out for help, and was hurt by the acts he performed. Expert testimony confirmed Marianna suffered physical bruising and swelling and that her vaginal area had been traumatized over a period of time.

While the record could have been more explicit on Marianna's fear and the amount of force involved, in light of all the circumstances present, i.e., Marianna's tender age, the position of apparent authority held by Montero, the ongoing and continuous exploitation of a resisting and defenseless Marianna awakened in the middle of the night, we find substantial evidence of force and fear from which the jury could find beyond a reasonable doubt Marianna was in fear of immediate and unlawful bodily injury and Montero committed the acts with force. (See People v. Jones (1984) 155 Cal.App.3d 153, 173, 202 Cal.Rptr. 162; People v. Reyes (1984) 153 Cal.App.3d 803, 810-811, 200 Cal.Rptr. 651.)

III

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