People v. Pahl

• Decision Date: 28 January 1991
• Docket Number: No. A047992,A047992
• Citation: 277 Cal.Rptr. 656,226 Cal.App.3d 1651
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Gregory PAHL, Defendant and Appellant.

Page 656

277 Cal.Rptr. 656

226 Cal.App.3d 1651

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Gregory PAHL, Defendant and Appellant.

No. A047992.

Court of Appeal, First District, Division 3, California.

Jan. 28, 1991.

Rehearing Denied Feb. 21, 1991.

Review Denied April 17, 1991.

Certified for Partial Publication ^*

Gary V. Crooks, under appointment by the Court of Appeal, Sonoma, for defendant and appellant.

Daniel E. Lungren, John K. Van de Kamp, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Aileen Bunney, Supervising Deputy Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

CHIN, Associate Justice.

Lawrence Pahl was convicted of sexual battery (Pen.Code, § 243.4, subd. (a)); ¹ he was sentenced to six years' imprisonment. He contends that the evidence was insufficient to support the verdict and that instructional and sentencing error occurred. We find no error and affirm.

I. The Facts

Appellant introduced himself to the victim, Kelly E., as she was walking to work in Ukiah on a Monday morning. Kelly was surprised and puzzled that appellant had her telephone number, which he said he got from a friend. She accepted his offer of a ride to work.

Appellant appeared at Kelly's apartment two days later, at about 5:30 or 6:00 p.m., on Wednesday evening, August 31, 1988; he invited her to go out for a coke. She asked him to come back in an hour so she could get ready, and he agreed. Kelly took a shower and got dressed; she wore underpants, a bra, Levi's 501's, a button-up blouse, and high-top tennis shoes. Kelly was happy to have a date and called an elderly friend to share the news.

Appellant arrived, and Kelly got in the passenger side of his pickup truck. Appellant stopped at a store and bought a four-pack of wine coolers. He gave Kelly one and asked her if she wanted to talk and drive; she agreed. He drank fruit juice, while she drank a wine cooler.

After driving a while appellant put his hand on Kelly's hand, which was on her leg, and asked when was the last time she had been naked with a man. Kelly said it was none of his business and that she wanted to go back to town, but appellant insisted they were driving to Boonville. He said it was only 14 miles and that they would be home in no time. Appellant told Kelly that there was a flame inside her that needed to be put out and that only he could do it. He talked to her about his previous relationships and marriages. He asked Kelly once or twice how her other boyfriends were in bed and "how big their dicks were." She said it was none of his business.

Appellant repeatedly said that he was glad their paths met because their hearts belonged to one another and Kelly had a flame inside, and she should let herself be free. Kelly kept saying that she wanted to go home. Appellant kept putting his hand on Kelly's leg. She told him she was scared, and he said, "There's nothing to be scared of. I'm not gonna hurt you. I'm not that type of person."

When they got to Boonville, appellant stopped the truck at a delicatessen. Kelly said she already had dinner; appellant went in, leaving her in the truck for about 20 minutes. Kelly waited for appellant because she believed he would take her back to her apartment. Also, even though he left the keys, she was afraid he might be watching her and she "didn't know if he had a gun or something. [She] was scared." He returned and said that she must not have been too afraid, since she did not take his truck.

Appellant drove on the highway again, and cautioned Kelly not to fall in love with him. She kept saying that she wanted to go home. Then he turned up a logging road. She was very afraid. Appellant stopped and turned off the engine but left the lights on. He told Kelly to scoot over to him, which she did because of fear that he would hurt her. He began biting, nibbling, and sucking her neck. Appellant removed Kelly's blouse and bra, urging her to "be free." She tried to stop him from removing her clothing but he was "heavier" and "stronger." She started to cry and said she wanted to go home. She cried from this point on. Appellant bit her on the breasts, hurting her. She told him to stop; he talked about "being free."

Appellant told Kelly to lean back. She refused, and he pushed her back and got on top of her. He undid her pants and pulled her underpants down. Kelly managed to prevent appellant from removing her shoes, which meant that he could not completely remove her Levi's. He tried to separate her legs, but she was able to keep them together. Appellant orally copulated Kelly for about 10 minutes. Then he wanted to have sexual intercourse. She told him no and fought him off by pushing him away. He stuck his fingers in her vagina for about 10 minutes. Appellant asked Kelly if she wanted to "do a sixty-nine." She declined, and he said, "We'll do that next time."

Kelly continued to cry and say that she wanted to go home. Appellant told her that if she would turn over and let him bite her on her back they could go home. She complied. He bit her on the lower back. Then appellant let her get dressed. She noticed that his pants were down; he got dressed.

Appellant told Kelly that the gates to the road would be closed and that they would have to spend the night. She stated that she would get out and walk. But the gates were open. Appellant asked if Kelly's roommates got "high"; she said yes. He rolled a marijuana cigarette, drove Kelly home, went into her apartment with her, shared the joint with her and her roommates, and left after about 30 minutes.

Kelly told her roommates what had happened, but they did not respond, apparently not realizing the significance of what she was saying. The next day at work she broke down, and her boss called the sheriff.

Defense. Appellant testified that Kelly gave him her name and address the day he gave her a ride to work, that he bought wine coolers at her request on the night of the incident, and that he asked and received permission to hold her hand. Appellant testified that as they were driving Kelly never said she wanted to go home and that she was not shy when he asked her personal questions such as when was the last time she had her clothes off with a man. They talked about sex easily, and Kelly indicated that she liked oral foreplay performed on her.

Appellant testified that when they started "making out or necking," Kelly was receptive. She did not say no or cry. They were hugging and kissing each other. He opened her blouse and moved her bra so he could massage, kiss, and nibble her breasts. At one point she said, "Not so hard," and he stopped nibbling. He started rubbing her crotch through her pants. She seemed to be enjoying all of this.

When appellant started to unbutton Kelly's pants, she said, "no," in what he thought was a playful way. He said, "yes," in a similar tone, thinking he could change her mind. She cooperated by lifting her weight off the seat so he could pull her pants down. He then orally copulated her. He inserted a finger in her vagina as he orally copulated her. Appellant intended all of these acts as foreplay to intercourse. Kelly pushed appellant's hand away. Their eyes met, and she began sobbing. He stopped what he was doing, hugged her, kissed her, talked to her and lay on top of her. He spoke gently to her about the "flame that grew from her tips of her fingers ... and could burn all the way through her and make her feel loved...." Meanwhile he was rubbing her vaginal area with his thumb.

Kelly stopped crying. Appellant continued to speak to her, asking her if someone had been mean to her in the past. He asked whether she wanted to make love, and she said, no, that she did not want to go any further, and that she thought they should go back. Appellant asked if he could rub her back first. She rolled over and he rubbed and kissed her back, but she seemed tense, so he stopped.

When she turned back over, appellant tried to hug her, but she would not hug him and said she thought they should go back. As they drove back, they talked more, but appellant felt apprehensive because there had been an "intimate moment ... and then all of a sudden, it was gone and I didn't understand how that happened." She invited him in, and they shared a marijuana cigarette with her roommates.

Appellant denied keeping Kelly with him on the side road thinking that she did not want to be there with him. He testified that he did not force her to do anything.

II. Discussion

A. Sufficiency of Evidence

Appellant contends that there was insufficient evidence to support his sexual battery conviction. He relies on a theory of impermissibly inconsistent verdicts, suggesting that because the jury acquitted him of felony and misdemeanor false imprisonment, the jury must have found that no unlawful restraint occurred during the evening; therefore, it was inconsistent and improper for the jury to convict him of sexual battery by unlawful restraint. We disagree.

The question of the validity of inconsistent verdicts usually arises when a jury renders two verdicts on two different counts which are contradictory. (6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Judgment and Attack in Trial Court, § 3044, p. 3765.) Understandably, in such cases defendants, like appellant here, take the position that the acquittal is the legally correct verdict while the conviction is not. This argument has been universally rejected because inconsistent verdicts are probably the result of compromise in the jury room or of an extension of leniency or mercy to the defendant. (E.g., Dunn v. United States (1932) 284 U.S. 390, 393-394, 52 S.Ct. 189, 190-191, 76 L.Ed. 356.) In other words, if the conviction is supported by substantial evidence, it is valid because the defendant "had the benefit of the jury's compassion, rather than suffering a burden because of its passion...."...