People v. Salazar

• Citation: 193 Cal.Rptr. 1,144 Cal.App.3d 799
• Court: California Court of Appeals
• Decision Date: 13 June 1983
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Rafael SALAZAR, Defendant and Appellant. AO16656.

Page 1

193 Cal.Rptr. 1

144 Cal.App.3d 799

PEOPLE of the State of California, Plaintiff and Respondent, v. Rafael SALAZAR, Defendant and Appellant.

AO16656.

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

June 13, 1983.

[144 Cal.App.3d 802] N. Rommel Bondoc, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Herbert F. Wilkinson, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

FEINBERG, Associate Justice.

Rafael Salazar appeals from a judgment entered on a jury verdict finding him guilty of two counts each of assault by means of force likely to produce great bodily injury (Pen.Code, § 245), assault with intent to commit rape (Pen.Code, § 220), and false imprisonment (Pen.Code, § 236), and one count of rape (Pen.Code, § 261, subd. (2)). He contends that: (1) the trial court erred by failing to instruct that resistance by the victim was an element of rape; (2) evidence of prior offenses was erroneously held to be admissible; (3) the trial court erred in its evaluation of the mitigating and aggravating circumstances in the sentence imposed.

I

Viewing the record in the light most favorable to the judgment and verdict, the following pertinent facts appear:

A. S.

A. S. is a member of Mumm's, a private club and restaurant on Powell and Bay in San Francisco. Sometime before April 18, 1981, S. met Salazar at Mumm's through a mutual friend named B. After Mumm's, the three went to Oz, a discotheque at the St. Francis. Afterwards, S. and B. returned to S.'s house and Salazar returned to his own home.

Salazar and S. met again at Mumm's on April 18, 1981. They conversed, drinking wine and talking at length. When Mumm's closed at 2:00 a.m., they decided to continue the conversation at S.'s apartment. They bought a small bottle of wine at a nearby French restaurant and drove to S.'s apartment in separate vehicles. Salazar parked outside and entered S.'s car; she drove into the apartment house garage and escorted Salazar to her apartment on the sixth floor. S. told Salazar that she was tired, and Salazar agreed to leave at S.'s request.

Inside the apartment, Salazar sat down on the sofa and S. went into the bedroom to remove her outer garments and change into a full-length robe. S. then returned to the living room, sat on the floor across a table from Salazar, and poured wine. After about ten minutes of talking and sipping wine, Salazar moved next to S. and tried to kiss her. S. pushed Salazar away and told him to leave. Salazar backed S. toward a bed that was against a wall. Salazar struck S. in the face with his fist and tried to remove her robe. In shock, S. asked Salazar what he was doing; Salazar told her that he was an expert in karate and she had better be quiet and do as she was told.

Salazar pushed S. onto the bed in the living room, removed her robe and underwear, and pushed down his pants. He pinned her to the bed by holding her at the biceps and tried unsuccessfully to make penetration. When S. asked why he was attacking her, Salazar said that he was a "sadomasochist" and would bite her breasts until they bled if she tried to escape.

S. resisted Salazar at least four times, stopping only when she became tired and feared that the struggle would excite Salazar sexually. On one occasion, S. was able to leave the bed, but Salazar caught her and forced her back onto the bed. He tried to kick her in the face, but she turned toward the wall, thereby sustaining a blow on the back of her head. Again, Salazar unsuccessfully tried to achieve penetration. Finally, Salazar got up from the bed and S. tried to run to reach a security call button in the hallway. Salazar pushed her away from the button, causing her to cut her head on the edge of a picture hanging from the wall. S. began to bleed and this scared Salazar.

Salazar dragged S. back into the living room and began to dress. S. picked up her robe and ran out into the hall. Fearing that Salazar would catch her if she waited for the elevator, S. descended the stairs to the third floor where two friends maintained an apartment. S.'s friends were not The following day S. found a tan sock and beige shoe beneath the bed in the living room. She talked to a friend about the incident, but decided not to report the attack because she had seen a movie entitled "A Case of Rape," and feared abuse by the police.

at home, but a woman from the Philippines was staying in the apartment. The woman did not want to open the door for S., who was now dripping blood from the cut on her head. S. returned to her own apartment, from which Salazar had fled. S. tried to telephone [144 Cal.App.3d 804] her friends, but the woman in the apartment again told her they were not there. S. washed her face and put an antibiotic on the cuts on her hairline and lip.

Three days later, S. changed her mind and reported the matter to the police. Officer Daniel Dougherty, the officer to whom she made the report, testified that she had bruises on her eye and arms and a cut on her scalp. S. gave the shoe and sock to the officer.

P. M.

In June of 1981, P. M. was walking to the dentist at Embarcadero Center when Salazar stopped his car in traffic, introduced himself, asked her name, and offered her a ride. M. told Salazar that she was going to the dentist and did not need a ride. Later that day, M. passed by a bar called the Dartmouth Social Club on her way to a dinner engagement. Salazar came out of the bar, again introduced himself, and asked her to dinner. M. declined, but gave him her name and telephone number at work.

Salazar took M. to lunch and seemed "very funny, very nice." Salazar called M. at her office several times after their lunch date, but she was busy and could not go out. Finally, Salazar took her to dinner at Ciao and then to the Stone, a club in North Beach, and to a club in the Transamerica Building. Salazar was pleasant and took M. to her home without incident.

On August 13, 1981, Salazar and M. went on their third date. ¹ They went to dinner at the North Beach Restaurant and then to Mumm's. M. testified that she drank wine with dinner and had a champagne cocktail at Mumm's, but was not under the influence of those beverages. M. accepted Salazar's invitation to go to his apartment because she was interested in moving to a new apartment and because she wanted to see Salazar's television set which had an attachment for his telephone. Salazar drove M. to his apartment on Jackson Street and escorted her inside. Immediately after shutting the door to his apartment, Salazar rushed toward M., tearing off her skirt, blazer and T-shirt. He pushed her toward the bedroom, advising her not to scream because no one would hear her. When she did scream, he seemed surprised and covered her mouth with his hands.

Salazar removed the remainder of M.'s clothing, pushed her onto the bed, undressed himself, and had forcible sexual intercourse with her. When the act was completed, M. got up from the bed and tried to run to the bathroom to escape. Before she could shut the bathroom door, Salazar caught her and pulled her back to the bed. M. broke free and ran toward the living room, but Salazar again caught her and pushed her onto the couch. Finally, M. noticed that when she struggled, Salazar got more excited; she "played dead" and Salazar was unable to maintain an erection. Salazar became upset. He got up and threw M.'s clothes at her. He kept asking her to stay.

Salazar and M. both dressed, left the apartment and took the elevator to the ground floor. Once outside, Salazar went toward his car as if to give M. a ride home. M. flagged down a car, believing that it was a taxi cab. In fact, it was a police car. The policeman asked her if she'd had a fight with her boyfriend. She did not tell him of the rape, but asked him to drive her home, which he did. M. testified that she did not tell the officer of the rape because her sister had been hassled by the police in New York after having been raped.

M. entered her apartment and telephoned her boyfriend, H. B. Because he was not at home, she left a message on his answering machine. B. listened to the tape when he arrived home. He heard crying and sobbings and what sounded like the words, "Help me." B. arrived at M.'s residence at about 4:45 a.m. He found her huddled on the floor in fetal position, crying. She told him that she had been raped.

M. did not go to work for several days, and could not function adequately when she did return. About a week after the incident, at the urging of B., M. contacted a Lt. Simonton in the sex crime detail of the police department but gave no statement. M. finally described the details of the incident to Inspector Rita Grove on August 21, 1981.

Officer Timothy Mayer testified that he encountered P. M. on Jackson Street on August 13, 1981 at about 3:30 a.m. M. flagged down his patrol car and asked for a ride home. Mayer noticed that she was wearing a ripped dress. She told him that she had had a fight and did not want to talk about it. Mayer drove her to her apartment on Pierce Street.

II THE RESISTANCE REQUIREMENT

Appellant contends that the trial court erred by failing to instruct that resistance by the victim is an element of rape. Appellant correctly points out that the rape statute (Pen.Code, § 261, subd. (2)) was amended effective January 1, 1981 to delete the former references to "resistance." (Compare Stats.1979, ch. 994, § 1, p. 3383, with Stats.1980, ch. 587, § 1, p. 1595.) ² Appellant argues, however, that despite the change in the language of the statute, the Legislature did not intend to delete the requirement, reflected in the decisional law, that the victim resist in such a way as to manifest refusal to consent to the act. Because appellant relies on authorities decided before the effective date of the 1980 amendment, we cannot agree...