People v. Scott M.

• Decision Date: 30 April 1985
• Citation: 213 Cal.Rptr. 456,167 Cal.App.3d 688
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. SCOTT M., Defendant and Appellant. Crim. F003673.

Page 456

213 Cal.Rptr. 456

167 Cal.App.3d 688

The PEOPLE, Plaintiff and Respondent, v. SCOTT M., Defendant and Appellant.

Crim. F003673.

Court of Appeal, Fifth District, California.

April 30, 1985.

Review Denied Aug. 29, 1985. ^*

[167 Cal.App.3d 691] Frank O. Bell, Jr., State Public Defender, and Antonia D. Radillo, Deputy State Public Defender, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., W. Scott Thorpe and Shirley A. Nelson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

VANDER WALL, Associate Justice. ^**

STATEMENT OF THE CASE

After a jury trial, appellant was found not guilty of PENAL CODE SECTION 261¹, subdivision (2) (forcible rape); section 288a, subdivision (c) (forcible oral copulation); section 286, subdivision (c) (forcible sodomy); section 289 (forcible penetration of anal opening by foreign object); and section 236 (false imprisonment).

Thereafter, appellant filed a petition to seal and destroy arrest records pursuant to sections 851.8, subdivision (e) and 851.85. The trial judge denied the petition and appellant appeals.

The notice of appeal contained a request for appointment of attorney and a declaration of appellant's indigency.

STATEMENT OF THE FACTS

Criminal Trial

A. Prosecution Case

The alleged victim, Rosalie L., attended a birthday party at the Fresno home of her sister and brother-in-law, Julia and Jesus Fernandez, on June 12, 1982. Ms. L. drank several cups of beer during the party. After the party ended, because Jesus Fernandez had driven her to his residence, Ms. L. expected him to drive her home. However, Jesus was asleep and Julia was tired, so Julia suggested that Ms. L. remain for the night, and be driven home in the morning.

Concerned because her 13-year-old son had left the party earlier to return to her home, and unable to telephone him (because her home had no phone), at about 2 a.m., Ms. L. decided to walk from her sister's house to her (Ms. L.'s) home. As she walked along Olive Street near Blackstone, appellant pulled up next to her in his car and offered her a ride. Because appellant looked nice, and she wanted to get home, Ms. L. got into his car.

Although appellant had promised to take her directly to her home, he made a U-turn on Olive in a direction away from Ms. L.'s home. Despite her protests, appellant drove to his apartment, explaining that he would take her to her home after they had had a couple of beers.

When they arrived at his apartment, appellant exited his car, came around to where Ms. L. was sitting, and told her to get out, saying, "Well, let's go inside." After entering appellant's apartment, Ms. L. noticed appellant locked the door with a key.

Appellant and Ms. L. sat on a sofa talking for 30 to 90 minutes. Appellant then told Ms. L. to get up, and began making the sofa into a bed. When she asked what he was doing, appellant said, "Don't you want to make sex?" Appellant then forced her to remove all her clothes, pushed her onto the sofa bed, and compelled her to have intercourse and to orally copulate him; he also inserted something hard into her rectum at least twice. Prior to the attacks, Ms. L. cried, screamed, struggled, and pleaded to be taken home but appellant put a string across her mouth and threatened to kill her if she did not remain silent. Appellant repeatedly threatened to kill her during the attacks, and at various times handcuffed one or the other of her hands to the sofa or handcuffed her hands together. Appellant also forced Ms. L. to put her tongue in his anus and to lick the area surrounding it. During the sexual assaults, although appellant had told Ms. L. that his name was Scott, she began calling him Greg.

After the sexual attacks, appellant and Ms. L. got up from the sofa bed. She accepted his offer of a beer and smoked a cigarette. Appellant then asked her whether she liked him and if she was mad at him. Because she was afraid, she told appellant that she liked him and was not angry. Ms. L. asked to be taken home, and appellant said that he would take her home after he had purchased some cigarettes. At some point before leaving appellant's apartment, he and Ms. L. hugged and kissed.

Appellant and Ms. L. then drove to a Mayfair Market at Olive and Blackstone, where appellant purchased cigarettes (after warning Ms. L. to stay in the car or "something else is going to happen"). Appellant returned to the car and gave Ms. L. a pack of "Kools" cigarettes, which she had told him was her brand. Ms. L. then asked to be taken home, but appellant began driving back toward his apartment, saying that he wanted to go back to his house and "do it the normal way." When they arrived at appellant's apartment, Ms. L. refused to go inside. When appellant lowered her seat and jumped on top of her, threatening to "do it out here," she first resisted, then told him to go and open the apartment door. When appellant went to open the door to his apartment, Ms. L. grabbed her shoes and ran for help.

No one answered the door at the first house she approached. She ran to a second, where Gloria Silva, who observed Ms. L. to be crying, upset and hysterical, let her inside. The police and Julia Fernandez were called. Ms. Silva observed that Ms. L. had red, circular scrape marks on her wrists, moved as though in pain--taking very small steps--and smelled of alcohol (but did not seem intoxicated). Julia Fernandez came to the Silva residence and observed that Ms. L. was frightened and upset, and had red lines around her wrists. Ms. L. complained to Julia Fernandez that her anus hurt.

City of Fresno Police Officer Phillips responded to the call from Ms. Silva. He entered the Silva residence, and observed Ms. L. sitting on the sofa, crying and making sounds that indicated she was in great pain. He saw red rings around her wrists. After questioning Ms. L., Officer Phillips, following Ms. L.'s instructions, drove to appellant's apartment complex. Ms. L. indicated that one of two apartments was the site of the assaults. The officer then took Ms. L. to the hospital.

Ms. L. was given a "medical-legal rape examination" by a physician at the hospital, which revealed sperm in her vagina, blood in her vagina (consistent with rape or the onset of the menstrual cycle), blood in her rectum (consistent with forcible sodomy or an inflammation of the colon), a moist perineum--the area between the vagina and the rectum--(consistent with sexual assault and drainage of fluid from the vagina), and that she had swelling and redness of both wrists (consistent with handcuff injury). Ms. L. was in such discomfort during the rectal examination that the physician was unable to use an anuscope to determine if there was tearing of the rectum. Ms. L. would not give the physician a direct answer when he asked if cunnilingus had taken place, but she denied that she had vomited or that her assailant (whom she identified as "Greg") had ejaculated in her mouth. Her performance on a horizontal nyastagmus test correlated with a sufficient ingestion of alcohol to make her dizzy.

A criminalist made various tests on two "sexual assault collection kits" (one of Ms. L. and one of appellant). Ms. L.'s tests revealed that her a.b.o. system blood type was group O, her p.g.m. system blood type was type 1, and that she was a "secretor." Appellant's a.b.o. system blood type was group A, his p.g.m. blood type was group 21, and he was also a secretor. Other tests indicated that semen was present in Ms. L.'s vagina and rectum, and that a.b.o. type A and p.g.m. type 21 indicators were present in Ms. L.'s vagina. A.b.o. type A and p.g.m. type 21 indicators were present on Ms. L.'s panties as well.

Ms. L. stayed with her mother for about two and a half to three weeks after the sexual assault, during which time her mother placed towels with alcohol and hot water on her daughter's wrists and buttocks.

Fresno City Police Detective McFadden interrogated appellant (after advising him of his constitutional rights and obtaining a waiver) on June 14, 1982, concerning the alleged sexual assaults. Appellant stated that about 3:30 a.m. on June 13, 1982, he had been driving down Olive when he observed Ms. L. having an argument with some people in a car. Appellant thought she needed help, so he stopped and offered her a ride. When she accepted, he told her he was going to "her" [sic, must have meant "his"] place, and she agreed to accompany him.

Appellant said that he had been to a party earlier that evening where he had been drinking, and that he was drunk at the time he met Ms. L. Appellant was unable to provide Detective McFadden with specifics as to the location of the party or who else was present. When he and Ms. L. arrived at his apartment, they had a few sips of beer, then began kissing and engaging in foreplay. Appellant and Ms. L. both took her clothes off; she was a little intoxicated, but not "super drunk." They got into bed, both naked. Ms. L. pointed out some handcuffs lying nearby, and told appellant that if he wanted to have sex with her, he would have to force her. Appellant and Ms. L. then engaged in intercourse and oral copulation, but not sodomy. Appellant whispered to Detective McFadden that he (appellant) believed Ms. L. was kind of kinky and perverted. Appellant stated that he had handcuffed Ms. L. to the bed and had handcuffed her hands together, during which times he placed his penis into her mouth and her vagina, ejaculating only in her vagina. When first asked by McFadden why Ms. L. would bring charges of rape against him, appellant said he did not know, but later he said that she had asked him for $20 (not in payment for sexual favors) and he had refused to give it to her.

B. Defense Case

Two instructors from the law school attended by appellant, four of his fellow students, and four friends and former coworkers testified that appellant was a peaceful person, courteous and respectful toward women, and that the charge...