People v. Vela

• Decision Date: 17 September 1985
• Docket Number: Cr. F002772
• Citation: 172 Cal.App.3d 237,218 Cal.Rptr. 161
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Herberto VELA, Defendant and Appellant.

Page 161

218 Cal.Rptr. 161

172 Cal.App.3d 237

The PEOPLE, Plaintiff and Respondent, v. David Herberto VELA, Defendant and Appellant.

Cr. F002772.

Court of Appeal, Fifth District, California.

Sept. 17, 1985.

Review Denied Dec. 31, 1985. ^*

[172 Cal.App.3d 239] Dominic P. Eyherabide (court-appointed) Bakersfield, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., and Joel Carey, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

BEST, Associate Justice.

"Once penetration has occurred with the female's consent, if the female changes her mind does force from that point (where she changes her mind) constitute rape?"

On this appeal we must determine the answer to the above question and the effect of the trial court's failure to provide the jury with the correct answer.

Defendant, then 19 years of age, was charged with the forcible rape of Miss M., then 14 years of age, the alleged rape occurring during the evening hours of November 20, 1982, near Bakersfield, California. The testimony of Miss M., together with other prosecution evidence, was more than sufficient to support a finding by the jury that defendant was guilty of rape by force of Miss M. However, during its case-in-chief, the prosecution presented evidence of a statement given by defendant to Deputy Eddy of the Kern County Sheriff's Department. Defendant's statement to Deputy Eddy, if believed to be true, together with all the other evidence, would have supported findings by the jury that Miss M. initially consented to an act of sexual intercourse with defendant; that during the act she changed her mind and made defendant aware that she had withdrawn her consent; and that defendant, without interruption of penetration, continued the act of sexual intercourse against the will of Miss M. by means of force.

During deliberations, the jury sent a note to the trial court that read, "Once penetration has occurred with the female's consent, if the female changes her mind does force from that point (where she changes her mind) constitute rape?"

Pursuant to agreement of counsel, the court answered the question in the affirmative. The trial court and attorneys then did further research on the matter and concluded that an affirmative answer to the jury's question may have been incorrect. In the meantime, the jury returned a verdict finding defendant guilty of rape and personal infliction of great bodily injury. The trial court then polled the jury on the question of whether its verdict was based on the circumstances described in the note. Two jurors answered "Yes" and ten jurors answered "No." The trial court then advised the jury:

"The note that you gave us yesterday, quite frankly, is something that took us a while to check on. And to be candid with you, we do not have a definitive answer to that question, okay? The attorneys and I have discussed it, and, quite frankly, we are not sure that I gave you the correct answer or not.

"What I would like you to do is to go back in and deliberate further with the understanding that the question I answered yesterday I now must tell you I do not have an answer for you. You will then have to decide it as if I had not answered that particular question in that particular fashion."

The trial court then reinstructed the jury on the crime of rape. After further deliberations, the jury returned a unanimous verdict of guilty. No inquiry was made on this verdict as to the theory upon which the jurors based their finding that defendant was guilty of rape.

DISCUSSION

In withdrawing its answer to the jury's question and telling the jury that there was no definitive answer, the trial court left the jury uninstructed on the point of law raised by the question.

It is settled that in criminal cases the court must sua sponte instruct on the general principles of law which are raised by the evidence and which are necessary for the jury's understanding of the case. (People v. Hood (1969) 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 462 P.2d 370; People v. Wilson (1967) 66 Cal.2d 749, 759, 59 Cal.Rptr. 156, 427 P.2d 820.) "Just as the law imposes a sua sponte obligation to instruct on certain principles of law in the first place (those rules openly and closely connected with the case) so does it impose on the judge a duty to reinstruct on the point if it becomes apparent to him that the jury may be confused on the law." (People v. Valenzuela (1977) 76 Cal.App.3d 218, 221, 142 Cal.Rptr. 655.) Moreover, as stated in People v. Stewart (1976) 16 Cal.3d 133, 140, 127 Cal.Rptr. 117, 544 P.2d 1317, the court is under an " '... obligation to instruct on defenses, ... and on the relationship of these defenses to the elements of the charged offense ...' where '... it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense....' "

It was, therefore, incumbent on the trial court, in the instant case, to answer correctly the question posed by the jury, and the failure to do so constituted error. Whether such error was prejudicial to defendant and requires reversal of the judgment depends upon whether the answer to the jury's question is "Yes" or "No." We are in sympathy with the trial court because this question is one of first impression in California. For guidance, we turn to the scant authority from other jurisdictions.

In a trial for rape in Maryland, the jury, during deliberations, addressed the following question to the trial judge: "When a possible consensual sexual relationship becomes non-consensual for some reason, during the course of the action--can the act then be considered rape?" (Battle v. State (1980) 287 Md. 675, 414 A.2d 1266, 1268.) The appellate court in Battle v. State held the act could not be a rape and that the trial court erred in answering the question in the affirmative. The appellate court first noted that case law is unanimous in holding consent given at any time subsequent to the act of intercourse will not prevent the act from being a rape. It also noted that authorities have established that consent at any time prior to penetration will prevent the act from being a rape. The court also discussed cases that hold a victim may give consent throughout the preparatory acts, but if the victim withdraws consent before penetration and if the act is thereafter accomplished by force, there is a rape. (Id., 414 A.2d at pp. 1269-1270.) After reviewing these cases and finding no discussion of withdrawal of consent in midact, the court concluded: "Given the fact that consent must precede penetration, it follows in our view that although a woman may have consented to a sexual encounter, even to intercourse, if that consent is withdrawn prior to the act of penetration, then it cannot be said that she has consented to sexual intercourse. On the other hand, ordinarily if she consents prior to penetration and withdraws the consent following penetration, there is no rape." (Id., at p. 1270.)

The same conclusion was reached in a North Carolina case. In State v. Way (1979) 297 N.C. 293, 254 S.E.2d 760, the jury also asked during deliberations if consent could be withdrawn and a rape conviction found. The trial and appellate courts said yes, but the Supreme Court said no. This court noted that the normal situation in which consent was withdrawn was that in which more than one act of intercourse occurred. In such case, consent to one act...