People v. Washington
| Decision Date | 30 July 2003 |
| Docket Number | A097381. |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DAVID WASHINGTON, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Defendant David Washington was convicted of rape, oral copulation, and two counts of penetration with a foreign object. The victim was his minor daughter. He claims that the trial court erred in not allowing cross-examination of his daughter regarding an alleged motive to lie, erroneously instructed the jury on the definition of "force," and failed to instruct sua sponte on the lesser offense of sexual battery. He also maintains that there was insufficient evidence supporting his rape conviction. We affirm.
The Alameda County District Attorney charged defendant by information with rape (Pen. Code,1 § 261, subd. (a)(2), count 1), forcible oral copulation ( § 288a, subd. (c)(2) count 2) and penetration with a foreign object ( § 289, subd. (a)(1), counts 3 and 4). The information also alleged that defendant had three prior felony convictions. Following a jury trial, defendant was convicted of all counts. He admitted the three prior felony convictions. The court struck one of defendant's prior convictions, and sentenced him to an indeterminate term of 25 years to life, plus 5 years each for the two prior convictions. This timely appeal followed.
The victim's testimony
Defendant's minor daughter, Elena, was 16 years old in the fall of 1999. Until July 1999, she had not had a relationship with her father, who had been incarcerated during her childhood. She was raised by her maternal grandparents. After her grandmother's death she and her father began to exchange letters. A few weeks later she moved in with her maternal uncle and his wife in San Francisco. Elena and her uncle got along but had some disagreements. Elena hoped to establish a relationship with her father. She called her father and asked if she could stay with him, and he consented. She moved in with defendant, his fiancee Alice McLane, her three children, and McLane's mother in July 1999.
Initially, Elena and her father got along well. Then her father started to get more strict, and "didn't want [her] outside or going anywhere unless [she] called him . . . first." By September 1999, the relationship had deteriorated. Her father forbid her to see her boyfriend because he felt the boyfriend was too old for her. Defendant punished Elena by grounding her—forbidding her to go anywhere or use the telephone. Once when defendant felt she was not home on time, he grabbed her, "pushed [her] down the hall towards his room, . . . threw [her] on his bed and slapped [her] in [the] face."
On September 24, 1999, defendant arrived home from work about 10:00 or 11:00 p.m. He told Elena to "get in the car because [they] were going for a ride." She complied. Defendant drove to a Motel 6 near Hegenberger Road in Oakland. They went directly to a room, without stopping first to check in. Once inside, defendant asked Elena if she had gone somewhere that day that she was not supposed to go. He then asked Elena questions about her boyfriends, past boyfriends, and past sexual experiences. The conversation lasted a few hours. Elena testified that she thought the conversation was unusual, but defendant explained to her that she should be able to tell him anything because he was her father, that he had to trust her, and she had to tell him the truth. They left the motel at 1:00 or 2:00 in the morning and returned home. They did not discuss the trip to the motel, and Elena did not tell anyone about it at the time.
On Friday, October 1, 1999, defendant came home between 9:00 and 11:00 p.m., while Elena was laying down, getting ready to go to sleep. Defendant told her to get up and come with him. Elena got up, put on her clothes and shoes, and got in the car. Defendant did not tell her where they were going, and Elena was afraid to ask. Defendant took Elena to the same motel, and entered a room using a key defendant had with him.
Once in the motel room, defendant asked Elena where she went that evening. She responded that she was babysitting. Defendant accused of her lying. Elena admitted at trial that she was lying. Defendant asked her where she really went and whether she had sex that night. Elena denied having sex and defendant again said she was lying. After continuing to question her, defendant told her to take off her clothes. Elena asked why, and "he said because I was lying." She could tell he was serious by the look on his face. Elena was mad and scared "because [she] didn't know what he was doing." She continued to ask him why, but after a couple of minutes, removed her clothes but left on her underwear. Defendant told her to take off everything. She was "trying to do what he said, so [they] could leave."
Defendant then told Elena to lay down. He kept asking her whether she had sex, and she kept denying it. Defendant wanted Elena "to prove to him that [she] didn't . . . have sex." She testified that "he wanted me to stick my finger inside of myself to see if it was wet." Elena kept asking defendant why; she kept saying she was telling the truth. Defendant told her she was lying, and that if she complied they could leave. Elena wanted to go home, so she put her finger inside her vagina, "took it out, and [defendant] felt [her] finger and he said that he didn't feel anything." Elena started crying, and did not stop crying. Defendant told her that "he couldn't feel nothing and that he wanted to do it." Elena asked him why and repeated that she was telling the truth. Defendant responded that "he wanted to do it, and we weren't leaving."
Defendant told her he wanted her to lay down and open her legs. Elena was lying on her back on the bed with her knees in the air and her legs closed and her arms covering her chest. Elena refused to open her legs, so defendant put his hands on her knees and opened them. Elena shut her legs. Defendant told her to "stop playing" and opened her legs again. Elena shut her legs again. Defendant opened her legs by putting a hand on each knee and pushing outward with enough force that it forced her to open up her legs. She "just left them there." Elena continued to cry and defendant told her "they were fake tears" and to stop playing. Elena was mad and scared because defendant was acting "funny" and inappropriately and she wanted to go home. She did not think she had a choice to stop, because she thought that they would not leave if she did not comply.
Defendant put his finger inside Elena's vagina, removed it, and "said that it was wet." He again asked her whether she had sex and she told him no. Afterwards, he sat on the edge of the bed and watched television. Elena asked to get up, but defendant said no. Elena was lying on the bed with her legs open and her hands on her eyes. She was afraid to get off the bed.
Defendant next started asking Elena questions about oral sex. He asked her to name the boyfriends with whom she had had oral sex and to tell him whether she liked it. Elena was crying during this conversation. She asked defendant if he was drunk or on drugs. She wanted to know "what was wrong with him, and he said nothing was wrong." Though defendant did not appear intoxicated to her, she asked those questions because "he was making me do stuff that I didn't think that he would ever make me do."
Defendant then got on top of the bed, and he laid between her legs. He "put his head down there, and . . . put his tongue inside of [her]." Elena told him to stop and tried to push his head away. She was still crying. At one point she used enough pressure that she was able to move his head, but "he kept trying to go back, so [they] just went back and forth moving and [she] kept telling him to stop." At one point Elena stopped trying to push his head away. She "just gave up and . . . let him do it" because she "thought he was going to stop." Elena was afraid because defendant had "a very bad temper, and [she] didn't want him to be mad." Defendant's tongue penetrated Elena's vagina for "a couple of minutes."
Defendant then got up and went to the bathroom. Elena did not get up from the bed because defendant did not say that she could and she was afraid. When defendant came out of the bathroom, he "held up a condom and said this is what [she] was supposed to use when [she] had sex with boys." He walked to the bed, took off his shirt and pants, and put on the condom. Defendant got on top of her. Elena started crying again and "pulled" her hands over her eyes. Defendant tried "to put himself inside of [her], and [she] was trying to push him away, and . . . telling him to stop." Defendant told Elena that "Asian people have sex with their daughters to teach them how to have sex." When Elena called him "dad," defendant told her to call him "Mark" and that he would call her "Michelle." During the time defendant was on top of her, Elena tried to push him away by "pushing on the shoulders just telling him to stop." She also tried "to scoot up so . . . [her] vagina was away from his penis." When she tried to scoot away from him, he would "come back, come closer." Elena finally "gave up" because "he was very persistent, and [she] didn't think that he was going to stop," and she did not think she had a choice. Defendant put his penis in her vagina for "a couple of minutes." Elena "just laid there with [her] hands over [her] eyes."
Defendant then got up and went to the bathroom. Elena did not try to move from the bed while he was in there because "he hadn't said I could get up yet" and she was scared. When he came out of the bathroom, Elena asked for his permission to put her clothes on and he gave it. Defendant asked her if she was going to tell anybody, and she told him no. He asked why, and Elena "told him because he's my father, and...
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