People v. West

• Decision Date: 08 January 1991
• Docket Number: No. C006278,C006278
• Citation: 226 Cal.App.3d 892,277 Cal.Rptr. 237
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ronald E. WEST, Defendant and Appellant. Crim.

Page 237

277 Cal.Rptr. 237

226 Cal.App.3d 892

The PEOPLE, Plaintiff and Respondent, v. Ronald E. WEST, Defendant and Appellant.

Crim. No. C006278.

Court of Appeal, Third District, California.

Jan. 8, 1991.

Certified for Partial Publication ¹

[226 Cal.App.3d 893] Dwight M. Samuel, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., William G. Prahl, and Mary Jane Hamilton, Deputy Attys. Gen., for plaintiff and respondent.

CARR, Associate Justice.

Defendant, a civilian employee of the Yuba County Jail, was convicted of forcible sodomy (Pen.Code, § 286, subd. (c) ² (count I), sexual battery ( § 243.4) (count II), and sodomy committed while confined in a county jail ( § 286, subd. (e)) (count VII). ³ All crimes were committed against D.H., an inmate at the jail. (D.H. is hereinafter referred to by his initials or as "the victim.") The jury acquitted defendant on a fourth count, sodomy by threat of authority ( § 286, subd. (k)) (count III).

Defendant was sentenced to the lower terms of three years on count I, two years on count II and 16 months on counts III with sentences on counts II and III stayed pursuant to section 654. On appeal, defendant contends: (1) the court erred in admitting evidence of other crimes, (2) there is insufficient evidence to support the conviction for forcible sodomy, and (3) prosecutorial misconduct compels reversal. On our own motion, we requested supplemental briefing on the question of whether, as a matter of law, defendant by reason of his status as a nonprisoner could be convicted in count VII of violating section 286, subdivision (e). We shall reverse the judgment as to counts II and VII but affirm the conviction for count I.

FACTUAL AND PROCEDURAL BACKGROUND

In 1983, defendant began working as a civilian employee for the Yuba County Jail. His duties as Food Service Manager included managing the jail commissary and supervising the trustees and civilian assistants who worked there.

In 1988, an eight-count information was filed charging defendant with numerous sex offenses committed against two inmates, D.H. and H.B., and the case proceeded to trial. The jury acquitted defendant on the counts relating to H.B. and deadlocked on the counts relating to D.H. It is the retrial of these latter counts that is at issue in this appeal. At trial, the following evidence was adduced:

While serving a 120-day term at the Yuba County Jail, D.H. worked as a trustee and was often assigned to the commissary under defendant's supervision. On January 11, 1988, only a few days before he was due to be released, D.H. went to the commissary to take inventory. Defendant arrived a few minutes later to help and stood behind him. When D.H. leaned over a cart to write down the inventory count, defendant rubbed D.H.'s hair and touched his buttocks. As D.H. stood with his back to defendant, defendant began unbuttoning the victim's pants and pulled D.H. into him by putting his arm around the victim's waist. Defendant then pulled the victim's pants and underwear down to his thighs and unzipped his own pants. Defendant tried to insert his penis into the victim's anus. The victim testified this hurt. Defendant also touched the victim's penis with his hand. When the victim turned his head around, he saw defendant had an erection. The victim pulled away from defendant The victim testified he was frightened throughout the incident and did not leave sooner because he thought defendant would punish him. He believed defendant had a great deal of power at the jail and could rescind his good-time/work-time credits, prevent his early release, or move him into a different cell.

pulled up his pants and walked out of the commissary.

The victim stated defendant had patted him on the buttocks a few times previously and had run his fingers through his hair. However, on several occasions when D.H. accompanied defendant on errands away from the jail, no sexual advances were made. Defendant discussed homosexuality with the victim on several occasions. The victim asserted he did not immediately report the full extent of defendant's conduct because he was embarrassed by what had happened. He reiterated that he did not seek help during the assault because he was afraid defendant would "pull" his good-time/work-time credits.

Over the repeated objections of defendant, the prosecution presented the testimony of D.M., who had been incarcerated at the jail in 1987 and had also served as a trustee in the commissary under defendant's supervision. D.M. had not been called as a witness in the previous trial. D.M. testified that approximately two or three weeks before his release from jail, he had been stocking the commissary when defendant came up behind him, put his arms around D.M.'s shoulders, and rubbed his pelvis against D.M.'s buttocks. D.M. said no further sexual advances were made: defendant did not expose himself, try to remove D.M.'s clothing, or remove his own clothing.

The supervising deputy sheriff of the jail and the jail commander both testified defendant was an excellent supervisor who needed little guidance from the jail authorities. Defendant had the power to fire a trustee but could not revoke good-time or work-time credits. Defendant could also recommend an early release for trustees. ⁴

Defendant testified on his own behalf and described the events of January 11 as follows: At approximately 7:30 that morning, defendant called D.H. into his office to discuss D.H.'s failure to complete his job the previous night. At about 9:45, the men went into the commissary to stock the inventory. As they finished, D.H. backed into defendant and rubbed his pelvis against him in a circular motion, giving defendant an erection. D.H. turned around, unzipped defendant's pants, lowered his own pants and underwear, and placed defendant's penis on his buttocks. D.H. then pulled away slightly, turned around and masturbated. He then pulled up his clothing and left. Defendant did not report the incident to the authorities because he was afraid he would lose his job.

A criminologist testified that seminal fluid was found on the front of a pair of briefs taken from the victim soon after the incident. The semen came from a person with Type A blood, the victim's bloodtype. ⁵

Defendant did not remember ever touching D.H. but said he may have touched D.H. on the buttocks when telling him to hurry up and may have touched D.H.'s hair to keep it away from food. He denied having a sexual intent in any of these touchings. He also denied rubbing against D.M. but said he may have collided with him if the storeroom was crowded.

The jury convicted defendant on three counts: forcible sodomy, sexual battery, and "sodomy in the county jail." This appeal followed.

DISCUSSION

I-III ^*

IV

Finally, on our own motion, we requested supplemental briefing from the parties on the question of whether defendant, who was not confined in the county jail, could be convicted of violating section 286, subdivision (e). That statute provides in pertinent part: "Any person who participates in an act of sodomy with any person of any age while confined in any state prison ... or in any local detention facility ... shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year."

Defendant responded he could not be convicted of this offense because the statute applies only to those persons who commit an act of sodomy "while confined" in a prison or detention facility. The People disagree, asserting the statute must be read to prohibit any act of sodomy occurring in a penal institution. ¹¹ Defendant's assertion comports with the statutory language and the proper interpretation to be accorded such language. We therefore determine the statute has no application to persons who are not inmates in a state prison or local detention facility.

"It is settled that ' "We are required to give effect to statutes 'according to the usual, ordinary import of the language employed in framing them.' ..." ' [Citation.] Stated otherwise, 'When statutory language is thus clear and unambiguous there is no need for construction, and the courts should not indulge in it.' [Citations.] [p ] We have declined to follow the plain meaning of a statute only when it would inevitably have frustrated the manifest purposes of the legislation as a whole or led to absurd results. [Citations.]" (People v. Belleci (1979) 24 Cal.3d 879, 884, 157 Cal.Rptr. 503, 598 P.2d 473.)

Section 286, subdivision (e) punishes "any person who participates in an act of sodomy with any person of any age while confined in any state prison ... or in any local detention facility...." The question presented is who must be confined for the statute to apply: the perpetrator, the victim, or either of them.

Relying on grammatical rules and other means of divining "legislative intent", the People assert the "while confined" phrase refers to both the offender and the victim, i.e., the statute is violated if either the offender or the victim is confined in a penal institution. ¹² In arguing the phrase applies to the victim of the crime, the People note relative or modifying phrases are generally to be applied to the words immediately preceding them. (Oliva v. Swoap (1976) 59 Cal.App.3d 130, 138, 130 Cal.Rptr. 411.) Consequently, the People argue the "while confined" phrase must refer to the second "any person," i.e., the victim. The People further assert that no comma separates the second "any person" from "while confined," suggesting the phrases must relate to each other. Such a contorted interpretation ignores the plain meaning of the word "while."

As a conjunction, "while" means "during the time that" (Webster's Ninth New Collegiate Dictionary (1984) p. 1343) and must therefore temporally relate two verbs to each other. ¹³ (See Fowler, A Dictionary of Modern English...