Opinion
A149367
06-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ANDRE LAMONT JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR312396)
Defendant Andre Lamont Johnson appeals from his conviction of one count of forcible rape (Pen. Code, § 261, subd. (a)(2)). He raises a single issue on appeal—that the trial court erred in denying his request for an instruction on unlawful sexual intercourse with a minor (§ 261.5), which he contends was a lesser included offense under the accusatory pleading test. We affirm.
All further undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant's conviction arose out of conduct involving his stepdaughter, T.G. At the time, T.G. was 14 years old and lived with her mother and two siblings. Defendant had been married to her mother, but had moved out of the family residence a few weeks before the incident in question. Nevertheless, he continued to be in and out of the residence.
On the morning of December 4, 2014, T.G. woke up at about 6:30 a.m. Her mother had taken her brother to the bus stop, so only T.G., her sister, and defendant were in the house. Earlier that morning, T.G. had heard her mother and defendant having a heated discussion. T.G. started getting ready for school and went into the bathroom, which shared a thin wall with her bedroom. T.G. heard a knock and opened the door thinking it was her sister, but saw defendant instead. They said "good morning" to each other, and defendant entered the bathroom.
Scared, T.G. backed up against the towel rack on the wall and saw the handle of a butcher knife hanging out of defendant's pants pocket. Defendant took out the knife, held it against T.G.'s neck, and said, "If you tell anyone, I'll kill you." When T.G. screeched, defendant choked her with both hands. When T.G. told him to stop, defendant choked her even more forcefully. At that point, T.G. could not move, as defendant was much bigger and stronger than she was.
At the time, T.G.'s sister was in the adjoining bedroom and heard a female voice say " 'stop' " and the towel rack moving against the wall. Their mother was still out of the house.
In the bathroom, defendant had stopped choking T.G. and told her to get down on her knees and remove her clothes. Still frightened because he had a knife, she complied, and when defendant told her to suck his penis, she also obeyed. He then told her to lay on her back, and again she complied out of fear. Defendant got on top of her, and although she tried moving out from underneath him, he was too heavy. Defendant vaginally penetrated her three times. T.G. was scared he would stab her if she said or did anything. When he was finished, defendant dressed himself and walked out of the bathroom.
T.G. washed herself, finished getting ready, and went back to her room. Her sister was still there and asked what had happened, as T.G. looked "[s]cared" and "really shaken up." She "didn't look like herself." Afraid her sister would tell their mother, who would confront the defendant, T.G. said she was "fine."
But at school, T.G. confided in one of her classmates because she thought her friend would not tell anyone. T.G. told her friend defendant had threatened to kill and bury her if she told anyone, and that he had said "I've been wanting you ever since I met you" and "now is the time that you're going to give me some before I leave." T.G. was shaking and teary eyed, and cried while recounting the incident. T.G.'s friend took her to the physical education teacher, and T.G. told the teacher what had happened. The teacher thought T.G. looked stressed and in shock.
Later that day, two police officers arrived at T.G.'s school to take her statement. The officers then took her to the hospital, where a sexual assault response team (SART) nurse examined her. The SART nurse observed trauma, including redness or swelling on the side of T.G.'s neck. She also found two lacerations on the bottom of T.G.'s vagina called the posterior fourchette. Injuries in this area are common in sexual assault cases, and according to the SART nurse, T.G.'s injuries likely occurred during the preceding 24 hours. Defendant's nursing expert was of the opinion the examination photos did not show injury to the fourchette and the detected marks could have been the result of chaffing or poor hygiene.
The SART nurse swabbed T.G.'s lips, as well as her internal and external vagina. The DNA profile taken from the sperm sample collected from T.G.'s vagina matched defendant's DNA profile. The chance this DNA sample belonged to someone else was estimated at approximately one in 920 quadrillion African Americans, one in 350 quintillion Caucasians, and one in 10 sextillion Hispanics. As for the lip sample, the major source of DNA matched T.G.'s profile and the secondary minor DNA source was from a male other than defendant.
Prior to the December 2014 event, T.G. had, on numerous occasions, engaged in conduct that called her credibility into question. In September 2013, she had stolen shoes from a fellow student and lied about it to her school principal. She later admitted stealing the shoes. In April 2014, she had been in trouble with her mother and defendant for getting low grades. As punishment, an iPad she expected as a birthday gift went to her sister. The same month she got into trouble for having sexually explicit text conversations with a boy, and her mother and defendant put her on restriction and confiscated her iPod Touch. T.G. stole it back and lied about taking it, further straining her relationship with them. Around this same time, T.G. told a teacher that while defendant was driving her to school, he made an inappropriate comment and, earlier that week, exposed himself. When the police arrived, she told them she feared being alone with defendant and did not want to go home. However, when T.G. made a second statement, she said nothing had happened, and she was cited for making a false police report and ordered to do community service.
On multiple occasions, T.G. also denied a rape occurred on December 4. A few weeks after the incident, T.G.'s grandmother asked what had happened between her and defendant. Despite having a good relationship with her grandmother, T.G. said "nothing" and denied being raped. At trial, T.G. said she was scared to tell her grandmother because she did not want her mother to find out. The following month, in January 2015, T.G.'s mother asked what had happened, and T.G. again said "nothing" and denied being raped. At trial, T.G. said she had still been frightened and did not want anyone to know because "[t]hings would have got bad." Two months later, in March 2015, T.G. also told a defense investigator nothing had happened and she had made up the allegations because she did not like defendant taking away her phone. However, several months later during the preliminary hearing, T.G. testified defendant had raped her. She said she was tired of saying nothing had happened and wanted people to know the truth.
Following the preliminary hearing, the District Attorney filed an information charging defendant with one count of forcible oral copulation of a minor victim over 14 years (§ 288a, subd. (c)(2)(C)), and one count of "FORCIBLE RAPE—CHILD VICTIM OVER 14 YEARS" (§ 261, subd. (a)(2)). The information further alleged, as to the forcible rape charge, that "the victim was a child, 14 years of age and older" and the offense was a " 'serious felony' " (§ 1192.7, subd. (c)). As to both charged offenses, it was additionally alleged defendant had personally used a dangerous or deadly weapon in committing the crimes (§ 667.61, subd. (e)(3)), he had suffered prior serious or violent felony convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (a)(1), (b)-(i)) and he was not eligible for any term of imprisonment in the county jail (§§ 1170, subds. (f) & (h)(3), 1385).
The jury was instructed, as to the forcible rape charge, with the standard CALCRIM instruction, which makes no mention of and requires no finding as to either the victim's or the defendant's age. (CALCRIM No. 1000.) The jury was separately instructed, again with the standard CALCRIM instruction, as to the enhancement and sentencing factor allegations. (CALCRIM No. 3250.) The jury was told it was to follow this instruction only if it found defendant guilty of count 1 and/or count 2, and if it so found, to find whether T.G. was, at the time of the crimes, 14 years of age or older and under the age of 18. The jury was also instructed on the lesser included offense of battery.
During deliberations, the jury sent a note to the court asking: "Does the age of the Plaintiff mean an automatic decision of rape if we believe there was intercourse? (Is statutory rape indicated regardless of verbage in charge?)" The court responded as follows: "Count 2 is charged as forcible rape; not statutory rape. Please refer to instruction 1000 for all the elements the People are required to prove. If you conclude intercourse occurred you must also determine if that intercourse was accomplished by force, violence, duress, menace or fear. Age is a circumstance you may consider along with all the other circumstances in deciding whether or not intercourse was accomplished by force, duress or fear, but it does not 'mean an automatic decision of rape.' "
The jury deadlocked on the forcible oral copulation charge and found defendant guilty of the forcible rape charge. After declaring a mistrial on the oral copulation charge, the trial court sentenced defendant to a total prison term of 23 years.
DISCUSSION
No Error in Refusing to Instruct on Asserted Lesser Included Offense
California law requires a trial court to instruct on all lesser included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149 (Breverman).) For purposes of determining a trial court's instructional duties in this regard, California law recognizes two tests—the "elements" test and the "accusatory pleading" test. (People v. Smith (2013) 57 Cal.4th 232, 240.) The elements test asks whether the statutory elements of the greater offense include all the elements of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117.) The accusatory pleading test looks only to the accusatory pleading to determine whether the facts alleged include all the elements of the lesser offense. (Ibid.) A lesser offense is necessarily included in a greater offense if one of these tests is met, such that the greater cannot be committed without also committing the lesser. (Ibid.) This instructional rule prevents either party from forcing an all-or-nothing choice between conviction of the charged offense and complete acquittal. (Id. at p. 119.) We review a trial court's refusal to instruct on an asserted lesser included offense de novo. (People v. Licas (2007) 41 Cal.4th 362, 366.)
Defendant concedes unlawful sexual intercourse with a minor is not a lesser included offense of forcible rape under the elements test. He contends, however, that it is a lesser included offense under the accusatory pleading test because the information here, as we have recounted, alleged "On or about December 4, 2014, [defendant] did commit a felony namely: FORCIBLE RAPE-CHILD VICTIM OVER 14 YEARS," and further alleged "the victim was a child, 14 years of age and older."
The Attorney General maintains there was no instructional error, citing People v. Woods (2015) 241 Cal.App.4th 461 (Woods). In Woods, the appellate court rejected a like argument, ruling unlawful sexual intercourse with a minor was not a lesser included offense of forcible rape under the accusatory pleading test. (Id. at pp. 477-482.) In Woods, the information alleged, inter alia, numerous counts of "forcible rape" and numerous counts of "forcible oral copulation of a minor aged 14 or older." (Id. at p. 469.) It further alleged the defendant was subject to the One Strike law "in that he committed multiple offenses on separate occasions against the same victim, who was a minor 14 years or older, pursuant to section 667.61, subdivisions (l) and (m)." (Id. at p. 470.)
The appellate court initially rejected the defendant's assertion that section 261.5, subdivision (a), in and of itself, describes a substantive offense. (Woods, supra, 241 Cal.App.4th at pp. 477-478.) Rather, it "agree[d] with the People that subdivision (a) . . . acts in concert with the other subdivisions ([section 261.5,] subd. (b), subd. (c), or subd. (d)), to set out a substantive offense." (Id. at p. 478.) In this regard, the court pointed to the standard CALCRIM instructions for each of the three ways in which the offense can be committed. "(See CALCRIM No. 1070 [instruction for unlawful sexual intercourse when defendant was 21 or older and victim was under 16 years old at the time of the intercourse, pursuant to § 261.5, subds. (a) & (d)]; CALCRIM No. 1071 [instruction for unlawful sexual intercourse when defendant is more than three years older than the victim and the victim was under the age of 18 at the time of the intercourse, pursuant to § 261.5, subds. (a) & (c)]; CALCRIM No. 1072 [instruction for unlawful sexual intercourse when defendant is not more than three years older or younger than the victim and the victim was under the age of 18 at the time of the intercourse, pursuant to § 261.5, subds. (a) & (b)].)" (Woods, at p. 478.) In short, as the standard instructions set forth, each of the specified ways of committing the offense include age requirements for both the victim and the defendant. (Ibid.)
In Woods, the defendant maintained the allegations of the forcible oral copulation charges, which included that " 'the victim was younger than 18 years old' " and " 'a minor' " at the time of the alleged acts, satisfied the accusatory pleading test for purposes of requiring a lesser included instruction in connection with the forcible rape charge. (Woods, supra, 241 Cal.App.4th at p. 479.) The Court of Appeal declined to look outside the forcible rape charges to find such an instructional duty, pointing out that the allegations of the forcible rape charges did "not include the allegation [the victim] was a minor, her age or Woods's age at the time of the intercourse." (Ibid., italics added.)
The defendant also pointed to the sentencing enhancement allegations, which alleged the victim was "a minor at the time of the intercourse," as satisfying the accusatory pleading test and triggering entitlement to a lesser included instruction. (Woods, supra, 241 Cal.App.4th at pp. 479-480.) The appellate court rejected this assertion on the ground the One Strike sentencing allegations were akin to enhancement allegations, which courts are not to look at for purposes of determining whether an accusatory pleading embraces a lesser included offense. (Id. at pp. 480-482, citing to People v. Wolcott (1983) 34 Cal.3d 92, 96, 100-101.) The court observed: "In this case, the One Strike allegations against Woods operated in the same way that the enhancement allegation operated in Wolcott, as a review of the verdict forms confirms. The verdict forms demonstrate that the jury first determined Woods's guilt on the substantive offense of forcible rape, which did not involve any determination as to the victim's age. Only after the jury determined that Woods was guilty as to each count of forcible rape did the jury then answer the separate question whether it found 'that in the commission of the above offense the victim was a minor over fourteen years of age or older and that said defendant has been convicted in the present case of committing a separate violation of PC 261(a)(2), 288a(c)(2)(A), or PC 288a(d)(1) against the same victim [] on a separate occasion, within the meaning of PC 667.61(m).' Thus, the jury did not consider the evidence as to the One Strike allegation in determining Woods's guilt as to the forcible rape charge; as in Wolcott, the 'orderly, step-by-step procedure' would have 'become muddled' if the jury had been required to consider evidence of the One Strike law allegation 'in determining guilt of a lesser offense.' (Wolcott, [] at p. 101.)." (Woods, at p. 482, italics omitted.)
Defendant's claim here, that he was entitled to a lesser included instruction on unlawful intercourse with a minor, fails for the reasons articulated in Woods. Although the allegations of the forcible rape count include language that T.G. was a "CHILD VICTIM OVER 14 YEARS," there is no allegation as to defendant's age. Thus, the forcible rape allegations do not describe any of the three ways in which the offense of unlawful intercourse with a minor can be committed.
Defendant asserts his own age is immaterial and the pivotal allegations were that T.G. was a child victim, "14 years of age or older." But, this assertion is predicated on the claim subdivision (a) of section 261.5, itself, criminalizes any intercourse with a person under the age of 18, and subdivisions (b) through (d) prescribe only the "severity" of the offense. Woods, however, concludes otherwise, and to our knowledge, no appellate court has disagreed with its reasoning.
The trial court, accordingly, did not err in refusing to instruct the jury on unlawful intercourse with a minor as a lesser included offense of forcible rape.
No Prejudicial Error
Even assuming the accusatory pleading test was satisfied in this case, we need not, and do not, decide whether there was "substantial evidence" defendant was guilty "of the lesser offense, but not the charged offense," requiring instruction on unlawful intercourse with a minor. (Breverman, supra, 19 Cal.4th at p. 177.) As our Supreme Court explained in Breverman, there is a significant distinction between this standard—which requires instruction on a lesser included offense whenever a " ' "jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser, but not the greater, offense was committed"—and the standard for determining whether failure to instruct on a lesser included offense was harmless error. (Id. at pp. 177-178.)
In deciding whether evidence is " 'substantial' " for purposes of requiring instruction, "a court determines only its bare legal sufficiency, not its weight." (Breverman, supra, 19 Cal.4th at p. 177.) "Appellate review [for prejudicial error] under Watson, on the other hand, takes an entirely different view of the evidence. Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result . . . . [Thus, a]pplication of the Watson standard of appellate review may disclose that, though error occurred, it was harmless." (Id. at pp. 177-178.)
People v. Watson (1956) 46 Cal.2d 818 (Watson). --------
Given the record here, no prejudicial error occurred even assuming unlawful intercourse with a minor was a lesser included offense and further assuming there was substantial evidence to support it. There is no dispute defendant penetrated T.G. and left his semen. The evidence he did so through force is strong. T.G.'s sister heard a female voice in the bathroom say " 'stop' " and heard the wall rack in the bathroom moving. When T.G. returned to her bedroom, she looked "[s]cared" and "really shaken up," and "didn't look like herself." Although T.G. told her sister nothing had happened, her explanation, that she thought her sister would tell her mother, who would tell defendant, was entirely plausible. At school that morning, T.G. confided in a friend, who also described T.G. as shaking and teary eyed. When her friend told their physical education teacher, T.G. told the teacher what had happened, and the teacher similarly described T.G. as stressed and looking like she was in shock. That same day, she also gave a statement to the police that she had been raped. The SART nurse, in turn, concluded T.G.'s vaginal lacerations were consistent with forcible rape. It is true there was evidence impugning T.G.'s credibility in the past, including evidence she previously had accused defendant of exposing himself to her. But, she recanted this accusation and was prosecuted, indicating she ultimately felt compelled to be truthful. Accordingly, comparatively, the evidence of forcible intercourse was vastly stronger than any evidence the intercourse was consensual and committed on a willing minor.
While defendant puts great stock in the fact the jury specifically asked about statutory rape, its note to the trial court did nothing more than ask whether it was required to find only that intercourse had occurred. The inference defendant purports to draw from the jury's question—that it was struggling over the issue of forcible intercourse and looking for some lesser charge on which to convict —is total speculation. The trial court, moreover, answered exactly and directly the question asked, that "Count 2 is charged as forcible rape; not statutory rape. Please refer to instruction 1000 for all the elements the People are required to prove. If you conclude that intercourse occurred you must also determine if that intercourse was accomplished by force, violence, duress, menace or fear. Age is a circumstance you may consider along with all the other circumstances in deciding whether or not intercourse was accomplished by force, duress or fear, but it does not 'mean an automatic decision of rape.' " Nor does the fact the jury failed to reach a verdict on forcible oral copulation suggest it struggled with the forcible rape charge. No DNA evidence supported the oral copulation charge. But, DNA evidence did support the forcible rape charge, and T.G.'s testimony of rape was corroborated by the testimony of her sister, her friend, and the physical education teacher, and by her statement to the police the day the rape occurred. Indeed, the fact the jury could not reach a verdict on forcible oral copulation reinforces that it understood and took seriously its duty to find force in order to return a verdict of guilty.
In sum, on this record, there is no reasonable probability the jury would have reached a different result even had the trial court given an instruction on unlawful sexual intercourse with a minor. (Breverman, supra, 19 Cal.4th at pp. 178-179; Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, P.J. /s/_________
Dondero, J.