25 Cal.App.5th 783
Cal. Ct. App.2018Background
- Defendant Fleming slept at friends' house after a night of drinking; several hosts were asleep in living room while others slept in bedrooms.
- Early morning, defendant retrieved his phone, later entered the victim D.P.'s bedroom while she slept, climbed into the bed behind her, and digitally penetrated her without her knowledge or consent.
- D.P. awoke when her phone rang, discovered Fleming after pulling back the covers, screamed, and reported the incident two days later; Fleming was convicted by jury of sexual penetration by artifice, pretense, or concealment (Pen. Code § 289(f)).
- Fleming argued on appeal there was insufficient evidence of ‘‘artifice, pretense, or concealment’’ required by § 289(f), that the CALCRIM No. 1051 instruction omitted a causal-link element, and that the trial court abused discretion by discharging a juror.
- The trial court sentenced Fleming to a mitigated term of three years; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence on artifice/pretense/concealment under § 289(f) | Evidence showed Fleming stealthily entered bedroom, concealed identity, and took actions intended to make victim believe he was her husband | Passive conduct insufficient; statute requires affirmative artifice or pretense, not mere silence or stealth | Affirmed: substantial evidence supported active concealment, artifice, and pretense (facts akin to People v. Leal) |
| CALCRIM No. 1051 omission of causal-link element | Instruction as a whole required that victim submitted because she believed another known person and that defendant intended to induce that belief | Instruction failed to require jury to find defendant caused the victim’s belief (no explicit ‘‘causal connection’’ language) | Affirmed: instruction implicitly required causal link because it required both submission-for-belief and intent to induce that belief; no instructional error |
| Discharge of Juror No. 26 for nondisclosure | Court properly inquired and discharged juror for failing to disclose college friendship with law-enforcement witness; omission undermined juror neutrality | Dismissal was abuse of discretion; relationship was not material and juror’s nondisclosure excused by confusion over name | Affirmed: trial court’s factual finding of intentional nondisclosure and risk to impartiality was supported; discharge not an abuse of discretion |
| Overall due process claim | Prosecutor met burden beyond reasonable doubt on all elements; instructions and jury composition were legally adequate | Cumulative errors deprived Fleming of due process | Affirmed: no reversible error; conviction stands |
Key Cases Cited
- People v. Leal, 180 Cal.App.4th 782 (discussing artifice/pretense/concealment where defendant secretly engaged sleeping wife; supports sufficiency of concealment by stealth)
- State v. Williams, 128 N.C. 573 (illustrative common-law authority finding personation of husband by whispering/concealment supports conviction)
- State v. Navarro, 90 Ariz. 185 (similar fact pattern: stealth entry into sleeping wife’s room and sexual intercourse; supports personation/concealment theory)
- In re Winship, 397 U.S. 358 (due process requires proof of guilt beyond a reasonable doubt)
- People v. Casares, 62 Cal.4th 808 (standard for reviewing sufficiency of evidence; review in light most favorable to the verdict)