25 Cal. App. 5th 783
Cal. Ct. App. 5th2018Background
- Defendant Russell Dusty Fleming was convicted by a jury under Penal Code §289(f) for digitally penetrating D.P. while she slept in her bed, believing the person touching her was her husband.
- Incident facts: after a party, the husband (Blake) slept on the couch; Fleming retrieved his phone, later entered the house/bedroom stealthily, climbed into the bed behind D.P., and digitally penetrated her while she faced the wall and was asleep. D.P. only discovered Fleming when she reached for her phone and pulled back the covers.
- D.P. testified she did not consent, was shocked, reported the incident two days later, and had not had a sexual relationship with Fleming. Fleming had been a long-time friend of Blake and had been in their wedding.
- Fleming asserted on appeal there was insufficient evidence of artifice, pretense, or concealment as required by §289(f), and argued the jury instruction CALCRIM No. 1051 failed to require a causal link between his conduct and the victim’s belief; he also raised a juror-bias removal claim (addressed in unpublished portion).
- The trial court sentenced Fleming to a mitigated term of three years; the appellate court affirmed in published portion, holding substantial evidence supported the §289(f) element of artifice/pretense/concealment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was substantial evidence of artifice, pretense, or concealment under §289(f) | Prosecution: defendant stealthily entered, hid his identity, and used those means to induce D.P. to submit, so evidence supports artifice/pretense/concealment | Fleming: passive presence while the victim was asleep is not affirmative artifice or concealment; jury instruction required more active deception | Affirmed: court found sufficient evidence of deliberate plan, concealment (including refraining from disclosure and covering himself), and pretense; reasonable juror could infer deception and intent |
| Whether CALCRIM No. 1051 omitted an element requiring a causal link between defendant’s conduct and victim’s belief | Prosecution: instruction correctly states statutory elements after 2013 amendment | Fleming: instruction failed to require jurors to find his acts caused the victim’s belief | Rejected (in published portion): no reversible instructional error as instruction tracked statute and evidence supported causal inference |
| Whether removal of a juror for bias was supported by evidence | Prosecution: trial court properly excused biased juror (discussion in unpublished portion) | Fleming: court abused discretion by removing juror unsupported by record | Rejected (unpublished): appellate court affirmed removal (court found no reversible error) |
| Due process sufficiency challenge to conviction | Prosecution: testimony and circumstantial evidence suffice under standards for criminal convictions | Fleming: single-witness testimony and circumstantial inference insufficient given possible alternative explanations | Rejected: appellate standard (viewing evidence in light most favorable to verdict) satisfied; conviction upheld |
Key Cases Cited
- People v. Leal, 180 Cal.App.4th 782 (court of appeal holding stealth entry and sexual act on sleeping spouse-figure supports conviction for sexual penetration by artifice/pretense/concealment)
- State v. Williams, 128 N.C. 573 (North Carolina 1901) (defendant who lay next to sleeping wife and personated husband – submitted by belief induced by defendant – supports fraud-in-personation conviction)
- State v. Navarro, 90 Ariz. 185 (Arizona 1961) (stealth entry and immediate sexual act on sleeping spouse while husband in another room supports conviction)
- In re Winship, 397 U.S. 358 (1970) (proof beyond a reasonable doubt is required for criminal convictions)