*1 S103427. Jan. [No. 2003.] Z.,
In re JOHN a Person Coming Under the Juvenile Court Law. PEOPLE, THE Plaintiff and Respondent, Z.,
JOHN Defendant and Appellant.
Counsel Foster, Court, for Defendant L. under appointment by Supreme Carol and Appellant. Anderson, General, and Robert R.
Bill David P. Druliner Lockyer, Attorney Graves, General, General, Attorney Jo Assistant Attorneys Chief Assistant McLean, G. Attorneys J. Stan Cross John Weinberg, Deputy Michael General, for Plaintiff Respondent. McClard, E. Berenson; Douglas Gina S. J. Barbara F. Murphy,
Wendy for the Beloof; McCutchen, Leslie Landau and Alison Beck G. Bingham Law the National Crime Victim Victim and Research Advocacy Group, the National Institute, Assаult and Against the California Coalition Sexual Curiae on behalf of Plaintiff Sexual Violence Resource Center Amici Respondent.
Opinion a conflict Court Appeal this case settle
CHIN, J. We granted Code, subd. rape (Pen. as to the crime forcible decisions whether § is committed if female (a)(2)) victim consents an initial penetration by male then companion, withdraws her consent an act during intercourse, but the male continues her will. against (Compare People Vela Cal.App.3d Cal.Rptr. 161](Vela) [no committed] v. Roundtree Cal.App.4th 846 921] (Roundtree) agree We [rape committed].) with Roundtree and the Court оf Appeal present case a withdrawal of effectively consent nullifies *3 earlier consent the male to subjects forcible if he rape charges in what persists has become nonconsensual intercourse. court,
The after juvenile a contested holding jurisdictional on a hearing Code, & Inst. unitary (Welf. 777, subd. on petition filed behalf (a)) §§ of John Z. found that he (defendant), Code, committed forcible rape (Pen. 261, subd. that (a)(2)) and his court previous juvenile had been disposition § ineffective. (Further undesignated statutory references are to Penal He wаs Code.) committed to Creek Crystal Ranch. On defend- Boys appeal, ant contends the evidence is insufficient to the finding sustain that he committed forcible We rape. disagree.
Facts The facts are following taken from the largely Court Appeal opinion this case. 23, 2000, the afternoon of During March T. 17-year-old Laura was at when she working Safeway G., received call from Juan she whom had met about two weeks earlier. Juan take wanted Laura to him to a party defendant’s home and then return about 8:30 him Laura p.m. pick up. take agreed to Juan sinсe but she party, attend church planned that group meeting evening she told him would be unable to him pick up. Sometime after 6:00 Laura drove p.m., Juan to defendant’s residence. Defendant and were Justin L. After present. arranging to have Justin L.’s W., alcohol, P. them stepbrother, P. buy up W. and drove him picked to the store where he bought beer. Laura told Juan she would until 8:00 stay or 8:30 beer, defendant and Juan did p.m. Although drank the not. Laura and went
During evening, Juan into defendant’s bed- parents’ room. Juan indicated he wanted sex to have but Laura told him she was not ready for kind of Juan becamе activity. and went into the upset bathroom. Laura left both the bedroom and defendant and asked Justin her why “wouldn’t do stuff.” Laura told them that she was not ready. 8:10 About was to leave p.m., Laura when defendant asked her to ready come into his bedroom talk. She complied. Defendant told her Juan that Laura her; then suggested did not care defendant had he (Juan) said to take a and defendant left entered the bedroom his Juan girlfriend. become call. phone bedroom, and Juan asked Laura to the he defendant returned
When said it was not. Juan and and Laura guys, was to hаve two fantasy clothes, kissing removing although kept Laura and began removed Laura’s boys pants them to. At some point, telling boobs” and con- “fingering” “playing underwear began [her] but objected this beginning, to kiss her. Laura enjoyed activity tinued her while fingering removed his told defendant keep when Juan pants the room defendant left Once the condom in place, he on condom. put and told him she did not of Laura. She tried resist and Juan got top his into her intercourse, penis too and forced strong want to have but was condom when, due to struggling, terminated Laura’s vagina. this,” be doing fell Juan that it’s we shouldn’t “maybe sign off. Laura told *4 Juan was (Although originally and he said “fine” and left room. G. amended codefendant, he admitted testimony at the close of victim’s 261.5, of and unlawful sexual intercourse battery 243.4) (§ charges (§ subd. (b)), misdemeanor.) clothes; bed to find her began trying
Laura rolled over on the and Defendant, do however, was unable to so. because room dark was and walked to who his then entered the bedroom clothing, had removed the bed and “he like rolled over so sitting where Laura was on [her] [she] and defend- say was back down to the bed.” Laura did nоt anything pushed “a beautiful body.” ant her and she had began kissing telling really Laura, rolled his into her “and got put penis vagina Defendant on top [her] . him.” . . “kept over so on Laura testified sitting top [she] sit . . he and get my hips it out . pulling up, trying grabbed up [a]nd back my then he rolled me back over so I was on me back down and pushed . . . . will be like you girlfriend.” “kept . and . kept saying, my me, “if did care about he really and told him that trying pull away” he should this to me and if he did want relationship, wouldn’t doing minutes, to do After about 10 wait and that I don’t want this.” respect Laura, and find her She then keys. defendant off and dress got helped drove home. entered the cross-examination, Laura testified that when defendant
On her and touched her shoulder unclothed, he down on the bed behind lay room move, He asked her lie nudge. to make her with just enough pressure kissed him back. He rolled and she did. He her and she began kissing down and, resisted, he rolled although in her on inserted his top penis over, her back her on on pulling of him. She was of him for four top top minutes, off, five time during which she tried to but he get her waist grabbed her back down. He rolled her pulled over continued the sexual home, intercourse. Laurа him that told she needed to but he go would not said, minute,” He me stop. “just said, “no, and she give I need to get home.” He me some time” and she replied, “give “no, I have to repeated, home.” Defendant did not inside of stop, just stayed me like kept “[h]e “minute, it me.” basically forcing After about a half,” minute and [a] off got Laura. testified, Defendant he and were admitting that Juan kissing fondling bedroom, Laura in the but claimed it was with her consent. He also admitted Laura, sexual intercourse with having it was again claiming consensual. He claimed he the act discontinued as soon as Laura told him that she had to go home.
Discussion
Although the evidence of Laura’s initial consent to intercourse with
John Z.
conclusive,
was hardly
we will assume for
argument
purposes
act,
consented to the
or at
impliedly
least
refrained from
tacitly
it,
until defendant
objecting
had achieved
see 261.6
penetration. (But
§
[defining
consent at issue under
type
261 as “positive cooperation in
§
act or attitude
to an
pursuant
exercise of free
As will
will”].)
appear, we
conclude
when,
that the offense of forcible
occurs
during apparently
intercoursе,
consensual
the victim
expresses
objection and
attempts
*5
the act and the
stop
continues
forcibly
objection.
the
despite
Vela,
237,
172
held that where the
supra,
Cal.App.3d
victim consents to
at
intercourse
the time
consent,
of
but
penetration
thereafter withdraws
(Id.
use of force
her assailant
is not
by
at
past
point
rape.
pp.
The court in
242-243.)
Vela found “scant
at
authority”
point (id.
p. 241),
two
relying on
out-of-state cases
had
which
held that if consent is given
prior
no
occurs
the
penetration,
rape
despite
withdrawal of consent during
intercourse itself.
(See
1266,
Battle
State
Vela with agreed these that “the essence the reasoning of crime of is the rape outrage the and of the female from person feelings resulting the nonconsensual violation of her womanhood. a female willingly When con- intercourse, sents to an act of sexual the the male cannot by penetration
761 to her nor cause outrage person of her womanhood constitute violation of intercourse the act sexual during If she consent withdraws feelings. may the female without interruption, continues act forcibly male because male the force or applied feel because of outrage certainly could feelings wishes, sense of to her outrage person but the ignores from an initial nonconsen resulting as that magnitude be of the same hardly therefore, sеem, that the essential would sual of her womanhood. It violation consent is in the withdrawn lacking as stated in . . . section 263 of guilt rape at 243.) (Vela, supra, Cal.App.3d p. scenario.” relied, it state cases on which to Vela and the two sister With due respect we First, contrary assumption, we their unsound. Vela's reasoning find suffers the level of victim measuring outrage have no of way accurately withdrawal following to continued forcible intercourse being subjected from sense of is substantial. More outrage of her consent. must assume the We of 261, defines as “an act sеxual (a)(2), section subdivision importantly, rape of the spouse perpetrator intercourse accomplished person by is (cid:127) (cid:127) (cid:127) (cid:127) (cid:127) will means [wjhere against (cid:127) (cid:127) accomplished person’s force, duress, menace, and unlawful violence, bodily of or fear of immediate act conditions the of on the or another.” in section 261 person Nothing injury states that on the the victim. Section 263 degree outrage rape “[t]he and feelings to the of the guilt outrage essential consists of the however is sufficient Any penetration, slight, victim sexual rape. crime.” has that the victim’s no California case held But complete is an element of the crime of outrage rape. Roundtree, that, recognized
In the court by supra, Cal.App.4th therefore is necessarily reason of sections crime of rape “[t]he committed her consent act during when victim withdraws statutory intercourse but is forced to the act. The complete requirements forcibly accomplished the offense are met as the of sexual intercourse is act the victim’s will. The victim against outrage complete.” (Roundtree, cases from other Roundtree cited several supra, 851.) Cal.App.4th p. State v. criticizing reaching contrary states either conclusion. (See Vela *6 865; 860, 540 State v. Jones (S.D. 1994) Crims N.W.2d (Minn.Ct.App. 1995) 662, 672; v. 35 173 A.2d Siering Conn.App. N.W.2d State (1994) 1067, 1071; 958, see also 963]; State v. Robinson 496 A.2d (Me. 1985) 77, that (Vela’s McGill v. State 18 P.3d view Ct.App. 2001) (Alaska “ ” is to victim’s ‘outrage’ sexual assault statute based on considerations “ ” conventions”]; and social ‘womanhood’ “archaic outmoded represents Clara Note, Penalty the 31 Santa Post-Penetration Rape—Increasing 779, and legislation punish L.Rev. 804-808 [criticizing advocating Velа as second degree forcible and nonconsensual intercourse postpenetration rape].)
As the stated, Court of in Appeal this case “while of the outrage victim be the may cause and severely forcible criminalizing punishing rape, is not outrage by victim an element of forcible Pursuant to section rape. 261, (a)(2) subdivision forcible occurs when the act of sexual inter- course is of the force against will victim or threat accomplished by bodily and is immaterial what injury at the victim withdraws point consent, so that is long withdrawal communicated to the male and he thereafter it.” ignores case,
In the that present assuming arguendo initially to, consented to, or to consent appeared defendant, intercourse substantial evidence shows and, that she words, withdrew her consent actions through her communicated that fact to defendant. the dissent’s doubt Despite in the 764-765, matter (dis. opn., post, no reasonable pp. 767), in defendant’s would that position have believed Laura continued to consent to the act. 354, (See People Williams Cal.4th 360-361 [14 841 P.2d reasonable belief, faith [requiring good 961] supportеd by evidence, substantial victim voluntarily consented to intercourse]; cf. CALJIC No. 10.65 As the [same].) Court below Appeal observed, court, “Given credited there testimony], by [Laura’s about her nothing withdrawal of equivocal assumed consent.” initially that, Vela to assume appears to constitute the victim’s rape, objections raised, must be aor defendant’s use force must applied, before commences, intercourse but that is flawed. One can argument clearly readily situations in which the imagine defendant is able to obtain before penetration the viсtim can express objection to resist. attempt Surely, defendant thereafter ignores victim’s objections forcibly continues act, he has committed “an act of sexual intercourse .... accomplished . . . will . .” against person’s means force . . by (§ subd. [H] (a)(2).)
Defendant, Vela’s candidly flawed contends acknowledging reasoning, that, in intercourse, cases an initial involving consent male should be permitted withdraw, “reasonable amount of time” which to once the female raises an objection further intercourse. As defendant argues, “By intercourse, essenсe of the of sexual act a male’s urge primal reproduce aroused. It is therefore for a unreasonable female and the law to expect male to cease having intercourse her withdrawal of immediately upon natural, consent. It is fair given a male be only just reasonable time amount of which to his . . . .” quell primal urge We with defendant’s Aside disagree argument. from the lack of apparent *7 for defendant’s the supporting authority “primal urge” theory, principal the of section it to contrary language is that is argument with his problem the case of section or in the language Nothing subdivision (a)(2): his in intercourse once is entitled to persist that the defendant law suggests her consent. victim withdraws time” “reasonable event, to defendant’s even were we accept
In time withdraw given case to ample he argument, clearly in present Although so resistance objections. but refused to do Laura’s despite for of he as soon as Laura objected, purposes testified withdrew Laura’s light contrary this as true in of testimony we need not accept appeal 557, 578 Cal.Rptr. Johnson 26 Cal.3d v. testimony. (E.g., аbove, testified that 738, 16 As noted 431, 606 P.2d A.L.R.4th 1255].) defendant, that he she was on but she when struggled get away top At told her down onto him. this point, her waist and grabbed pushed her wishes and if he cared about he would really respect defendant that home Thereafter, go defendant three times that needed to told stop. needed “minute.” just and that did his accept protestations at five after Laura Defendant continued the sex act for least four or minutes Laura, after third time According told him she had to home. first leave, that he needed more time she asked defendant continuеd to insist me,” of me and like for “just stayed kept basically forcing inside “minute, to the concerns about a minute half.” dissent’s Contrary [a] resisting force defendant exerted in (dis. opn., post, 767-768), pp. Laura’s the act was section clearly satisfy attempts stop ample 1217, 1224 subdivision v. Mom (See People (a)(2). Cal.App.4th 172], and cases cited different from or “substantially [force than that substantially greater necessary rape itself’].) accomplish cases, the dissent herein would more future Although prefer guidance trial, this court than is from a rather appeal juvenile аdjudication jury instructions, might and the does not address what briefing any, pinpoint these we do not Accordingly, withdrawn consent cases. appropriate recommend instructional such matters explore language governing consent, defendant’s victim’s withdrawal knowledge possibly withdrawal, time or the at which defendant nature equivocal point must cease intercourse once consent withdrawn. Vela, 237, to the extent supra, Cal.App.3d
We disapprove People Court of our judgment decision is inconsistent with opinion. is affirmed. Appeal Moreno, J., J., Kennard, J., J., and L, Baxter, Werdegar, C.
George, concurred.
764 BROWN, J., has Dissenting. A woman an absolute to to right say “no” act of commenced, sexual intercourse. After intercourse has the has right more,” absolute call a halt and “no and if she is say compelled continue, is committed. forcible rape Although California’s statutes rape neutral, are gender the criminalization of more subtle forms of sexual violence reflects a new of view women as beings autonomous “responsible, sexual, who possess right to personal, self-determination.” bodily al., et The (Berger Dimensions L. Rape Legislаtion 22 & (1988) of Reform 329, Thus, Soc’y Rev. both 330.) courts and have legislatures expanded of concept include lesser spousal degrees of and what has rape, rape, been characterized as postpenetration (See, McGill v. State rape. e.g., 77, 84; P.3d (Alaska 18 State v. 35 Ct.App. 2001) Siering (1994) Conn.App. 958, 173 962-963]; A.2d State 1067, v. Robinson 496 A.2d (Me. 1985) [644 1070-1071; State v. 860, Crims 540 (Minn.Ct.App. N.W.2d 1995) 865.)
To extent the majority holds the clear withdrawal consent nullifies earlier consent and forcible what in then becomes noncon- persistence sensual intercourse is not assault and rape, battery the Court of Apрeal 237, held in v. Vela 172 243 People (1985) 161], Cal.App.3d Cal.Rptr. [218 I concur in However, of its portion reasoning. because the majority ignores critical about questions the nature and in sufficiency proof case, I cannot rest postpenetration rape concur of the majority opinion. The is deficient majority First, in several opinion fails respects. opinion to consider whether the victim’s statements this case communi- clearly cated her Second, withdrawal of consent. there is no what define attempt constitutes force in this context. Finally, about intent are questions wrongful short given shrift.
The crime People must the elements of a prove beyond a reasonable doubt Code, 1096; (Pen. Const., case, U.S. 14th As relevant this Amend.). § an act . . intercourse . with a not the of the “Rape person spouse perpetrator” “accomplished against force, will means of person’s by duress, violence, menace, fear of immediate and bodily unlawful injury Code, 261, or another.” subd. in a (Pen. (a)(2).) Presumably, § case, postpenetration rape still has the burden of prosecution showing, doubt, beyond reasonable the victim communicated withdrawal clearly of consent and the defendant exercised some degree force continue.1 Moreover, a defendant’s reasonable good faith mistake fact regarding consent to person’s sexual intercourse is a defense v. to rape. (People 354, Williams 4 441, Cal.4th 841 961]; P.2d People Mayberry Cal.3d 154-155 Cal.Rptr. during 1 The use the “postpenetration rape” juvenile adjudication. did not term theory by Appeal. is first articulated the Court of *9 a doubt need raise reasonable only To be defendant 1337].) P.2d acquitted, Thus, to in such a convict belief in consent. as to his reasonable honest a reasonable case, beyond of such belief must absence prove the doubt. in the victim contest which these cases involve
Ordinarily, credibility matter in this judge juvenile another. The trial tells one story, its Z.’s in testimony John testimony rejected on Laura’s relied primarily to, consented or so, initially that Laura Even “assuming arguendo entirety. ante, at to, with defendant” (maj. opn., p. to consent intercourse appeared witness, case, by prosecution in this as described solely the facts 762), force. of consent and the use of doubt both about the withdrawal create its facts sordid, little case. From any perspective, is a sad distressing, This T., herself alone in a house with girl, finds 17-year-old are Laura appalling. them, Juan, is to 21. One of “sort men, age four in from 16 young ranging met near her stop workplace of’ her Laura and Juan at bus boyfriend. at the for weeks when arrived they “party” had known each other about two her drove to in own at John Z.’s house on March 2000. Laura party were Juan off and leave. The other partygoers vehicle. She planned drop aftеr Instead to Laura. John Z. was introduced to her arrived. they unknown hours. During Laura remained at John Z.’s house several leaving, in Juan, and engaged she was affectionate with sporadically evening openly Z.—in the kitchen and later the master some mutual with John kissing in the bedroom when Juan was bathroom. sulking is how she described events: subsequent This Before she decided she was leave. ready Around 8:00 p.m., walked back into door, out the asked if he could talk her. She walked John bedroom, did dark. She completely and went into his which was house not room and was willingly not ask to turn on the She еntered the light. her dark, told Juan talking. sat in the John leaving. They restrained from else could use only “using never cared about was and anyone [her] [her] her; Juan and become John’s liked she should really dump too.” John said bedroom, confronted him with Juan came into the When girlfriend. if she had ever fantasized had said. He denied it. asked boys what John not, on had but she continued sit “two Laura said she about having guys.” one or Juan and John while in John’s darkened bedroom with both bed first, At tried to items her she clothing. both of them removed various back into a couple but after bra clothing, placе replace pulling Asked she did why no to retrieve her clothes. times, she made further efforts I leave, I didn’t. didn’t think just “There is no reason. responded: not about it. I had already once, tried leave asked me to in the they bedroom and talk.” there
Feeling was “no point fighting” because there was nothing could do bed, about she laid anyway, back on the one with Juan on side of her and John the other. She did not and she say anything fighting while the resisting rest her clothing was removed. The were boys her and “fingering” her “boobs” and playing kissing her and “like just to like me trying satisfied She keep type thing.” acknоwledged that *10 activities, these enjoyed it it enjoyed threesome”; “because was like a she was laughing and liked being center of attention.
After that and prelude after she had Juan, intercourse with which ended when the condom off she him kept falling and told that was a perhaps sign they this,” “shouldn’t be we to doing come the facts form the which basis John Z.’s adjudication. Laura, to According she was on the bed sitting naked when Z. room, John came into the naked or unclothed. She had partially been her unable find clothes in the dark. John sat on the her bed behind her touched with оne hand on her shoulder. He did not her pull push backward. He her with one hand. nudged His left was in a hand cast. She back laid down on the bed. John her. She kissed him He began kissing back. climbed on of her and achieved top She did not penetration. say anything. did She him push him or strike away, slap him. He made no threats he did not hurt her. John asked her “will be repeatedly girlfriend?” you my
He over she rolled so onwas She remained in that top. four to position five minutes. he Although held her with one only hand on her waist—not hard for her to enough feel the or to create bruise—she was pressure unablе extricate herself or break the connection. There nowas conversa- tion when intercourse and she said began while she nothing was top him. When she found herself on the bottom she said: “If he again, did really me, care about he wouldn’t be this he to me and if did doing really want he should wait and that I don’t relationship, want to do this.” respect John “I do care really about She never told responded: you.” him she “officially” did not want to have sexual intercourse. later “I
Sometime she said: “I should now.” need to going go home.” John said: “Just me give later, a minute.” minutes Several she said “I again: need to “[Gjive home.” He said: get me some time.” She said: “No. I have home.” The time go third she told him she had to home go she was a little cried, more She never urgent. but she was to. “officially” starting When asked at anytime Z., while intercourse with John had him having told “no,” “No,” Laura answers: statement. repeats contingent Calling He said Z.’s John halt, responsibility. suggest, entirely her answers let it happen.” he still just “but cared about communicated clearly “actions words” finds Laura’s The majority in defendant’s fashion “no reasonable in a of consent withdrawal But, ante, Laura’s 762.) at р. (Maj. opn., could have mistaken. position” And, none be misinterpreted. could easily and ineffectual movements silent felt these words have may While Laura her statements are unequivocal. be understood reasonably could unwillingness, they clearly conveyed And, testimony Laura’s own demands for speed. for reassurance or requests Indeed, Z. what she said. how John interpreted that is precisely demonstrates if she had made ambivalence. asked demonstrates a similar When Laura had,” sex, “I I says thought that she didn’t want have clear to John did not want told him” she officially but she “never acknowledges why on redirect asked by prosecutor have sexual intercourse. When so I had to home home,” answers: “Because get “I told John got wouldn’t anything.” mom my suspect *11 a clear
Furthermore, Laura’s statements evidenced even if we assume that into consent, intercourse is not transformed rape intent to withdraw Robinson, 496 supra, a her mind. v. merely (State because woman changes 846, 1070; A.2d at v. Roundtree p. People (2000) Cal.App.4th [91 reason of Penal Code acknowledges, by As the 921].) majority Cal.Rptr.2d “ is 263, necessarily 261 and crime of therefore cоmmit- rape sections ‘[t]he an act of sexual intercourse during ted when a victim her consent withdraws of the offense but is the act. The statutory requirements complete forced is forcibly against are met as the act of sexual intercourse accomplished 851, Roundtree, ante, 761, at p. will.’” (Maj. quoting victim’s opn., p. words, rape In an act of sexual intercourse becomes italics other added.) are Under under these circumstances all elements present. case, however, it not Laura was forcibly compelled facts of this clear thаt to her instantly is that John Z. did not respond to continue. All we know time. He did home. He additional go statement that she needed requested not if Laura did did he threaten any consequences demand it. Nor comply. But, immediately. on John Z.’s failure to desist heavily relies majority soon Ten seconds? enough. not tell us how soon would have been does thing (See the same as force? A minute? Is
Thirty? persistence 1217, 1224 [suggesting Mom 80 Cal.App.4th Cal.Rptr.2d 172] than that different from or substantially greater” force must be “substantially And if we conclude the act even persistence necessary accomplish itself].) as for situation, be the same be criminalized in this should penalty should forcible Such rape? seem questions tied inextricably to the question whether a reasonable would know that the statement “I need home” should interpreted as demand to Under these circum- stop. stances, can the withdrawal of consent serve as a for both proxy compulsion and wrongful intent?
The majority finds these deficiencies insignificant because this
juve-
is a
nile
But, if
adjudication.
John Z. is
adult,
convicted of a
as an
felony
same juvenile adjudication will
qualify
Thus,
as
strike.
the absenсe of a
instructions
jury
jury
cannot
a lesser
justify
standard of proof.
In
reviewing
criminal conviction
challenged
lacking evidentiary
we review the
support
whole record
most
light
favorable to the
to determine
judgment
whether it discloses substantial evidence such that a
reasonable trier of fact could
find
guilty beyond reasonable
doubt.
v. Hillhouse
(People
27 Cal.4th