People v. John Z.

60 P.3d 183, 128 Cal. Rptr. 2d 783, 29 Cal. 4th 756, 2003 Daily Journal DAR 163, 2003 Cal. Daily Op. Serv. 129, 2003 Cal. LEXIS 2

• Court: California Supreme Court
• Decided: January 6, 2003
• Docket: S103427
• Status: Published

Opinions

Opinion

CHIN, J.

We granted this case to settle a conflict in Court of Appeal decisions as to whether the crime of forcible rape (Pen. Code, § 261, subd. (a)(2)) is committed if the female victim consents to an initial penetration by her male companion, and then withdraws her consent during an act of intercourse, but the male continues against her will. (Compare People v. Vela (1985) 172 Cal.App.3d 237 [218 Cal.Rptr. 161](Vela) [no rape committed] with People v. Roundtree (2000) 77 Cal.App.4th 846 [91 Cal.Rptr.2d 921] (Roundtree) [rape committed].) We agree with Roundtree and the Court of Appeal in the present case that a withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse.

The juvenile court, after holding a contested jurisdictional hearing on a unitary petition (Welf. & Inst. Code, §§ 602, 777, subd. (a)) filed on behalf of John Z. (defendant), found that he committed forcible rape (Pen. Code, § 261, subd. (a)(2)) and that his previous juvenile court disposition had been ineffective. (Further undesignated statutory references are to the Penal Code.) He was committed to Crystal Creek Boys Ranch. On appeal, defendant contends the evidence is insufficient to sustain the finding that he committed forcible rape. We disagree.

Facts

The following facts are largely taken from the Court of Appeal opinion in this case. During the afternoon of March 23, 2000, 17-year-old Laura T. was working at Safeway when she received a call from Juan G., whom she had met about two weeks earlier. Juan wanted Laura to take him to a party at defendant’s home and then return about 8:30 p.m. to pick him up. Laura agreed to take Juan to the party, but since she planned to attend a church group meeting that evening she told him she would be unable to pick him up.

Sometime after 6:00 p.m., Laura drove Juan to defendant’s residence. Defendant and Justin L. were present. After arranging to have Justin L.’s stepbrother, P. W., buy them alcohol, Laura picked up P. W. and drove him to the store where he bought beer. Laura told Juan she would stay until 8:00 or 8:30 p.m. Although defendant and Juan drank the beer, Laura did not.

During the evening, Laura and Juan went into defendant’s parents’ bedroom. Juan indicated he wanted to have sex but Laura told him she was not ready for that kind of activity. Juan became upset and went into the bathroom. Laura left the bedroom and both defendant and Justin asked her why she “wouldn’t do stuff.” Laura told them that she was not ready.

About 8:10 p.m., Laura was ready to leave when defendant asked her to come into his bedroom to talk. She complied. Defendant told her that Juan had said he (Juan) did not care for her; defendant then suggested that Laura become his girlfriend. Juan entered the bedroom and defendant left to take a phone call.

When defendant returned to the bedroom, he and Juan asked Laura if it was her fantasy to have two guys, and Laura said it was not. Juan and defendant began kissing Laura and removing her clothes, although she kept telling them not to. At some point, the boys removed Laura’s pants and underwear and began “fingering” her, “playing with [her] boobs” and continued to kiss her. Laura enjoyed this activity in the beginning, but objected when Juan removed his pants and told defendant to keep fingering her while he put on a condom. Once the condom was in place, defendant left the room and Juan got on top of Laura. She tried to resist and told him she did not want to have intercourse, but he was too strong and forced his penis into her vagina. The rape terminated when, due to Laura’s struggling, the condom fell off. Laura told Juan that “maybe it’s a sign we shouldn’t be doing this,” and he said “fine” and left the room. (Although Juan G. was originally a codefendant, at the close of the victim’s testimony he admitted amended charges of sexual battery (§ 243.4) and unlawful sexual intercourse (§ 261.5, subd. (b)), a misdemeanor.)

Laura rolled over on the bed and began trying to find her clothes; however, because the room was dark she was unable to do so. Defendant, who had removed his clothing, then entered the bedroom and walked to where Laura was sitting on the bed and “he like rolled over [her] so [she] was pushed back down to the bed.” Laura did not say anything and defendant began kissing her and telling her that she had “a really beautiful body.” Defendant got on top of Laura, put his penis into her vagina “and rolled [her] over so [she] was sitting on top of him.” Laura testified she “kept . . . pulling up, trying to sit up to get it out . . . [a]nd he grabbed my hips and pushed me back down and then he rolled me back over so I was on my back . . . and . . . kept saying, will you be my girlfriend.” Laura “kept like trying to pull away” and told him that “if he really did care about me, he wouldn’t be doing this to me and if he did want a relationship, he should wait and respect that I don’t want to do this.” After about 10 minutes, defendant got off Laura, and helped her dress and find her keys. She then drove home.

On cross-examination, Laura testified that when defendant entered the room unclothed, he lay down on the bed behind her and touched her shoulder with just enough pressure to make her move, a nudge. He asked her to lie down and she did. He began kissing her and she kissed him back. He rolled on top of her, inserted his penis in her and, although she resisted, he rolled her back over, pulling her on top of him. She was on top of him for four or five minutes, during which time she tried to get off, but he grabbed her waist and pulled her back down. He rolled her over and continued the sexual intercourse. Laura told him that she needed to go home, but he would not stop. He said, “just give me a minute,” and she said, “no, I need to get home.” He replied, “give me some time” and she repeated, “no, I have to go home.” Defendant did not stop, “[h]e just stayed inside of me and kept like basically forcing it on me.” After about a “minute, minute and [a] half,” defendant got off Laura.

Defendant testified, admitting that he and Juan were kissing and fondling Laura in the bedroom, but claimed it was with her consent. He also admitted having sexual intercourse with Laura, again claiming it was consensual. He claimed he discontinued the act 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. was hardly conclusive, we will assume for purposes of argument that Laura impliedly consented to the act, or at least tacitly refrained from objecting to it, until defendant had achieved penetration. (But see § 261.6 [defining the type of consent at issue under § 261 as “positive cooperation in act or attitude pursuant to an exercise of free will”].) As will appear, we conclude that the offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection.

Vela, supra, 172 Cal.App.3d 237, held that where the victim consents to intercourse at the time of penetration but thereafter withdraws her consent, any use of force by her assailant past that point is not rape. (Id. at pp. 242-243.) The court in Vela found “scant authority” on point (id. at p. 241), relying on two out-of-state cases which had held that if consent is given prior to penetration, no rape occurs despite the withdrawal of consent during intercourse itself. (See Battle v. State (1980) 287 Md. 675 [414 A.2d 1266, 1268-1270]; State v. Way (1979) 297 N.C. 293 [254 S.E.2d 760, 762].) According to Vela, these cases held that “the presence or absence of consent at the moment of initial penetration appears to be the crucial point in the crime of rape.” (Vela, supra, 172 Cal.App.3d at p. 242.)

Vela agreed with these cases, reasoning that “the essence of the crime of rape is the outrage to the person and feelings of the female resulting from the nonconsensual violation of her womanhood. When a female willingly consents to an act of sexual intercourse, the penetration by the male cannot constitute a violation of her womanhood nor cause outrage to her person and feelings. If she withdraws consent during the act of sexual intercourse and the male forcibly continues the act without interruption, the female may certainly feel outrage because of the force applied or because the male ignores her wishes, but the sense of outrage to her person and feelings could hardly be of the same magnitude as that resulting from an initial nonconsensual violation of her womanhood. It would seem, therefore, that the essential guilt of rape as stated in . . . section 263 is lacking in the withdrawn consent scenario.” (Vela, supra, 172 Cal.App.3d at p. 243.)

With due respect to Vela and the two sister state cases on which it relied, we find their reasoning unsound. First, contrary to Vela's assumption, we have no way of accurately measuring the level of outrage the victim suffers from being subjected to continued forcible intercourse following withdrawal of her consent. We must assume the sense of outrage is substantial. More importantly, section 261, subdivision (a)(2), defines rape as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator • • • • [10 • • • [wjhere it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” Nothing in section 261 conditions the act of rape on the degree of outrage of the victim. Section 263 states that “[t]he essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.” But no California case has held that the victim’s outrage is an element of the crime of rape.

In Roundtree, supra, 77 Cal.App.4th 846, the court recognized that, by reason of sections 261 and 263, “[t]he crime of rape therefore is necessarily committed when a victim withdraws her consent during an act of sexual intercourse but is forced to complete the act. The statutory requirements of the offense are met as the act of sexual intercourse is forcibly accomplished against the victim’s will. The outrage to the victim is complete.” (Roundtree, supra, 77 Cal.App.4th at p. 851.) Roundtree cited several cases from other states either criticizing Vela or reaching a contrary conclusion. (See State v. Crims (Minn.Ct.App. 1995) 540 N.W.2d 860, 865; State v. Jones (S.D. 1994) 521 N.W.2d 662, 672; State v. Siering (1994) 35 Conn.App. 173 [644 A.2d 958, 963]; State v. Robinson (Me. 1985) 496 A.2d 1067, 1071; see also McGill v. State (Alaska Ct.App. 2001) 18 P.3d 77, 84 (Vela’s view that sexual assault statute is based on considerations of “ ‘outrage’ ” to victim’s “ ‘womanhood’ ” represents “archaic and outmoded social conventions”]; Note, Post-Penetration Rape—Increasing the Penalty (1991) 31 Santa Clara L.Rev. 779, 804-808 [criticizing Vela and advocating legislation to punish forcible and nonconsensual postpenetration intercourse as second degree rape].)

As the Court of Appeal in this case stated, “while outrage of the victim may be the cause for criminalizing and severely punishing forcible rape, outrage by the victim is not an element of forcible rape. Pursuant to section 261, subdivision (a)(2) forcible rape occurs when the act of sexual intercourse is accomplished against the will of the victim by force or threat of bodily injury and it is immaterial at what point the victim withdraws her consent, so long as that withdrawal is communicated to the male and he thereafter ignores it.”

In the present case, assuming arguendo that Laura initially consented to, or appeared to consent to, intercourse with defendant, substantial evidence shows that she withdrew her consent and, through her actions and words, communicated that fact to defendant. Despite the dissent’s doubt in the matter (dis. opn., post, at pp. 764-765, 767), no reasonable person in defendant’s position would have believed that Laura continued to consent to the act. (See People v. Williams (1992) 4 Cal.4th 354, 360-361 [14 Cal.Rptr.2d 441, 841 P.2d 961] [requiring reasonable and good faith belief, supported by substantial evidence, that the victim voluntarily consented to intercourse]; cf. CALJIC No. 10.65 [same].) As the Court of Appeal below observed, “Given [Laura’s testimony], credited by the court, there was nothing equivocal about her withdrawal of any initially assumed consent.”

Vela appears to assume that, to constitute rape, the victim’s objections must be raised, or a defendant’s use of force must be applied, before intercourse commences, but that argument is clearly flawed. One can readily imagine situations in which the defendant is able to obtain penetration before the victim can express an objection or attempt to resist. Surely, if the defendant thereafter ignores the victim’s objections and forcibly continues the act, he has committed “an act of sexual intercourse accomplished .... [H] . . . against a person’s will by means of force . . . .” (§ 261, subd. (a)(2).)

Defendant, candidly acknowledging Vela’s flawed reasoning, contends that, in cases involving an initial consent to intercourse, the male should be permitted a “reasonable amount of time” in which to withdraw, once the female raises an objection to further intercourse. As defendant argues, “By essence of the act of sexual intercourse, a male’s primal urge to reproduce is aroused. It is therefore unreasonable for a female and the law to expect a male to cease having sexual intercourse immediately upon her withdrawal of consent. It is only natural, fair and just that a male be given a reasonable amount of time in which to quell his primal urge . . . .”

We disagree with defendant’s argument. Aside from the apparent lack of supporting authority for defendant’s “primal urge” theory, the principal problem with his argument is that it is contrary to the language of section 261, subdivision (a)(2): Nothing in the language of section 261 or the case law suggests that the defendant is entitled to persist in intercourse once his victim withdraws her consent.

In any event, even were we to accept defendant’s “reasonable time” argument, in the present case he clearly was given ample time to withdraw but refused to do so despite Laura’s resistance and objections. Although defendant testified he withdrew as soon as Laura objected, for purposes of appeal we need not accept this testimony as true in light of Laura’s contrary testimony. (E.g., People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) As noted above, Laura testified that she struggled to get away when she was on top of defendant, but that he grabbed her waist and pushed her down onto him. At this point, Laura told defendant that if he really cared about her, he would respect her wishes and stop. Thereafter, she told defendant three times that she needed to go home and that she did not accept his protestations he just needed a “minute.” Defendant continued the sex act for at least four or five minutes after Laura first told him she had to go home. According to Laura, after the third time she asked to leave, defendant continued to insist that he needed more time and “just stayed inside of me and kept like basically forcing it on me,” for about a “minute, minute and [a] half.” Contrary to the dissent’s concerns (dis. opn., post, at pp. 767-768), the force defendant exerted in resisting Laura’s attempts to stop the act was clearly ample to satisfy section 261, subdivision (a)(2). (See People v. Mom (2000) 80 Cal.App.4th 1217, 1224 [96 Cal.Rptr.2d 172], and cases cited [force “substantially different from or substantially greater than that necessary to accomplish the rape itself’].)

Although the dissent herein would prefer more guidance for future cases, this is an appeal from a juvenile court adjudication rather than a jury trial, and the briefing does not address what pinpoint instructions, if any, might be appropriate in these withdrawn consent cases. Accordingly, we do not explore or recommend instructional language governing such matters as the defendant’s knowledge of the victim’s withdrawal of consent, the possibly equivocal nature of that withdrawal, or the point in time at which defendant must cease intercourse once consent is withdrawn.

We disapprove People v. Vela, supra, 172 Cal.App.3d 237, to the extent that decision is inconsistent with our opinion. The judgment of the Court of Appeal is affirmed.

George, C. J., Kennard, L, Baxter, J., Werdegar, J., and Moreno, J., concurred.