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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Christopher Ray FOWLER, Defendant and Appellant.

No. B030674.

Decided: January 31, 1989

Harvey Zall, State Public Defender, Billie Jan Goldstein, Deputy State Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert F. Katz, Supervising Deputy Atty. Gen., and Stephen M. Kaufman, Deputy Atty. Gen., for plaintiff and respondent.

Christopher Ray Fowler appeals from his convictions of attempted murder, rape, residential burglary and residential robbery, with findings that he intentionally inflicted great bodily injury as to each count.

He contends:

1. The alternate juror's presence during the jury's deliberation violated his right to a jury trial.

2. The exclusion from evidence of his co-perpetrator's confession violated his right to present a defense.

3. The jury was not properly instructed by CALJIC No. 3.00 on the specific intent of aiding and abetting an attempted murder.

4. The court erred in refusing his modified instruction which applied CALJIC No. 3.00 to the facts of this case.

5. The failure to provide CALJIC Nos. 6.00 and 17.10 in writing to the jury violated his right to a fair trial.

6. He was prejudiced by the admission of a photograph of the victim.

7. The court erred by imposing a full consecutive sentence on the single sexual offense pursuant to Penal Code section 667.6, subdivision (c).

8. The court erred by imposing sentence on both the attempted murder and the rape, and by imposing concurrent great bodily injury enhancements.

9. The court erred by stating improper reason for imposing the upper term on the rape count.

10. The court erred by invoking section 667.6 without a statement of reasons.

We modify the sentence and affirm the judgment in all other respects.

Viewing the evidence most favorably to the verdict, early in the morning of June 28, 1986, appellant and Tracy Foley broke into the Santa Monica apartment of the victim, Lisa O.   One of the two burst into Lisa's bedroom as she was sleeping and began striking her on the head.   She saw the other man emerge from her roommate's bedroom with her roommate's jewelry box.

Lisa blacked out.   When she regained consciousness Foley was holding her down by her shoulders while Fowler tried to penetrate her vagina with his penis.   Foley was trying to muffle her screams;  she bit his hand.   Foley picked up a clothes iron and beat her about the head with it.   Lisa faded in and out of consciousness.   Fowler turned her over and tried to sodomize her.

Lisa lost consciousness.   Her attackers tried to strangle her with the iron cord.   She was discovered around noon, unconscious, the cord around her neck, dried blood on her face, and her panties about her knees.   She was rushed to UCLA Medical Center, where doctors managed to save her life.

Lisa was examined for possible sexual assault.   The examining doctor found a recent laceration of the hymenal ring, which she concluded was consistent with a sexual assault.

When Lisa regained consciousness several days later she had no memory of the attack.   Only gradually, piece by piece did she recall what happened to her.   At trial Lisa made a deliberate effort to distinguish her own recollections from information friends and family had imparted.

The police arrested appellant on July 2 after finding his fingerprints on the apartment window and in the kitchen.   Appellant was advised of his constitutional rights, which he waived.   In response to questioning appellant denied having been in Santa Monica since the previous week, when he came to visit his girlfriend.   He subsequently admitted that he had been in Santa Monica with Foley early on June 28 but denied breaking into any apartments.   He said that he watched Foley enter the kitchen window of an apartment.   He continued that Foley later told him that Foley had beaten a girl in the apartment, she had bitten him, and he had raped her after he beat her.

The police told appellant that they had found his fingerprint on the kitchen window screen.   Appellant admitted touching the window, but claimed that he left immediately thereafter.   When the police informed him that they had found his fingerprint inside the apartment, appellant admitted that he had gone in through the window and had stolen a telephone and an answering machine.   He denied doing “whatever happened to this woman.”

Based on appellant's statement the police arrested Foley.   While being transported in a police car Foley tried to discard a ring under the seat.

Foley initially denied any knowledge of the crimes, and denied having been in Santa Monica that night.   The police told Foley that if they discovered that he had lied, it would make matters worse.   They further pointed out that his friend Fowler was singing like a bird.

Foley then changed his story:  he and appellant went to Santa Monica and while there noticed an open window.   Appellant went into the apartment through the window and let Foley in by the front door.   Foley went upstairs and into the bedroom.   Foley stated he choked the victim, but did not rape her.  “Nobody raped her.”   He admitted that the victim bit him on the hand.   He denied hitting her.

The police asked Foley how Lisa O. got in the condition in which the police found her.   He denied any further involvement with the victim.   He denied taking down the victim's underwear.   When told that a cord had been wrapped around the victim's neck, he replied, “Yeah, I didn't do that.”

He denied taking any of the victim's property, but when asked about the ring he had dropped in the police car, he admitted that it had come from the victim's apartment.   Foley stated that appellant gave it to him.   He said that he had at home another ring taken from the victim's residence.

Under continued questioning Foley said that he and appellant had discussed making some money, and appellant told him to “watch his back.”   He repeated his story about going upstairs and choking the victim for about three minutes, just to keep her quiet.   He then ran downstairs and out of the house.

The police confronted Foley with the fact that he had lied at first, claiming not to know anything but the burglary, rape, or assault.   They also mentioned that appellant told the police that Foley had raped the victim.   Foley denied raping the victim.

At a hearing pursuant to Evidence Code section 402 prior to trial, Foley was called as a witness, but refused to testify.   The trial court denied appellant's motion to admit into evidence a tape recording of Foley's post-arrest statement to police.

The defense presented expert testimony on memory and perception, intended to cast doubt on Lisa's version of what happened.   Appellant testified that he broke into the apartment and stole an answering machine.   Foley went upstairs;  when appellant heard a scream he ran out of the apartment.   A few days later Foley told him that he had beaten a girl in the apartment.

After the jury was instructed, over defense objection the court sent the alternate juror into the jury room with instructions to listen to the jury's deliberations, but not to participate.

After the jury delivered its guilty verdicts, the court sentenced appellant as follows:

(a) Nine years, the full upper term, for attempted murder;

(b) Eight years, the full upper term, for rape, to run consecutively;

(c) Sixteen months, one third the midterm, for burglary, to run consecutively;

(d) Sixteen months, one third the midterm, for robbery, stayed pursuant to Penal Code section 654.

(e) The court sentenced appellant to a five-year enhancement on the rape count, to run consecutively.

Three-year enhancements were imposed on the other three counts, all to run concurrently.

Appellant's total sentence was twenty-three years, four months.   We will adduce additional facts as needed.

Appellant's first claim is that the presence of the alternate juror during the jury's deliberations constituted per se reversible error.

Appellant accurately represents the law as stated in People v. Britton (1935) 4 Cal.2d 622, 52 P.2d 217.   In Britton our Supreme Court held that the intrusion of the alternate juror impermissibly trenched on the defendant's right to trial by jury, even if she was forbidden to participate in the deliberations in any way.  (Id., at p. 623, 52 P.2d 217.)   The law today, however, is otherwise.

In People v. Valles (1979) 24 Cal.3d 121, 154 Cal.Rptr. 543, 593 P.2d 240, our Supreme Court held that the defendant could stipulate to the presence of the alternate juror in the jury room during deliberations.   In the face of such a stipulation, Valles was estopped from complaining.  (Id., at p. 123, 154 Cal.Rptr. 543, 593 P.2d 240.)

The following remarks by the court are particularly pertinent:  “[W]e conclude the presence of alternates in the jury room during deliberations is not necessarily detrimental to a defendant's right of trial by jury․”  (Id., at p. 125, 154 Cal.Rptr. 543, 593 P.2d 240.)  “The alternate should, of course, be instructed that he is not to participate in the jury's deliberations in any manner except by silent attention unless he is required by the court to take the place of an original juror.   If this instruction is disobeyed, the standard rule concerning juror misconduct applies, namely, that it is presumed prejudicial to the defendant unless the contrary appears.”  (Id., at p. 128, 154 Cal.Rptr. 543, 593 P.2d 240, emphasis added.)

 These excerpts make clear the fact that the Supreme Court has abandoned the per se reversible error rule of Britton.   Unless it is shown that the alternate unauthorizedly participated in the jury's deliberations, or otherwise misbehaved, there is no showing of prejudice to the defendant.   No prejudice, no reversal.  (See People v. Oliver (1987) 196 Cal.App.3d 423, 241 Cal.Rptr. 804 [presence in jury room of court reporter not per se reversible error;  “rebuttable presumption of prejudice” test adopted].)

 At bench, the alternate prior was told not to participate in the jury's discussion.   Nothing in the record tends to show that this instruction was disobeyed.   Thus, under Valles, no presumption of prejudice arises.   Under these circumstances the error was harmless.

 We note, however, that while the trial court stated that “there is case authority for that practice,” in fact there is none.   The jury must resume its deliberations from the beginning if the alternate is substituted in (People v. Collins (1976) 17 Cal.3d 687, 694, 131 Cal.Rptr. 782, 552 P.2d 742), in order to permit her to fully participate.   Therefore, letting the alternate listen to but not partake of the jury's discussion has virtually no utility.   The trial court should not require an erroneous procedure, even if it is likely to be harmless.

 Appellant's second contention is that Foley's confession should have been admitted as a declaration against penal interest, and thus exempt from the bar against hearsay evidence.   Appellant wanted the jury to hear Foley's statement because in it Foley stated that he alone choked Lisa, and that no one had raped her.

Evidence Code section 1230 states in part:  “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made ․ so far subjected him to the risk of civil or criminal liability ․ that a reasonable man in his position would not have made the statement unless he believed it to be true.”  (Emphasis added.)   In People v. Chapman (1975) 50 Cal.App.3d 872, 123 Cal.Rptr. 862 we held that the emphasized portion of the text is “codification of the requirement of trustworthiness as a condition precedent to the admissibility of such declarations.”  (Id., at p. 878, 123 Cal.Rptr. 862.)   This trustworthiness is a preliminary question of fact to be resolved by the judge pursuant to Evidence Code section 405.   This resolution determines the admission or exclusion of the proffered evidence.  (Id., at p. 879, 123 Cal.Rptr. 862.)   In making this preliminary determination, the court need not focus narrowly on the words uttered, but should consider all the attendant circumstances, including the declarant's likely motive.  (Ibid.)  The trial court's determination must be upheld unless an abuse of discretion is shown.   (People v. Blagg (1970) 10 Cal.App.3d 1035, 1039, 89 Cal.Rptr. 446.)

In ruling on the motion to admit the tape of Foley's statement, the trial court stated:  “In listening to the tape I made the following observations:  First, Mr. Foley initially denied any responsibility whatsoever for the commission of any act.   Second, as time passed, he admitted culpability for the unlawful entry, but denied any responsibility for the sexual assaults.   Third, he initially, after initially denying the unlawful taking of personal property, he was confronted with the discovery of the ring which he had unsuccessfully attempted to disclose [sic] of in the police vehicle, whereupon that fact having been brought to his attention, he agreed to divulge more details.


“Anyway, it seemed to me that his co-suspect went from the range of total disclaimer for any culpability to modest acknowledgment when confronted with the facts, largely because of this defendant's inculpatory statement, to a more, to a greater agreement of culpability with respect to the ring, and to other personal property.

“I just feel that listening to that, and running through the gamut of total denial to partial responsibility, does not give it the sense of trustworthiness that I think it should have.”

The trial court's determination of untrustworthiness is supported by the evidence.   It is plain that Foley intended to deny all blame, then was forced bit by bit to tell as little of the truth as he thought he could get away with.  (In this respect his statement closely resembles appellant's.)   Obviously, truthfulness and trustworthiness are Siamese twins, virtually inseparable.   The court below was justified in concluding that the cynical and evasive character of Foley's statement rendered it unworthy of belief, and thus inadmissible.   Appellant was not precluded from presenting a defense;  he was precluded from introducing hearsay evidence in support thereof.

 Appellant asserts that the trial court is not authorized to exclude evidence merely because it finds the witness hard to believe, citing People v. Sassounian (1986) 182 Cal.App.3d 361, 226 Cal.Rptr. 880.   In that case the witness' credibility was properly a jury question, because the witness gave live testimony subject to cross-examination.   But when hearsay evidence, in the form of a co-suspect's confession, is sought to be introduced, the court must first assess its reliability, and a hard look at the declarant's credibility is a proper part of that assessment.

Appellant next complains about the jury instructions.   First, he objects to the following language in CALJIC No. 3.00:  “One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and probable consequences of any act that he knowingly and intentionally aided or encouraged.”   He claims that since attempted murder requires the specific intent to kill (People v. Collie (1981) 30 Cal.3d 43, 61–62, 177 Cal.Rptr. 458, 634 P.2d 534), he could not be guilty of attempted murder if the crime were merely the natural and probable consequence of an act he intentionally aided without harboring the intent to kill.

This issue has been decided adversely to appellant.  (People v. Hammond (1986) 181 Cal.App.3d 463, 467–468, 226 Cal.Rptr. 475.)

Next, appellant feels aggrieved because the trial court refused to add the following language to CALJIC No. 3.00:

“In the case herein, the defendant is charged with the commission of four crimes:  attempted murder, rape, burglary, and residential robbery.   The defendant has admitted committing the burglary and the residential robbery but has denied committing the attempted murder and the rape.

“In order for you to convict the defendant of the attempted murder and/or the rape you must be convinced beyond a reasonable doubt either:

“(1) that he directly and actively committed the act constituting the attempted murder and/or rape, or

“(2) that he aided and abetted the perpetrator in the commission of the attempted murder and/or rape, or

“(3) that the attempted murder and/or the rape were the natural and probable consequences of the burglary and/or the residential robbery.

“In order to convict the defendant of a crime as a natural and probable consequence of another criminal act you must be convinced beyond a reasonable doubt that the charged crime is a natural and probable consequence of the other criminal act.   If you find that the attempted murder and/or the rape was not a natural and probable consequence of the burglary and/or the residential robbery, or if you have a reasonable doubt as to whether or not the attempted murder and/or the rape was a natural and probable consequence of the burglary and/or the residential robbery, you may not convict the defendant of the attempted murder or the rape.”

 The trial court properly exercised its discretion in refusing this instruction.   A party is not entitled to dictate the precise language in which the jury is instructed.  (People v. Partlow (1978) 84 Cal.App.3d 540, 558, 148 Cal.Rptr. 744.)   Moreover, there is no error in omitting an instruction if its substance is adequately set out in other, given instructions.  (Ibid.)  Appellant in his reply brief concedes that the given instructions “convey the concepts in appellant's requested instruction,” albeit “in an abstract way”.   The concession is fatal to the assignment of error.

 Appellant's final instructional complaint is that while the court read to the jury CALJIC Nos. 6.00 (defining attempt) and 17.10 (attempted rape is a lesser included offense to rape), these instructions were not provided in written form to the jury.   Appellant argues that the jury in effect was not instructed on attempted rape, which he contends was prejudicial because there was evidence from which the jury might have concluded that the element of penetration was lacking.

The trial court must instruct the jury on any lesser included offense which the evidence tends to prove.   Evidence on the lesser offense must attain a level sufficient to serve consideration by the jury.  (People v. Turner (1983) 145 Cal.App.3d 658, 679, 193 Cal.Rptr. 614.)

We do not believe that the evidence required instruction on attempted rape.   Appellant bases this claim on Lisa's testimony that he was “trying” to penetrate her vagina, but “basically couldn't,” and he was angry and frustrated.

The merest penetration, however slight, establishes the crime of rape.  (Pen.Code § 263.)  “The penetration which is required is sexual penetration and not vaginal penetration.   Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.”  (People v. Karsai (1982) 131 Cal.App.3d 224, 232, 182 Cal.Rptr. 406.)   It is literally beyond belief that appellant was unable to achieve this slight degree of penetration when his victim was being held down by an accomplice who was simultaneously battering her into intermittent periods of unconsciousness.   When Lisa said that appellant “tried” to penetrate her she surely meant vaginal penetration, which is the common understanding of the term, but which is more than the statutory definition of rape requires.   In short, we find no error.

 Appellant next objects to the introduction into evidence of a photograph of his victim.   The photo depicts Lisa in a hospital bed.   Her head and neck are visible, showing signs of trauma.   Tubes have been inserted into her month;  tape across her cheeks and lips hold them in place.   She is apparently unconscious.   Appellant argues that since her medical condition was fully explained through her doctors' testimony, the photograph was cumulative and inflammatory, tending to excite the jury's sympathy for Lisa and consequently its anger at appellant.   It should therefore have been excluded under Evidence Code section 352, which states in part:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ․ (b) create substantial danger of undue prejudice․”

During argument out of the jury's presence, when the prosecutor stated that the photograph was not unduly gruesome or bloody, defense counsel stated:  “That is not my objection.   My objection is that it has no relevancy.   I am not objecting on 352—”  Having explicitly waived section 352, appellant cannot invoke it for the first time on appeal.

Considering the objection as one of relevance only, the trial court has wide discretion in determining whether offered evidence is relevant.  (People v. Green (1980) 27 Cal.3d 1, 19, 164 Cal.Rptr. 1, 609 P.2d 468.)

 The prosecution argued the photo's admissibility as follows:  “The relevancy of the photograph in question is that there has been an attack on the adequacy and accuracy of the recollection of Lisa as to the entire event really.   It isn't just isolated as to the identification.   And this corroborates our contention and Lisa's testimony that her memory has been gradually improving since two week after the assault when she had no recollection whatsoever, to her memory as it exists today.”   We cannot say that the trial court abused its discretion in adopting this theory of admissibility.

Finally, appellant asserts that the court below made several errors in sentencing him.

Appellant argues that a full, consecutive sentence on the rape count cannot be imposed pursuant to Penal Code section 667.6, subdivision (c), because a single sex offense cannot be punished under that section.

The point has been decided adversely to appellant.  (People v. Jones (1988) 46 Cal.3d 585, 600, 250 Cal.Rptr. 635, 758 P.2d 1165.)

 Appellant contends that it was improper to sentence him for both the rape and attempted murder.  Penal Code section 654 prohibits multiple punishment for offenses committed during an indivisible course of conduct.   The divisibility of a course of conduct depends on whether the criminal had multiple criminal objections.  (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63.)   This is a factual determination for the trial court, to be affirmed if supported by substantial evidence.  (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 815–816, 177 Cal.Rptr. 627.)

The evidence supports the implied findings.   The rape was committed for sexual gratification and/or to humiliate and torture Lisa;  the attempt to kill her was designed to avoid discovery and punishment.   There was no error.

 Appellant correctly contends that section 654 prohibits multiple sentence enhancements for a single great bodily injury.  (People v. Moringlane (1982) 127 Cal.App.3d 811, 819, 179 Cal.Rptr. 726.)   The trial court agreed with the prosecutor that “the factual situation that gave rise ․ to the enhancement allegations is the same with respect to all counts.”   Therefore the court should have stayed three of the enhancements instead of ordering them to run concurrently.  (People v. Avila (1982) 138 Cal.App.3d 873, 878, 188 Cal.Rptr. 754.)   We must therefore modify the sentence to correct this rather minor error.

 Appellant asserts that the court did not state proper reasons for imposing the upper term on the rape count and did not state reasons for using the harsher section 667.6 sentencing option.   There is some merit to these contentions.   However, when the record clearly supports the sentencing decision, and there is no reasonable possibility that appellant's sentence would be reduced on remand, any error is harmless.  “We are unwilling to remand the case merely to require the trial court to adhere to a formal ritual, with the same result.”  (People v. Preyer (1985) 164 Cal.App.3d 568, 577, 210 Cal.Rptr. 807.)

Putting this case in perspective, defendant and a confederate broke into a residence to steal, and when they found a young, sleeping woman, they pitilessly beat her, raped her, and tried to strangle her.   Appellant is undeservedly lucky that he did not face a murder trial, with a possible death penalty.   This victim did not die, not through her tormentors' lack of effort, but only because of her skilled physicians, their advanced technology, and her sheer will to live.   Even in an aged, jaded world, the gratuitous brutishness of appellant and his crime still commands the power to horrify.   We are satisfied that a more favorable sentence on remand is impossible.   No remand is required.  (People v. Veley (1984) 157 Cal.App.3d 1046, 1051, 204 Cal.Rptr. 83.)

The judgment is modified to stay the enhancements on counts I, III and IV.   In all other respects the judgment is affirmed.

ROTH, Presiding Justice.

COMPTON and FUKUTO, JJ., concur.

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