Reset A A Font size: Print

Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Thomas Bradford VOLK, Defendant and Appellant.

No. D012836.

Decided: October 16, 1991

Anthony J. Dain and David Rankin, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Keith I. Motley, Robert M. Foster and Peter Quon, Jr., Deputy Attys. Gen., for plaintiff and respondent.

Thomas Bradford Volk appeals from his jury conviction of two counts of penetration of Dolores C.'s vagina with a foreign object.  (Pen.Code,1 § 289, subd. (a).)

At approximately 9 p.m. on February 17, 1990, Dolores left her restaurant at 30th and University with the day's receipts, approximately $1,150.   While driving home, she discovered a man later identified as Volk in the rear seat.   He grabbed her throat, placed a sharp object to her neck and forced her to keep driving.   Eventually he had her move to the passenger seat and he drove to a motel room.   Inside the room, Volk ordered Dolores to sit on the bed.   He watched a pornographic movie on television.   He ordered Dolores to remove her blouse.   He removed her bra.   He ordered her to remove her slacks.   He removed her underpants.   He fondled her breasts, orally copulated her and ordered her to put a finger into her vagina.   She complied.   After saying, “That looks good,” he ordered her to “put two fingers in.”   He then masturbated himself and raped Dolores.   After he ejaculated and Dolores cleaned herself, Volk took her back near her restaurant and dropped her off.   On the way he took $400 to $500 from her purse.   Dolores went to a hospital.   The police interviewed her, found the motel, found a screwdriver on the table in Volk's room and arrested him.

The jury convicted Volk of kidnapping (§ 207), forcible oral copulation (§ 288a, subd. (c)), two counts of rape with a foreign object (§ 289, subd. (a)), forcible rape (§ 261, subd. (a)(2)) and robbery (§ 211).   It found true charges Volk personally used a deadly weapon during all of the crimes (§§ 12022.3, subd. (a) & 12022, subd. (b)) and that Volk committed the sex crimes while the victim was kidnapped (§ 667.8, subd. (a)).  Volk waived jury on prior convictions.   The court found he had served two prior prison terms for serious sex crimes (§§ 667.5, subd. (b) & 667.6, subd. (b)).  It sentenced him to serve 74 years in prison:  the five-year upper term for robbery with full consecutive upper term eight-year sentences for rape, two counts of rape with a foreign object and oral copulation;  enhanced by three years for orally copulating the victim while she was kidnapped, three four-year terms for use of a weapon while orally copulating Dolores and forcing penetration of her vagina with a foreign object, two one-year terms for using a weapon during rape and robbery and two ten-year terms for the prior serious felony convictions (§ 667.6, subd. (b)).

Volk raises several contentions on appeal.   First, he argues that the placing of one's fingers into her own vagina does not come within the definitional provision of section 289, subdivision (a).   Second, Volk contends that the conviction under section 289, subdivision (a) cannot stand because the evidence fits a more specific statute, sexual battery as set forth in section 243.4.   When the same act is covered by a general and a specific statute, Volk contends, prosecution must be based on the specific statute.   Volk's final contentions relate to the question of the number of penetrations.   He contends the evidence does not support a finding of two separate penetrations and argues that the instructions on this subject were prejudicially inadequate.

 Volk argues section 289, subdivision (a) does not apply when a defendant forces a victim to place her own finger in her vagina.   We disagree.

Section 289, subdivision (a) provides:

“Every person who causes the penetration, however slight, of the genital or anal openings of any person or causes another person to so penetrate the defendant's or another person's genital or anal openings for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person or where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.”

Volk does not deny he caused Dolores to penetrate her vagina with her finger.   Rather, he argues the statute requires either the defendant penetrate the victim's vagina or a third person be involved.   He argues it does not prohibit a defendant from forcing a victim to penetrate her own vagina.   We disagree with Volk's reading of the statute.   The crime is committed when a “person causes the penetration of the genital or anal opening ․ of any person.”   Elemental concepts of causation support the conclusion that when a person by threat of harm coerces another into putting her fingers into her vagina, he has “caused” the penetration.

 Volk next argues that he was convicted under the wrong statute.   The contention is that since section 243.4, subdivision (c) specifically outlaws forcing another to masturbate, prosecution must be limited to this section rather than the more general provisions of section 289 based on the analysis posited in People v. Ruster (1976) 16 Cal.3d 690, 694, 129 Cal.Rptr. 153, 548 P.2d 353.   In Ruster, the defendant fraudulently submitted applications for and obtained unemployment insurance benefits, and was convicted under the more general Penal Code sections governing grand theft and forgery.   The Ruster court concluded that because a more specific “special” statute (i.e., Unemployment Insurance Code section 2101) criminalized the same conduct which was prosecutable under the more general Penal Code statutes, the court should uphold the legislative intent of the special statute by compelling the People to prosecute the criminal conduct under the special statute.   Volk argues Ruster is controlling because section 234.4 is a special statute more specifically applicable to his conduct, and hence he cannot be convicted under the more general statute, section 289.   Volk's reliance on the so-called “special statute” principles discussed in Ruster is misplaced for two separate reasons.

 First, the rule that a special statute supplants a general statute does not apply where there are different elements of the respective offenses.   (People v. Watson (1981) 30 Cal.3d 290, 295–296, 179 Cal.Rptr. 43, 637 P.2d 279;  People v. Robertson (1990) 223 Cal.App.3d 1277, 1281–1282, 273 Cal.Rptr. 209.)   Comparing the elements of the two crimes, a significant difference is immediately apparent.   The conduct proscribed by section 243.4 can essentially be described as unconsented touchings of the intimate parts.   The intimate parts which may be the subject of the offensive touching include any person's sexual organs, anus, groin or buttocks, or any female's breast.   (§ 243.4, subd. (f)(1).)

The conduct proscribed by section 289 contains a significant element which has no counterpart in the “touching” statute:  the element of penetration of the vaginal or anal opening, which visits a different and unique outrage on the victim.2  Thus, rape (under either section 261 or 289) deals with more loathsome conduct than section 243.4 because the conduct has escalated beyond mere touching and has involved the new, additional and more heinous element of penetration.

 Of course, application of the “special statute” rules is not avoided merely because the elements of the general statute are not mirrored on the face of the special statute.   The court in People v. Jenkins (1980) 28 Cal.3d 494, 170 Cal.Rptr. 1, 620 P.2d 587 cautioned that a special statute may still supplant the general statute, even though the special and general statutes do not mirror each other, “[i]f it appears from the entire [statutory] context that a violation of the ‘special’ statute will necessarily or commonly result in a violation of the ‘general’ statute․”  (Id. at p. 502, 170 Cal.Rptr. 1, 620 P.2d 587 (emphasis added).)

Even a cursory review of section 243.4 demonstrates that the vast bulk of the proscribed conduct will not “necessarily,” or even “commonly,” transgress section 289.   The “touchings” may be of intimate parts which include, but are not limited to, the intimate parts protected by section 289.   Moreover, even as to “touchings” of the overlapping intimate parts (i.e., the vagina or anus), no penetration is required to complete the section 243.4 offense.   The mere fact that section 243.4, subdivision (c)'s prohibition against forcing a victim to masturbate can on occasion involve penetration does not mean a violation of section 243.4, subdivision (c) “necessarily or commonly” involves penetration.

 Second, even if the “necessarily or commonly” test were to be deemed met, we would still conclude the “special statute” rule inapplicable to this case, because there is a clear indication the Legislature did not intend section 243.4 to preclude prosecutions under the general statute.   The Jenkins court explained that the “special statute” doctrine is a rule designed to ascertain and implement the legislative intent, because the enactment of a specific statute covering the same conduct as the general law is a powerful indication the Legislature intended the more specific statute alone to apply.  (People v. Jenkins, supra, 28 Cal.3d at p. 505, 170 Cal.Rptr. 1, 620 P.2d 587.)   However, when it is clear the Legislature had a contrary intent (i.e., that it did not intend the specific statute to supplant prosecutions under the more general statute), “․ the usually decisive rule that a specific statute precludes prosecution under a general statute cannot apply.”  (Id. at p. 506, 170 Cal.Rptr. 1, 620 P.2d 587.)

We conclude there are very clear indications the Legislature did not intend the sexual battery statute to supplant prosecutions for conduct otherwise prosecutable under the rape statutes.   First, section 243.4 contains a definitional subdivision which, in addition to defining “touches” and “intimate parts,” specifically excludes from its ambit the crimes of rape and rape with a foreign object.3  This strongly suggests the Legislature did not intend conduct violating section 289 to be prosecuted at all under section 243.4, much less to be solely prosecutable under section 243.4.   More importantly, in 1985 the Legislature amended section 243.4 to add subdivision (e) (Stats.1985, ch. 1257, § 1.1, p. 4323), to specify that section 243.4 “shall not be construed to limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section.”  (§ 243.4, subd. (g).4 )  Given these two clear legislative declarations, we are convinced the Legislature did not intend that conduct such as that committed by Volk would be solely prosecutable under section 243.4.

 Volk's next contention relates to the conviction of two separate violations of section 289—two penetrations.   He recognizes the established rule that each separate penetration, no matter how short or regardless of the period of time interval between penetrations, constitutes a separate crime.   (People v. Harrison, supra, 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078.)   He contends, however, that the evidence introduced by the prosecution was insufficient to permit a jury finding of two separate penetrations.   His argument is that although the evidence was undisputed that the victim was forced to insert one finger, and then forced to insert two fingers, there was no direct evidence to the effect that she removed her one finger before inserting the second.   If, Volk contends, the physical action required was the addition of a finger, without removal of the first finger, no separate crime was committed.

When reviewing a contention of insufficient evidence to support a conviction, we are bound to affirm unless “upon no hypothesis whatever is there sufficient substantial evidence to support it.”  (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)  “Substantial” evidence is evidence of legal significance, reasonable in nature, credible and of solid value.   (People v. Samuel (1981) 29 Cal.3d 489, 505, 174 Cal.Rptr. 684, 629 P.2d 485.)   The court must review the whole record in the light most favorable to the judgment and presume in support thereof the existence of every fact the trier could reasonably deduce from the evidence.   If the evidence permits a reasonable trier-of-fact to conclude the charged crime was committed, the fact that the circumstances might also be consonant with a contrary finding will not warrant reversal.  (Jackson v. Virginia (1979) 443 U.S. 307, 318–319, 99 S.Ct. 2781, 2788–2789, 61 L.Ed.2d 560.)

We agree that there was no testimony specifically describing the manner in which the victim inserted two fingers into her vagina, after first having inserted only one.   We recognize, however, as the jury must also have done, that the act of joining a separate finger to a first finger previously inserted into any aperture ordinarily requires retraction and replacement rather than the dextrously more difficult act of mere addition.   Common sense supports the jury's apparent construction of the evidence.   The trial court did not err in entering two convictions of section 289, subdivision (a).

Finally, Volk claims the trial court erred in failing to instruct the jury it must find a new and separate penetration in order to convict him of two counts of penetration with a foreign object.   A trial court must instruct on general principles of law governing the case (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913).   Here, the court instructed the jury:

“Now I wish to define for you the crimes charged in counts 3, 4 and 5 of the information.   That's unlawful penetration by a foreign object.

“Defendant is accused in counts three, four and five of the information of having committed the crime of unlawful penetration by a foreign object, a violation of section 289(a)․

“Every person who for the purpose of sexual arousal, gratification or abuse, causes the penetration, however slight, of the genital opening of another person or causes another person to so penetrate that person's genital openings by any foreign object, substance, against the will of that person, by the use of force, violence, duress, menace or fear of immediate and unlawful bodily injury to such person, is guilty of the crime of unlawful penetration by a foreign object in violation of section 289(a)․

“In order to prove such crime, each of the following elements must be proved:

“1. A person caused the genital opening of another person, however slightly, to be penetrated by a foreign object,

“2. The penetration was against the will of such person,

“3. The penetration was accomplished by the use of force, violence, duress, menace or fear of immediate and unlawful bodily injury to such person, and

“4. The penetration was done with the purpose and specific intent to cause sexual arousal, gratification or abuse.”

 Volk accurately notes the trial court did not specifically say the jury had to find a separate penetration for each conviction.   However, he made no request that it do so.   If a defendant believes an instruction needs further clarification or amplification, he must request it at trial.   The issue cannot be raised for the first time on appeal.  (People v. Martinez (1978) 82 Cal.App.3d 1, 19, 147 Cal.Rptr. 208;  People v. Earnest (1975) 53 Cal.App.3d 734, 744, 126 Cal.Rptr. 107.)

The judgment is affirmed.


FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

2.   Penetration has been viewed with particular opprobrium by the Legislature.   The Legislature has declared that the essential guilt of rape is the outrage to the person and feelings of the victim, and accordingly, determined any penetration (however slight) is sufficient to complete the offense.  (§ 263.)   The peculiar outrage which attends such penetration is deemed to occur whenever the victim endures a new, unconsented penetration.  (People v. Harrison (1989) 48 Cal.3d 321, 330, 256 Cal.Rptr. 401, 768 P.2d 1078.)

3.   The legislative enactment which became section 243.4 provided, as part of it's definitional section, that “[s]exual battery does not include the crimes defined in [Penal Code] Section 261 or 289.”   (Stats.1982, ch. 1111, § 1, p. 4024.)

4.   Original subdivision (e) became subdivision (g) by certain 1989 amendments.  (See Stats.1989, ch. 1034, § 1, p. 3183.)

FROEHLICH, Associate Justice.

TODD, Acting P.J., and HUFFMAN, J., concur.

Copied to clipboard