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

The PEOPLE, Plaintiff and Appellant, v. Martin Joseph BLACKINTON, Defendant and Respondent.

No. D005378.

Decided: June 22, 1988

Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman, William H. Woodward and D. Michael Ebert, Deputy Dist. Attys., for plaintiff and appellant. Mathews, Bergen, Potash & Grier by Wesley H. Mathews, San Diego, for defendant and respondent.

A jury convicted Martin Joseph Blackinton of forcible rape (Pen.Code, § 261, subd. (2) 1 ) and forcible oral copulation (Pen.Code, § 288a, subd. (c)).  The court granted Blackinton's motion for a new trial (Pen.Code, § 1181).   The People appeal.   We affirm.



Penchan M., a 38–year–old native of Thailand, had trouble breathing at 1 a.m. on February 28, 1986, and went to Physicians and Surgeons Hospital by ambulance.   She was examined by a doctor and told to return in the morning.   In the emergency room waiting area, Blackinton, a security guard, assisted Penchan in telephoning for a cab.   After Penchan waited some time and no taxi came, Blackinton offered her a ride home.   Penchan accepted the offer.   Penchan followed Blackinton through the hospital believing he was taking her to his car.   Instead, he took her into a conference room where he grabbed her arm, twisted it behind her back, and told her it would hurt more if she did not comply with his demands.

Blackinton put Penchan on the floor and attempted various sexual acts.   Blackinton then tied Penchan to a chair.   Penchan spoke with Blackinton to calm him down and he untied her.   Blackinton then forced Penchan to kneel down and orally copulate him.   Penchan testified she fought back, hitting Blackinton in the stomach and protesting her inability to breathe.   Blackinton then placed Penchan on his lap and completed an act of sexual intercourse.

Blackinton called a cab for Penchan from the conference room where the incident occurred.   He waited there for the cab to arrive, then led her to the driveway at the opposite end of the building and left her there.   When she entered the cab, Penchan was distraught and frightened.   She told the driver she had been raped.

During the initial interview with police, Blackinton denied having sex with Penchan.   Later, he admitted having sex with her but said he “honestly believed she consented to those activities.”   Blackinton testified he initially lied because he was confused and scared, and because it was against hospital regulations to fraternize with patients.

After Penchan left in the cab, Blackinton falsified his security log to cover the one and one-half hours he spent with Penchan.


Before trial commenced defense counsel advised the court that he had just been informed that the deputy district attorney intended to introduce evidence to which he was objecting under Evidence Code 2 section 3523 because he believed “that the prejudicial effect of that evidence would outweigh any probative value.”   The court asked the prosecutor to make an offer of proof so that it could rule on the objection.   The prosecutor responded as follows:

“[A] circumstance in the victim's background was a factor leading to her concerns for her own safety, and that factor ․ is ․ that her mother was murdered by a rapist, and that crime occurred in the country of [Thailand], when she was a child;  and she will offer, as part of the reason for the fear that she held in this case, which is one of the essential elements of this crime, her concerns with regard to her own safety;  and one of the factors influencing those concerns was her knowledge—or her belief as to what occurred to her mother.

“Now, I would submit that certainly in a case of this nature, where apparently I'm led to believe the defense is one of consent, obviously, the amount of force exerted in this case is going to be relevant․

“․ There are going to be numerous times in which [Penchan] will be asked, either by myself or the defense, as to why she did not take a particular opportunity to escape, why she did not yell or cry out during the course of her being imprisoned in the room that the attack took place in, why she did a lot of the things that went on in this case;  and she's going to say that she was afraid;  she was afraid that she was going to be hurt by the defendant in this case․

“And one of the factors leading up to the reasons for that fear is this incident in her background, and I submit that it's certainly highly probative to explain her conduct, her state of mind, her actual fear;  and I think that we are not asking the jury to conclude that this defendant here is, by any means, responsible for any event that happened in some different country in the past.   It is only offered to bear upon her state of mind;  and I think, as such, she has every right to present those factors, particularly in light of contemplated arguments, contemplated defense that the—her actions might be deemed unreasonable by some.

“Perhaps some people would fight harder under these circumstances.   Some people might grab a weapon.   They might seek to actually defend themselves physically;  and consequently, I think it would be highly probative.   The probative value far outweighs any prejudicial effect.”

After defense counsel repeated his objection asserting the prejudice to his client outweighed any probative value, the court reserved its ruling explaining it was reluctant to make an evidentiary ruling before the issue actually arose.   The court acknowledged the evidence was “highly inflammatory” but it was also “probative.”

After the jury was impaneled, but outside its presence, the court and counsel had further discussion on the pending objection.   The court said:

“[W]eighing the 352 evidence considerations, ․ whether the evidence that's offered—that is, the fact that [Penchan's] mother was murdered by a rapist—is so time-consuming, prejudicial, confusing, misleading that it should be barred by 352, I have considered your arguments, Mr. Woodward, in that it explains [Penchan's] reluctance, her fear in not taking advantage of opportunities to escape, ․ but in some fashion did not seek to escape, did not seek to fight back more than somebody might expect her to under some theory of the evidence against the statement by defense counsel that, indeed, this would be highly prejudicial.

“․ I do conclude that [the evidence] is barred by 352.   I'm considering its probative value in explaining actions of the victim versus its prejudicial aspect in that the data that rapists and murders and so forth are connected, and I don't think it's time-consuming, particularly.   I don't think it would confuse or really mislead.

“I think the real basic question is prejudicial;  and considering the prejudicial aspect of it versus the probative, I conclude that it is too prejudicial under 352.   She is, of course, not barred from stating she was, indeed, frightened;  and I think that that will—the fact that it was one particular factor in her life, I feel, is barred by 352.   That is—[¶] ․ only restricted to the question of the fact that her mother was murdered by a rapist.  (Emphasis added.)

After further colloquy the court stated its concern was with the phrase “murdered by a rapist” but if the issue were to arise the prosecutor could ask Penchan whether “her mother was murdered” because that statement was not “unduly prejudicial.”   The fact that Penchan's mother was murdered may “indeed have an effect upon her state of mind as to her fear of anybody who is in any fashion, by any stretch of the imagination, attacking her.   I can see that's relevant and not prejudicial.”

After the court ruled Penchan did not testify about the death of her mother on direct examination.

During cross-examination, Penchan related in detail the events which showed that for the most part she did not resist.   Thereupon, on re-direct examination Penchan was asked why she was worried the defendant might hurt her to which she answered, “Because my mom had been killed.”   Defense counsel objected claiming the question was contrary to the court's earlier ruling.   The court overruled the objection stating the answer would remain and directed counsel not to inquire further on this issue.   After a recess the only further reference to this testimony was a reading of Penchan's statement to the jury because her complete answer had been interrupted by defense counsel's objection.


Blackinton's motion for new trial was based on Penal Code section 1181, subdivisions 5, 6 and 7.   The court rejected Blackinton's claim that the prosecutor committed misconduct (Pen.Code, § 1181, subd. (5)) or that the verdict was contrary to law or evidence (Pen.Code, § 1181, subd. (7)).   The court was primarily concerned with whether its earlier response to Blackinton's section 352 objection was correct, and if not, the effect of that error (Pen.Code, § 1181, subd. (5)).   The court explained that it may have improperly concentrated on the rapist aspect of the proffered evidence and not on whether the sanitized version was relevant.

The court reasoned the only relevance to the jury of the statement “my mother was killed” was if the jury inferred Penchan's mother was killed by a rapist.   Otherwise, the evidence was irrelevant.   The court also said the statement was important to the outcome of the case because the jury would not have “believed [Penchan] [against] Mr. Blackinton without considering that portion of the evidence.”   The court also reasoned “[e]ven if it was relevant, I think it was marginally relevant.   Then comes in the 352 process;  and again, I think its relevance would have to ․ infer to the jury that it had to be in some sort of violent sexual relationship.   And then the 352 objections as presented before, as I weighed them before and as I reweigh them, should have come into play.   I think first of all, it should have been ruled out on the relevance grounds;  and second, it was clearly a violation of 352 in that ․ the prejudice outweighed the probative value of it.”

The court recognized that its inherent power to insure defendant a fair and impartial trial exceeded the statutory limits of Penal Code section 1181 and concluded its erroneous evidentiary ruling required the granting of Blackinton's motion for a new trial.   This appeal ensued.


Whether the trial court ruled correctly in granting Blackinton's new trial motion requires us to resolve each of the following questions.   Did the trial court correctly rule on Blackinton's in limine section 352 objection when it decided the probative value of the statement “my mother was murdered by a rapist” was substantially outweighed by its prejudicial effect?   If that ruling was correct, did the court later err by allowing the admission of irrelevant testimony, “my mom was killed”?   And if the court did err, as it concluded it had, did it correctly determine the error was prejudicial thereby requiring the granting of Blackinton's motion for a new trial?   Before discussing each question we emphasize that except as to legal analysis of whether the evidence proffered by the prosecution was relevant the answers to the other questions require appropriate deference to the trial court.   Both the exercise of discretion in ruling on an section 352 objection and the impact of a legal error on the right of a defendant to a fair trial are matters which primarily rest within the broad discretion of the trial court.   Thus, our review of the questions presented and our ultimate answers to those questions necessitate respect for the trial court whose perception and sensitivities to the nuances of a trial are far more accurate than our delayed responses from an appellate record.


 It is clear that a court has the power to grant a new trial when it “has ․ erred in the decision on any question of law arising during the course of the trial․”  (Pen.Code, § 1181, subd. (5).)  In making this determination the court has wide discretion to determine whether the error is prejudicial.   The trial court's determination will not be disturbed on appeal unless it clearly appears it abused its discretion.  (People v. Perkin (1948) 87 Cal.App.2d 365, 370, 197 P.2d 39.)   This appellate deference is based on the reality that the trial court is in a far better position to pass upon the effect of any errors on the jury than is an appellate court.   Consequently unless the order is clearly without support in the record the new trial order must be affirmed.  (Ibid.)


 Relevant evidence is any evidence having any tendency and reason to prove or disprove any disputed fact that is of consequence to the determination of the action.  (§ 210.)   Irrelevant evidence is thus evidence which does not reasonably tend to prove any disputed fact.   Irrelevant evidence is not necessarily prejudicial.   There are times when evidence of no assistance to the factfinder is simply neutral.   Obviously there are other times when the extraneous matter is prejudicial.   The line drawing between relevant and irrelevant is not a science, but a human process in which the court must draw on its experience to determine whether the evidence tends to “logically, naturally and by reasonable inference prove or disprove a material issue.”  (People v. Jones (1954) 42 Cal.2d 219, 222, 266 P.2d 38.)   Inherent in this process is the identification of the material issue which must be proved.

 Here, the several reasons given by the prosecutor as to why the evidence was relevant did not assist the court in clearly focusing on what was to be proved by the victim testifying that her mother had been murdered by a rapist.   For example, part of the prosecutor's explanation why he wanted to introduce the evidence was to explain why the victim had failed to resist Blackinton's advances.   But it is clear that resistance by the victim is not an element of the offense of forcible rape.  (People v. Barnes (1986) 42 Cal.3d 284, 301, 228 Cal.Rptr. 228, 721 P.2d 110.)   Consequently if the evidence was being introduced to establish resistance the evidence was irrelevant.

Further complicating the issue of what constitutes relevant testimony from a rape victim is the impact of People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337.   In Mayberry the California Supreme Court held that a defendant has an absolute defense to the offense of forcible rape if he can raise a reasonable doubt with the jury that he reasonably and in good faith believed, even though incorrectly, that the victim consented to engage in sexual intercourse.  (Id. at p. 155, 125 Cal.Rptr. 745, 542 P.2d 1337.)   Consequently it becomes important for the court to differentiate between the fact of consent, a fact to which the victim can testify in a conclusionary manner, and the reasons for the victim's behavior, behavior which appear to manifest consent.   The prosecutor can establish the non-consensual aspect of the act of intercourse in its case-in-chief by merely asking the victim on direct examination whether she had consented.   Unless credibility is in issue, as it almost invariably will be, anything beyond this narrow question becomes irrelevant.   This is not to say, however, that the evidence is irrelevant for all purposes.   There is indeed a definite relationship between the fact of consent and the credibility of the victim.

In addition there is another aspect of the victim's state of mind in a forcible rape case which is important.   The prosecutor may be required to prove, such as in the case here, that the act of sexual intercourse was accomplished by fear of immediate and unlawful bodily injury.   Thus again, the victim's state of mind becomes an element of the offense which the prosecution must prove beyond a reasonable doubt.   And even though the fact of the victim's fear is a fact to which the victim can testify in a direct manner, the credibility of the victim and the existence of that fact are closely related.

Thus here, when Penchan's undisputed conduct could be interpreted as manifesting consent a rational explanation for that conduct would have been helpful to the jury in evaluating her credibility.   If the jury believed there was some alternative basis for her behavior other than merely reflecting consent, the jury would then have been more inclined to believe other parts of her testimony.   Accordingly, Penchan's testimony that she did not resist Blackinton because she was fearful he would do the same to her as the rapist had done to her mother was relevant to Penchan's credibility.  (See People v. Solis (1985) 172 Cal.App.3d 877, 882–888, 218 Cal.Rptr. 469.4 )


A trial court's response to an section 352 objection requires the court to first determine the relevance of the proffered evidence.   Because the trial court here decided the prejudicial aspect of Penchan's testimony was barred by section 352 the court concluded the evidence was relevant.   Pursuant to the discussion above we agree with that decision since the unedited version of the evidence was relevant on Penchan's credibility, helpful to establish her state of mind, i.e., her lack of consent and her fear of immediate and unlawful bodily injury.   But the relevance of the unedited version of the statement is not the issue before us.   The question is whether the sanitized version of the evidence was germane to any issue in the case.

We again agree with the trial court's determination that Penchan's statement “my mom was killed” described a tragic event but was an event which had no relationship to any issue in the pending case.   The court correctly reasoned that the statement was relevant only if the jury speculated and inferred that Penchan's mother had died in similar circumstances to those which were facing Penchan when she was confronted by Blackinton.   Seen in this light the court was given the opportunity to reevaluate the correctness of its earlier section 352 ruling that the entire statement was more prejudicial than probative.

 The reasons for the court's assessment of prejudice are clearly articulated on the record.   The similarity of the offense, the inflammatory nature of the words “murder” and “rapist” and the enormous sympathy which the event would generate were all legitimate factors which the court could consider in assessing the prejudicial aspect of Penchan's testimony.   The court's ruling was also made in a context in which the accuracy of Penchan's belief had not been established.   Accordingly, there was ample basis for the court to decide that under section 352 the probative value of the unedited version of Penchan's testimony was substantially outweighed by the highly prejudicial effect and thereby precluded its admission.

There is also the possibility that some of the jurors did not make the same mental leap to bridge the logical gap to assume there was a relationship between the circumstances involving Penchan and those in which her mother had been killed.   Viewed in this manner the evidence was simply unrelated to any issue in the case.   It was only a succinct way for Penchan to describe her fear of dying, casting herself in a dramatically sympathetic light before the jury.   This irrelevant evidence was far from neutral.   It was prejudicial.   The court's observation of this testimony on the jury and its later assessment that it was factor in the outcome of the case are matters which are properly left to the discretion of the trial court.

In summary we conclude the court correctly ruled on Blackinton's in limine section 352 objection and that it correctly decided it had erred by allowing the admission of irrelevant testimony.   We also decide the trial court's determination that the error deprived Blackinton of a fair trial is a ruling which goes to the core of the trial court's responsibility requiring our utmost respect.   We therefore affirm the order.


Order affirmed.

I dissent.

In a prosecution for rape under Penal Code section 261, subdivision (2), the People must prove, as an element of the offense, that the complainant did not consent to the act of sexual intercourse.  (People v. Key (1984) 153 Cal.App.3d 888, 895, 203 Cal.Rptr. 144;  People v. Harris (1979) 93 Cal.App.3d 103, 116, 155 Cal.Rptr. 472.)   The failure of a complainant to physically resist an assailant is strong evidence of consent.   In the presence of such a lack of resistance, it is of little value to permit the People to ask the complainant only if she consented when the issue is why she may have appeared to consent.

The need to inquire as to why the complainant did not resist is all the more apparent where, as here, the defendant clearly and forcefully uses the complainant's lack of physical resistance to affirmatively demonstrate consent.   Whatever logic may militate against the use of such evidence in the People's case-in-chief, once the defendant has opened the door to such evidence by his own direct inquiry, the complainant must be allowed to truthfully explain the reasons for her conduct.   Such explanations may take a variety of forms, from reliance upon authorities which recommend lack of resistance to explanations reaching into the personal experiences of the complainant.

I do not share the majority's view that People v. Barnes (1986) 42 Cal.3d 284, 228 Cal.Rptr. 228, 721 P.2d 110, assists us on the question of whether lack of resistance is relevant on the issue of consent.   I do believe, however, that the majority opinion tends to negate Barnes's landmark conclusion that a rape victim need not offer physical resistance in order to substantiate an allegation of forcible rape.   If a rape victim cannot explain that she did not resist because a self-defense class advised her not to resist or that personal experiences dictated against it, the victim will be forced to offer visible resistance solely in order to prosecute the perpetrator—the very result Barnes sought to eliminate by its holding.

I am likewise unconvinced by the majority's reliance upon People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337, for the proposition that the reasons for a victim's conduct are irrelevant where there exits a defense of a good faith belief the victim consented to sexual intercourse.

A defendant may offer both the defense that the complainant actually consented, and, the defense that even if she did not actually consent, he innocently believed she was consenting.   The majority opinion fails to draw a distinction between these defenses.   While, as Mayberry explains, the subjective fears of a victim may not be relevant on the latter issue, Barnes reveals it is certainly relevant to the former.   The existence of the Mayberry defense should not operate to preclude the prosecution, on whom the burden rests to substantiate lack of consent, from explaining why there was no physical resistance in the case.   Nor should it operate to deny the factfinder the opportunity to fully evaluate the consent element of the offense as it may relate to the defenses offered.

If the evidence explaining why Pechan did not physically resist is relevant on the facts of this case, which I believe it is, consideration must turn to whether the trial court reached the correct legal conclusion that the evidence should have been excluded under Evidence Code section 352.

On the facts of this case, the reasons why Pechan did not physically resist were necessary to the People's case.   Blackinton challenged Pechan to tell the factfinder why she did not resist.   She should have been allowed to tell them she did not resist because she was fearful she would have been killed as her mother had been killed, i.e., resisting a rape.   Recognizing the impact of such evidence, the trial court, while it need not have done so, sanitized the evidence.   As a result, the statement allowed before the jury did not reflect Pechan's full reason for failing to resist.   It was an abbreviated statement having only marginal factual relevance to the issue raised by Blackinton.   However, if the jury did not extrapolate from her testimony a conclusion Pechan's mother had been killed by a rapist, it was at best a neutral statement.   If the jury did make such an extrapolation, it performed a function it should legally have been allowed to perform.   Finally, if the far more relevant testimony that Pechan was in fear because her mother had been murdered by a rapist is admissible in this case, I find no error in admitting the statement her fear arose because her mother had suffered a violent death and she did not wish to place herself in a position of suffering one as well.   Such a statement does indeed operate to “prejudice” Blackinton.   The prejudice, however, is not a result of improperly admitted evidence.   It might well be the by-product of the truth, which was admissible in this case.

There are few principles as honored as permitting the trial court to make the judgment call regarding whether a deprivation of a fair trial has resulted from a ruling it has made.   However, the granting of a new trial in this case is inexplicable to me.   It is particularly so since I believe the rather perplexing result is to require a retrial where the prosecution has the opportunity to present additional, stronger, evidence against Blackinton.

On the facts of this case, the trial court was required to allow the victim to explain why she failed to resist.   Since the trial court did not err on a question of law, I would reverse the order for a new trial.


1.   Penal Code section 261, subdivision (2) defines rape as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, ․ [¶] ․ accomplished against a person's will by means of force, violence, or fear of immediate and unlawful bodily injury on the person or another.”

FN2. All statutory references are to the Evidence Code unless otherwise specified..  FN2. All statutory references are to the Evidence Code unless otherwise specified.

3.   Section 352 provides:“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate an undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

4.   We are mindful that our explanation as to why Penchan's testimony is relevant is not identical to the discussion of this issue in People v. Solis, supra, 172 Cal.App.3d 877 at pp. 882–888, 218 Cal.Rptr. 469.   In Solis although the appellate court held evidence of the defendant's earlier conviction of involuntary manslaughter was erroneously admitted for impeachment purposes, it held such evidence was properly admitted “to show the victim's state of mind.”  (Id. at p. 887, 218 Cal.Rptr. 469.)   The court explained that “[t]he attack [which resulted in the killing] was relevant in determining whether (1) defendant engendered in [the victim] a fear of immediate and unlawful bodily injury upon her or her son and (2) whether [the victim] gave positive cooperation in act or attitude pursuant to an exercise of free will.  ( [Pen.Code,] § 261.1).”  (Id. at p. 886, 218 Cal.Rptr. 469.)   Even though this language suggests that the evidence was being introduced to prove the truth of the matters asserted, i.e., the victim's fear and consent, the appellate court noted that the trial court had advised the jury that the evidence was being admitted for the limited purpose of showing the witness' state of mind and not for the truth of that statement and had later given CALJIC No. 2.09 reminding the jury of the earlier admonishment that certain evidence had been admitted for a limited purpose.  (Id. at pp. 884–885, 218 Cal.Rptr. 469.)   Thus, while we reach the same result as Solis for essentially the same reasons our opinion highlights that the relevance of the evidence relates to the victim's credibility while Solis focuses solely on the victim's state of mind.   Although it is clear that the victim's state of mind in forcible rape case is important, we have attempted to emphasize that the reasons for a victim's state of mind must be distinguished from the state of mind itself.   Except for this analytical difference Solis support our holding.

WIENER, Acting Presiding Justice.

WORK, J., concurs.