PEOPLE v. BANDA

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Court of Appeal, First District, Division 4, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Oscar BANDA and Leonard Gene Arzola, Defendants and Appellants.

AO23711, AO26051.

Decided: February 28, 1986

John Kevin Crowley, Scott T. Carss, San Jose, for defendants and appellants. John K. Van De Kamp, Atty. Gen., Ann K. Jensen, Deputy Atty. Gen., Linda Ludlow, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendants Oscar Banda and Leonard Gene Arzola were tried jointly by a jury which found each guilty of two counts of forcible rape committed in concert with another person (Pen. Code, §§ 261, subd. (2), 264.1) 1 and one count of forcible oral copulation, likewise committed in concert with another person (§ 288a, subd. (d)).  The jury further found that during the commission of these crimes Arzola had personally used a deadly weapon (§ 12022.3).   The trial court sentenced Arzola to serve 17 years in state prison, Banda to nine years in the California Youth Authority.   Defendants have separately appealed from the judgment of their respective convictions.   We affirm.

I

The nature of the various contentions made by defendants requires that the trial record be summarized in some detail.   The evidence supports the following recitals:

The Prosecution's Case

Kim DeLima testified that she and Kathy Windish were “cruising” in San Jose on the night of January 1, 1983.   Their automobile died, and they left it to find someone who would give them a “jump.”   A vehicle pulled up with four young men—defendants Banda and Arzola, Joseph Alcala, and Tony Martinez—who agreed to help.   After the girls' automobile was restarted, the group divided:  Arzola, Martinez and Ms. Windish were in the boys' vehicle, while Banda, Alcala, and Ms. DeLima were in the girls'.   At about midnight they all were at a park.

Upon stopping in the park, Banda, who had driven the girls' vehicle, left it.   Alcala and DeLima remained inside, where they kissed and were “sexually intimate.”   Ms. DeLima was emphatic in her testimony that they did not have actual intercourse.   About this time Martinez and Ms. Windish left the area in the other vehicle.2  Ms. DeLima believed that all of the others except Alcala had gone.

Shortly thereafter Banda knocked on the driver's window.   DeLima rolled it down, whereupon Banda reached his arm in and tried to kiss her.   DeLima told him to “Leave me alone.”   Arzola opened the passenger door and started pulling DeLima out of the vehicle by her arms.   She resisted.   About this time the driver's door was opened and someone grabbed DeLima's feet.   She was dragged out of the vehicle.   DeLima saw Arzola with a wine bottle in his hand.   She was afraid that he would hit her with it, but he never did.   Arzola did tell her “Don't scream or I'll kill you.”

Banda, Alcala, and Arzola were present as Ms. DeLima was dragged into the park.   Beneath an overpass, Arzola pinned DeLima's arms, “took down” her clothes, and dropped his trousers.   Arzola straddled DeLima as she lay on the ground.   He put his penis in DeLima's mouth and then in her vagina.   She told “them” to stop it.   Apart from Arzola, Banda was “the closest.”   Alcala was telling the others, “Stop it, let's leave, leave her alone.”   Arzola got up, and DeLima then felt “something inserting into my vagina.”   Banda completed an act of sexual intercourse against her will.   DeLima could not see Banda “exactly,” but she heard his voice and knew it was him.

After Banda was “finished,” “[t]hey picked me up again.”   DeLima ran away, followed by “them.”   She reached a house where the lights came on and a man “chased them off.”   Ms. DeLima made positive identifications of Arzola and Banda in court.

Alonzo Perez testified that on that night, after being awakened by screaming, he saw two figures near his house.   He turned on the exterior lights, went outside, and found DeLima, who told him:  “He raped me and he wanted to kill me.”

San Jose Police Sergeant Jack Woodall testified that he interviewed both Banda and Arzola.   Banda first denied having sex with Ms. DeLima, but he subsequently admitted that he had, and that he was guilty of “attempted rape.”   Arzola admitted that DeLima had been taken to the underpass by force, and that he too was guilty of “attempted rape.”   Arzola denied that he had forced oral copulation.

Forensic evidence established that semen taken from DeLima's pants came from a person with Type A blood.   Alcala and Banda have Type A blood;  Arzola does not.

The Defense

Joseph Alcala, Arzola's cousin, testified that he and DeLima had intercourse (including ejaculation) inside the vehicle while Banda and Arzola watched.   When he finished, Banda got in, started kissing DeLima, and they “started to go down.”   Alcala walked away and later met Banda in the park while DeLima and Arzola were beneath the underpass.   Either he or Banda shouted “the cops were coming.”   Alcala and DeLima walked to Perez's house;  Arzola and Banda apparently ran away.   Alcala's sex with DeLima was consensual.   He did not rape her or force her to orally copulate him.

Arzola testified that DeLima voluntarily left the vehicle and went into the park.   She became hysterical and he left.   Arzola did not have intercourse with DeLima, nor did he compel her to orally copulate him.   According to Arzola, Banda also did no sex act with DeLima.

Banda testified that Alcala got out of the vehicle and told him that DeLima “wanted to be with me.”   Banda got in, kissed DeLima, but did not have intercourse with her.   Arzola knocked on the window, but DeLima told him “no.”   Arzola grabbed DeLima, removed her from the automobile, and took her into the park.   Banda and Alcala were some feet away from the underpass when Banda saw Arzola on top of DeLima with his crotch area near her face.   Arzola told her to “suck me.”   DeLima was crying, screaming, and, according to Banda, was “being raped.”   Banda did not actually see Arzola's penis or whether he forced DeLima to orally copulate him, but “it looked like it.”   Banda told Arzola to leave her alone.   Alcala and Banda repeatedly told Arzola “Let's leave,” and eventually Alcala, Arzola, and Banda went to Tony Martinez's house nearby.   Banda did not touch Ms. DeLima after he and she left the vehicle.

REVIEW

II

Arzola contends that the trial court committed prejudicial error in denying his motion to preclude the prosecutor from impeaching Alcala with evidence of a “juvenile conviction” for auto theft.   We cannot agree.

In June of 1982 the People of California adopted the initiative measure commonly known as Proposition 8.   One of its provisions, added to the state constitution as article I, section 28, subdivision (f), reads in relevant part:  “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment․”  “The intention of the drafters of the initiative was ․ to reject the rigid, black letter rules” restricting use of prior felony convictions for impeachment promulgated by the Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 and subsequent decisions.  (People v. Castro (1985) 38 Cal.3d 301, 312, 211 Cal.Rptr. 719, 696 P.2d 111.)   These rules had been applied to impeaching a nonparty witness.  (People v. Woodard (1979) 23 Cal.3d 329, 338–339, 152 Cal.Rptr. 536, 590 P.2d 391.)   A related principle was that a juvenile court adjudication of criminal activity was not a felony “conviction” which could be used for impeachment.  (People v. Jackson (1980) 28 Cal.3d 264, 311, 168 Cal.Rptr. 603, 618 P.2d 149.)   The question presented here is, Did Proposition 8 modify these rules so that a witness could be impeached with evidence of acts committed as a juvenile which if committed by an adult would amount to a felony conviction?   We believe the answer is yes.

The established policy of California prior to passage of Proposition 8 was to differentiate proceedings in juvenile court from criminal trials.  “An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.”  (Welf. & Inst. Code, § 203.)   This policy is, to a large degree, artificial:  “Many cases have noted the practical equivalence of adult and juvenile court delinquency proceedings.  [Citations.]   In addition to the ‘quasi-criminal’ nature of juvenile court delinquency proceedings [citation], and the ‘widely held belief’ that they are ‘in reality criminal proceedings' [citation], it cannot be denied that both adult and juvenile proceedings are designed, at least in part, to protect the public from the consequences of criminal activity.”  (People v. Weidert (1985) 39 Cal.3d 836, 859, 218 Cal.Rptr. 57, 705 P.2d 380 (conc. and dis. opn. of Lucas, J.).)  This same concern is behind Proposition 8.  (Brosnahan v. Brown (1982) 32 Cal.3d 236, 247, 186 Cal.Rptr. 30, 651 P.2d 274.)

 The electorate, as the enacting body of Proposition 8, is presumed to have been aware of existing policy regarding juvenile court proceedings.  (People v. Weidert, supra, 39 Cal.3d 836 at p. 844, 218 Cal.Rptr. 57, 705 P.2d 380;  In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11, 210 Cal.Rptr. 631, 694 P.2d 744.)   Faithful to our paramount duty of effectuating the people's intent (In re Lance W., supra, at p. 889, 210 Cal.Rptr. 631, 694 P.2d 744), we cannot read the clear language “Any prior felony conviction of any person ․ whether adult or juvenile” as other than an explicit and unambiguous modification of the existing policy not to treat juvenile court adjudications as convictions.   The reference to “juvenile” proceedings has no meaning otherwise.   Our task is to adopt a construction which will avoid rendering this term meaningless, insignificant, or surplusage.  (Brown v. Superior Court (1984) 37 Cal.3d 477, 484, 208 Cal.Rptr. 724, 691 P.2d 272;  People v. McCart (1982) 32 Cal.3d 338, 342, 185 Cal.Rptr. 284, 649 P.2d 926;  City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47, 54, 184 Cal.Rptr. 713, 648 P.2d 935.)   We do so by holding that the principle that a witness may not be impeached with evidence of a juvenile court proceeding based upon acts which would constitute a felony if committed by an adult is one of the “rigid, black letter rules” abrogated by Proposition 8.

We are aware that a contrary conclusion was reached with regard to the impeachment of a defendant in People v. Sanchez (1985) 170 Cal.App.3d 216, 216 Cal.Rptr. 21.   We believe that the Sanchez court reflexively applied the former policy of not treating juvenile court adjudications as criminal proceedings without paying sufficient heed to the clear language and import of article I, section 28, subdivision (f).   For the reasons stated above, we decline to follow Sanchez.3

 The trial court's ruling was not based on an exercise of its discretion pursuant to Evidence Code section 352, and thus was error.  (People v. Castro (1985) 38 Cal.3d 301, 306–313, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Leonard (1983) 34 Cal.3d 183, 187, 193 Cal.Rptr. 171, 666 P.2d 28.)   Nevertheless, Alcala's “conviction” did involve moral turpitude and therefore qualified for impeachment.  (Cal.Const., art. I, § 28, subd. (f);  People v. Castro, supra, 38 Cal.3d at pp. 313–317, 193 Cal.Rptr. 171, 666 P.2d 28;  People v. Zataray (1985) 173 Cal.App.3d 390, 399, 219 Cal.Rptr. 33.)   The testimony of Alcala, who was called to testify by Arzola, was not central to Arzola's defense.   In light of the mass of adverse evidence (see part V, post), any derivative prejudice to Arzola was too weak to affect the outcome.   There being no reasonable probability of a more favorable result, the error was harmless.  (Cal.Const., art. VI, § 13;  People v. Castro, supra, 38 Cal.3d at pp. 318–319, 193 Cal.Rptr. 171, 666 P.2d 28;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

III

We next consider Arzola's two claims of juror misconduct in conjunction with a transactionally-related contention that the trial court abused its discretion in ordering a view of the crime scene by the jury.

 During the course of the defense's presentation of evidence the court was advised that a juror had visited the park on her own.   The court was further advised that jurors may have disregarded the admonition not to discuss the case among themselves.   Clarence Heppler, the alternate juror who brought the second matter to the court's attention, testified that the jurors involved had only discussed the “personalities” of the attorneys—“more or less general discussions how each of the different lawyers were interrogating different witnesses.”   According to Mr. Heppler, the discussions occurred “[j]ust the first couple of days and then after awhile it ․ just stopped.”   The discussions did not involve the witnesses, the evidence, or the question of defendants' guilt or innocence.   The trial court, on its own motion, ordered a jury view of the park and thereafter denied Arzola's motion for a mistrial.4

There can be no doubt that the juror's extrajudicial visit to the park amounted to receiving “evidence” other than that introduced during the trial.   This was misconduct which created a rebuttable presumption of prejudice.  (People v. Ladd (1982) 129 Cal.App.3d 257, 264, 181 Cal.Rptr. 29;  People v. Hill (1980) 110 Cal.App.3d 937, 942, 168 Cal.Rptr. 272.)   The trial court's innovative response was to order that same “evidence” shown to all members of the jury.   This action was within its discretion (§ 1119) and, in the circumstances, not an abuse of that discretion.  (People v. Cooks (1983) 141 Cal.App.3d 224, 322–323, 190 Cal.Rptr. 211.)   With any prejudice thus cured, the court's subsequent denial of Arzola's motion for mistrial based on this incident was likewise no abuse.   The same conclusion applies to that part of Arzola's motion which was based on the juror's substantively immaterial discussions.  (See People v. Sutter (1982) 134 Cal.App.3d 806, 820, 184 Cal.Rptr. 829;  People v. Martinez (1978) 82 Cal.App.3d 1, 22, 147 Cal.Rptr. 208;  People v. Slocum (1975) 52 Cal.App.3d 867, 884, 125 Cal.Rptr. 442.)

IV

Defendants raise three claims of instructional error which we consider in turn.

 The prosecution's theory was that Banda had acted as an aider and abetter to Arzola and vice versa.   The trial court accordingly instructed the jury with the former versions of CALJIC Nos. 3.00 (“Principals-Defined”) and 3.01 (“Aiding and Abetting-Defined”).   Defendants' contention that this was error is correct.   The instructions were defective because they “did not advise the jury that conviction as an aider and abettor required not only that the defendant have knowledge of the criminal purpose of the perpetrator of the offense, but also that the defendant share that purpose or intend to commit, encourage, or facilitate the commission of the crime.”  (People v. Croy (1985) 41 Cal.3d 1, 11–12, 221 Cal.Rptr. 592, 710 P.2d 392;  People v. Beeman (1984) 35 Cal.3d 547, 560–561, 199 Cal.Rptr. 60, 674 P.2d 1318.)

 With regard to Arzola, the jury was instructed with CALJIC No. 17.16 (1977 rev.) that the enhancing allegations could not be found true unless they determined that Arzola had personally and intentionally used a deadly weapon (i.e., the wine bottle).   The jury found all of the allegations to be true.   The Beeman error was therefore harmless because the element of intent was necessarily decided adversely to Arzola under other, properly given instructions.  (People v. Croy, supra, 41 Cal.3d 1 at p. 13, 221 Cal.Rptr. 592, 710 P.2d 392;  People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913.)

 The same conclusion applied to both defendants on all counts because the jury was instructed with a modified version of CALJIC No. 10.40.3 (1981 rev.) (“Oral Copulation-Committed While Acting in Concert”) that it could not convict unless they found that each defendant “was acting voluntarily in concert” with the other.  (Emphasis added.)   The jury could not have decided the issue of voluntariness without necessarily deciding the issue of intent.   Banda's contention that CALJIC No. 10.40.3 was inadequate to correct the Beeman error thus fails.

 Arzola attacks the trial court's refusal to give the following special instruction:  “A charge such as that made against the defendants in this case is one which, generally speaking, is easily made, and once made, difficult to disprove.  [¶]  Therefore, the law requires that the [jury] examine the testimony of the complaining witness with caution especially where the complaining witness has presented contradictory evidence.”   This instruction has been disapproved.  (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882, 123 Cal.Rptr. 119, 538 P.2d 247.)   No error.

 Banda attacks the court's refusal to give this special instruction:  “If you believe the testimony of the witness Perez that one of the first things said to Perez by the complaining witness, Kim DeLima, was;  ‘He raped me, he tried to kill me,’ and that by the use of the word ‘He’ Kim DeLima referred to someone other than the defendant Banda, that evidence alone is sufficient to create a reasonable doubt as to the guilt of defendant Banda.”   The trial court erred in refusing this “pinpoint” instruction.  (People v. Hall (1980) 28 Cal.3d 143, 158–159, 167 Cal.Rptr. 844, 616 P.2d 826;  People v. Rincon-Pineda, supra, 14 Cal.3d 864 at p. 885, 123 Cal.Rptr. 119, 538 P.2d 247.)   In light of the strong evidence against Banda (see part V, post ), our determination is that the error was harmless.  (Cal. Const., art. VI, § 13;  People v. Watson, supra, 46 Cal.2d 818 at p. 836, 299 P.2d 243.)

V

Banda's contention that his conviction lacks the support of substantial evidence is to be considered according to well-established rules.   Our task in reviewing his claim is not to decide whether this court believes that his guilt has been proven beyond a reasonable doubt.  “ ‘When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a[ny] rational trier of fact could have found the defendant guilty beyond a reasonable doubt.’  [Citation.]   In applying this test, we must ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ”  (People v. Fosselman (1983) 33 Cal.3d 572, 578, 189 Cal.Rptr. 855, 659 P.2d 1144;  People v. Johnson (1980) 26 Cal.3d 557, 576–578, 162 Cal.Rptr. 431, 26 Cal.3d 557;  Jackson v. Virginia (1979) 443 U.S. 307, 318–319, 99 S.Ct. 2781, 2788–2789, 61 L.Ed.2d 560.)   Arzola's contention that the trial court erred in denying his motion pursuant to section 1118.1 for entry of a judgment of acquittal is to be reviewed according to these same criteria.  (People v. Lines (1975) 13 Cal.3d 500, 505, 119 Cal.Rptr. 225, 531 P.2d 793;  People v. Veitch (1982) 128 Cal.App.3d 460, 466, 180 Cal.Rptr. 412.)

Defendants devote a great deal of attention to the numerous inconsistencies, gaps, and changes in the testimony.   The fact is the jury believed the victim's version of events.   The principles quoted above require proceeding on the basis of accepting Ms. DeLima's testimony as proven.   That evidence establishes that two acts of rape and one of oral copulation were committed upon her against her will.   Her testimony that her assailants were Banda and Arzola, plus Banda's testimony concerning Arzola's actions, undoubtedly qualifies as substantial evidence.

 The only real question, and the one on which defendants have fixed their primary focus, is whether the “acting in concert” element of the crimes was demonstrated.   Defendants appear to treat the term as synonymous with aiding and abetting, also entailing a requirement of personal presence.   This is incorrect.   Moreover, “acting in concert” does not require proof of prearrangement, planning, or scheme.  (People v. Lopez (1981) 116 Cal.App.3d 882, 886–888, 172 Cal.Rptr. 374;  People v. Barnett (1976) 54 Cal.App.3d 1046, 1049–1050, 127 Cal.Rptr. 88;  People v. Calimee (1975) 49 Cal.App.3d 337, 340–342, 122 Cal.Rptr. 658.)

 The record, viewed most favorably to the prosecution, shows the following:  Banda assisted Arzola in dragging the victim from the automobile.   Ms. DeLima's physical resistance was overcome and her oral protestations ignored.   She was threatened by both word and deed.   That Arzola raped and forced her to orally copulate him is beyond all doubt.   Ms. DeLima's testimony that she did not have intercourse with Alcala, together with the forensic evidence, supports an inference that Banda had intercourse with her.   Ms. DeLima described Banda as “the closest” person to her apart from Arzola while Arzola was abusing her.   Arzola and Banda were together before, during, and after the crimes were actually committed.   The presence of each while the other was assaulting the victim inhibited her possible escape.   Arzola and Banda left the scene of the crime together.   All of this is substantial evidence supporting defendants' convictions.  (People v. Green (1985) 166 Cal.App.3d 514, 516–517, 212 Cal.Rptr. 451;  People v. Gutierrez (1978) 80 Cal.App.3d 829, 832, 839, 145 Cal.Rptr. 823;  People v. Wheeler (1977) 71 Cal.App.3d 902, 906, 139 Cal.Rptr. 737.)

VI–XII 5

The judgments of conviction are affirmed.

FOOTNOTES

1.   Statutory references are to the Penal Code unless otherwise indicated.

2.   Ms. Windish testified that she and Martinez left after Arzola asked them to get some cigarettes.

3.   Welfare and Institutions Code section 1772, subdivision (a), provides in pertinent part:  “Every person honorably discharged from control by the Youthful Offender Parole Board who has not, during the period of control by the authority been placed by the authority in a state prison shall thereafter be released from penalties and disabilities resulting from the offense or crime for which he or she was committed․”   This statute has been recently construed to preclude impeachment of an accused with evidence of what we now hold to be a juvenile conviction.  (People v. Jackson (1986) 177 Cal.App.3d 708, 222 Cal.Rptr. 470 [1986].)  The applicability of Jackson's construction of this statute has not been argued to us, and we express no opinion on it.

4.   The trial court ruled as follows:  “The Court at this time finds from what Mr. Heppler has said that there is no reason to believe that the three jurors in question have in fact violated the admonition.   The Court listened very carefully to his statement ․  [T]he Court finds that he overheard three jurors talking about the attorneys, the manner in which the attorneys conduct themselves, deport themselves and ask questions, which is not talking about the facts or evidence of this trial․  [¶]  The court finds that any misconduct committed by Juror No. 2, Mrs. Paolino, in going to the scene, which by the way was done prior to the Court's specific admonishment not to do so, any misconduct which resulted in prejudice has been cured because of the fact the entire panel now has gone to the scene, including the alternates, viewed the scene.   Per Mrs. Paolino, she simply parked her car, took a sneak peek, so to speak, in the park in question.   Now the entire panel have viewed the entire scene.  [¶]  The motions for a mistrial as to Mr. Arzola is denied for the reasons stated.”Banda did not join in the motion and in fact opposed it.

5.   See footnote*, ante.

SABRAW, Associate Justice.

ANDERSON, P.J., and CHANNELL, J., concur.