PEOPLE v. CASTRO

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Napoleon L. CASTRO, Defendant and Appellant.

B016922.

Decided: August 27, 1986

Frank O. Bell, Jr., State Public Defender, Jill Ishida, Deputy State Public Defender, attorneys for Appellant. John K. Van de Kamp, Att. Gen. of the State of California;  Mark Alan Hart, Supervising Deputy Atty. Gen.;   and Sharlene A. Honnaka, Deputy Att. Gen., attorneys for Respondent.

Napoleon L. Castro appeals from the judgment entered after a court trial which resulted in his conviction of ten counts of kidnaping for the purpose of committing extortion, one count of attempted kidnaping for the purpose of committing extortion, two counts of rape, with the infliction of great bodily injury as to one count, one count of rape by a foreign object, two counts of sexual battery, one count of robbery, and one count of extortion.   (Pen.Code, §§ 209, subd. (a), 664/20964209, subd. (a), 261, subd. (2), 12022.8, 289, 243.4, 211, 518.)   He was sentenced to a 28–year determinate term with four consecutive life terms for kidnaping for purposes of extortion, with the remaining terms either stayed or ordered to run concurrently.   He contends:  “I.   There was insufficient evidence of robbery of Martha Garcia, thus the conviction must be reversed.   II.  Because there was insufficient evidence of great bodily injury, the section 12022.8 enhancement must be stricken” (as to the rape of Luisa Y.)

Viewed in accordance with the usual standard of appellate review (People v. Johnson (1980) 26 Cal.3d 557, 575–578, 162 Cal.Rptr. 431, 606 P.2d 738), the record establishes that, on eleven different occasions between July and October 1984, appellant accosted in each instance a Spanish-speaking woman, claimed to be an immigration officer, forced her to enter his car, and drove off, demanding money or sex.1  On the morning of September 18, 1984, appellant stopped Martha Garcia as she was crossing a street in Huntington Park.   He quickly opened and closed his wallet, stated he was from Immigration, and told her that if she had no papers she had to get into the car.   When she complied, as she had no documentation, he began driving and asked if she knew that the Immigration authorities were charging a $600 fine to let people go.   Mrs. Garcia replied that she had no money.   He told her that they should go to her house if she had money there.   When she replied that she had no money at home, appellant ordered her to count the money she was carrying with her and not to lie to him.   As appellant continued to drive, Mrs. Garcia counted $49 from her purse and gave it to him because he “scared” her.

On the morning of October 10, 1984, appellant approached 16–year–old Luisa Y. on a Los Angeles street and told her that he was from Immigration and that she should show him her immigration card.   He then ordered her into the car, telling her if she did not do so things would be “worse” for her.   He drove to a parking lot and told her that she should “give him [her] love.”   He then drove to a different parking lot where there was no light, ordered her to remove her clothing, and, despite her protests, forcibly accomplished an act of sexual intercourse.   Ms. Y. indicated that no other man had ever placed his penis in her vagina before and that it “hurt.”

DISCUSSION:

 Appellant's first contention is without merit.   Conviction of robbery requires proof that property was obtained from the victim by means of force or fear.   Mrs. Garcia's testimony that she gave appellant her money because she was afraid of him, as he drove her around in his vehicle posing as an Immigration officer, sufficiently establishes the element of fear to support appellant's conviction of robbery.  (People v. Johnson, supra, 26 Cal.3d at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738;  cf. People v. Lescallett (1981) 123 Cal.App.3d 487, 492, 176 Cal.Rptr. 687.)

 Appellant's second contention is also without merit.   Ms. Y. testified that it “hurt” when appellant committed an act of forcible sexual intercourse.   Such evidence is sufficient to establish “substantial or significant injury ‘in addition to that which must be present in every case of rape’ ” (People v. Caudillo (1978) 21 Cal.3d 562, 585, 146 Cal.Rptr. 859, 580 P.2d 274) which is requisite to a finding of great bodily injury, (People v. Williams (1981) 115 Cal.App.3d 446, 454, 171 Cal.Rptr. 401.)

The holding of Caudillo, supra, is that the crime of rape does not per se include the infliction of great bodily injury.   As part of its reason for finding that the defendant there had not inflicted great bodily harm on the victim, the Supreme Court stated:  “The victim did not testify she suffered any pain resulting from the acts of rape, sodomy or oral copulation.”   By contrast here the rape victim was a very young 16–year–old virgin and did testify that “it hurt.”

There was thus in the case before us substantial evidence of physical pain and which the court believed.   The victim's virginity and youth gave support to the credibility of this evidence and to the finding of great bodily injury.

People v. Williams, supra, p. 446, 171 Cal.Rptr. 401, illustrates the difference between an ordinary rape 2 with nothing more than the physical and mental embarrassment and discomfort common to all rapes, as so minimized by the language of Caudillo, and a rape in which there is actual additional physical pain or physical hurt as in the case at bench.   In People v. Williams, supra, there was evidence that the victim was a virgin and that the act of forcible rape caused her to have a torn hymen and bleeding.   However, the analysis by the court in Williams demonstrates that it would have reached the same conclusion, finding great bodily injury if the virgin victim had testified that the forcible rape had hurt her.   The court in Williams in discussing and distinguishing Caudillo noted that the virgin suffered physical injury to a significantly and substantially greater extent than ordinarily experienced by a victim of forcible rape.   A young virgin who testifies that the intercourse hurt her necessarily suffers physical injury which is more significant and substantially greater than that of a non-virgin victim of forcible rape but who does not so testify of pain.   Accordingly, the fact of virginity and youth, coupled with the testimony of pain is substantial evidence to support the finding of great bodily injury.   Appellant's contention that there was insufficient evidence to sustain the Penal Code section 12022.8 finding as to count XXXI fails.

The judgment is affirmed.

I respectfully dissent from that portion of the majority opinion which affirms the finding of great bodily injury as to count XXXI.   I share the outrage of my colleagues in regard to defendant's anti-social act, but do not believe that a reasonable trier of fact could have found that the People had sustained their burden of proving great bodily injury beyond a reasonable doubt.  (People v. Johnson (1980) 26 Cal.3d 557, 575–578, 162 Cal.Rptr. 431, 606 P.2d 738.)

A brief review of the procedural history of the cause is necessary to understand why there is a paucity of evidence to support the great bodily injury finding.   Apparently, in the original complaint filed in the municipal court initiating the prosecution, the People did not allege great bodily injury had been inflicted upon Luisa Y. during the rape.   Hence, her unexplored testimony at the preliminary hearing that she was a virgin and that the original penetration “hurt.”   At the close of that hearing, the People did not seek to add an allegation of great bodily injury.   Thus, defendant was held to answer only for having raped Luisa Y.

In the information ultimately filed in the superior court, the People added an allegation, pursuant to Penal Code section 12022.8, of great bodily injury.   The parties thereafter agreed to submit the issue of guilt or innocence to the court soley on the transcript of the preliminary hearing.   Thus, the People consented to the trier of fact making a determination of the existence of great bodily injury from a transcript of a hearing in which the issue had never really been developed.

While I recognize that a fine line divides a significant or substantial injury from one that does not meet that definition (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836, 159 Cal.Rptr. 771).   I do not believe the victim's testimony at the preliminary hearing constitutes substantial evidence to sustain the enhancement.   The victim did not explicate the nature nor extent of the pain and no evidence was presented that she suffered any physical injuries.   The majority relies upon People v. Williams (1981) 115 Cal.App.3d 446, 171 Cal.Rptr. 401.   That case, however, is clearly distinguishable in that there the People presented an abundance of evidence showing great bodily injury.

I recognize a solid argument could be made that defendant's implicit and continuing threat to expose the victim in this case to deportation could have caused mental and emotional suffering equating with any great bodily injury which might be inflicted by the use or threat thereof of a weapon.   However, such is not the infliction of great bodily harm intended by the statute.   The record in this case is devoid of any specific evidence on that facet of the subject.   The nature of the coercive language was not discussed or argued at the preliminary hearing.   It was not discussed in the superior court or in any of the briefs before this court.

In view of the fact that the purpose of the enhancement provision is to deter “ ․ the use of excessive force and the infliction of additional harm beyond that inherent in the crime itself ” (People v. Wolcott (1983) 34 Cal.3d 92, 108, 192 Cal.Rptr. 748, 665 P.2d 520;  emphasis added), I do not believe on the present bare bones record before us there is substantial evidence to support the trial court's finding of great bodily injury.   I am therefore unwilling to join the court in a pronouncement which extends great bodily injury beyond that fixed by statute and case law.

FOOTNOTES

1.   Only the facts underlying the two counts which appellant challenges on appeal are set forth in full.

2.   We allude to the idea of an “ordinary” rape not to minimize this despicable act but only because that is the way the Supreme Court treated defendant's act in Caudillo.   We do not agree with the strained reasoning nor the conclusion of that decision.   It minimizes the physically painful experience to the victim there, and ignores the physiological effect, which was just as much a result of the psychic trauma to the victim there as it was in cases where that same court has recognized a worker's right to recover for physiological injury resulting from psychic trauma.   Fortunately the decision of Caudillo is not applicable here.

BEACH, Associate Justice.

COMPTON, J., concurs.