PEOPLE v. McCULLAR (1990)

OPINION

Jerrold McCullar was accused of kidnapping in violation of Penal Code section 207, subdivision (a) ¹ (count I);  spousal rape in violation of section 262, subdivision (a) (count II);  corporal injury on a spouse in violation of section 273.5, subdivision (a) (count III);  forcible oral copulation in violation of section 288a, subdivision (c) (count IV);  and violation of a court order in violation of section 166.4 (count V) in an information filed in the Kern County Superior Court on May 6, 1987.   An allegation for a sentence enhancement was alleged on the basis that the kidnapping was for the purpose of committing a sex offense;  i.e., oral copulation pursuant to section 667.8.

After two mistrials, appellant's third trial commenced on April 18, 1988.   The jury found appellant guilty of kidnapping, rape of spouse, and violation of a court order.   Rather than convicting appellant of forcible oral copulation and corporal injury to a spouse, the jury convicted appellant of the lesser offense of battery.   Appellant was sentenced to the upper term of eight years for kidnapping.   Two additional years were imposed consecutively for rape of spouse.   Concurrent sentences were imposed for the misdemeanors of battery and violation of a court order.   The aggregate term was 10 years.

Appellant filed a timely notice of appeal.

FACTS

The testimony of the complainant, appellant's wife, was given by her at the preliminary hearing and allowed into evidence at trial pursuant to Evidence Code section 1291 as an unavailable witness.   Mrs. McCullar disappeared on June 6, 1987, under suspicious circumstances and had not been located by the time of appellant's third trial.   At the preliminary hearing, she testified she had been married to appellant for 15 years and they had 3 children:  14–year–old Darlene;  12–year–old Sheila;  and 5–year–old Corey.   Appellant and Mrs. McCullar were separated and living in different residences on the day in question, February 27, 1987.   On that morning, Mrs. McCullar had been to court obtaining a restraining order to keep appellant away from her.   Appellant appeared in propria persona and signed a stipulation and order which required him to stay away from his wife's residence and place of employment.   The order was signed by the judge.   While Mrs. McCullar's attorney was getting copies of the order, she observed appellant sitting next to Mrs. McCullar and, with his face very close to hers, talk to her.   Mrs. McCullar was visibly shaking and appeared frightened both before and after the order was obtained.

That same day, Mrs. McCullar returned to her residence in Bakerfield and found appellant in her bedroom.   He had no permission to be there and she became frightened.   She testified at the preliminary hearing he forced her out of the apartment and into her car.   Initially, Mrs. McCullar operated the vehicle and drove it around the area of her residence as directed by appellant.   He then took over the driving and proceeded to the Sunnyland Motel in Bakersfield.   On the way to the motel, appellant said that as long as they were married he “didn't see anything wrong with [her] giving him a little sex every now and then.”   He said he loved her and wanted to have sex with her.   Mrs. McCullar testified she did not love appellant but in order to avoid getting injured, she told appellant she cared about him and loved him.   She felt appellant was forcing her into having some type of sexual relations.

Although she never saw a weapon, appellant stated at one point that he was carrying a knife.   In fear of her own safety she lied when she told appellant she loved him and cared about him.   She did not verbally attempt to dissuade appellant from having sexual relations with her due to her fear.

They arrived at the Sunnyland Motel and appellant registered and paid for use of the room.   Mrs. McCullar testified that she went into the motel office with appellant but the motel manager testified appellant entered alone and a woman remained in the car.   Mrs. McCullar could not recall whether she or appellant drove to the motel room.   The manager observed appellant drive to the room.   Frightened, Mrs. McCullar felt she “had” to go to the room.   She was too afraid to try to run away.   In the motel room, the couple engaged in sexual relations.   Mrs. McCullar testified she did not consent and did not wish to engage in sexual intercourse.   Appellant ejaculated quickly.   She observed no weapons while at the motel.   There was no fight;  he did not hit her.

After leaving the motel room, Mrs. McCullar telephoned her friend, Violanda Najera, from a pay phone to tell Najera she could not give Najera a ride to the bus depot as they had previously arranged.   Appellant then decided they would go Najera's residence to tell her that they had reconciled.   When they arrived at Najera's residence in Oildale, Najera was surprised to see them together since Mrs. McCullar had indicated she would never reconcile.   Appellant said he and Mrs. McCullar were “getting back together.”   Najera testified Mrs. McCullar was quiet and did not say very much.

While at Najera's residence, Mrs. McCullar went into the bathroom, slammed the door and announced she was not leaving with appellant.   Appellant became very angry and hit the door with his shoulder and then his fists.   He knocked the door open and grabbed Mrs. McCullar by the hair and neck and dragged her out to the car.   Although Mrs. McCullar attempted to escape, appellant grabbed her clothing and pulled her back into the car.   Najera immediately called the sheriff.

Appellant drove to an empty field.   Mrs. McCullar testified appellant forced her to orally copulate him and held her neck down while she did it.

They then proceeded to a pay telephone from which Mrs. McCullar telephoned their son's elementary school to explain she would be late in picking up the boy.   Then they proceeded to the location of appellant's truck.   Appellant got out of the car and Mrs. McCullar drove to the school.   Once at the school, she telephoned the sheriff.   As a result of the assault, she got a rash on her neck where bruises appeared two days later.

At approximately 12:30 p.m., Deputy Yoon of the Kern County Sheriff's Department contacted Mrs. McCullar at the elementary school.   He observed her to be very agitated and excited.   She showed him the restraining order.   They proceeded to Mrs. McCullar's apartment since Mrs. McCullar was afraid appellant would be waiting for her there.   However, appellant was not there.   Deputy Yoon was preparing to leave when Mrs. McCullar got very excited and stated she expected that appellant was going to get away with what he had done to her.   She then explained that he had driven her around town and forced her to have sex with him.   Deputy Yoon then took her to the hospital for a sexual assault examination.   He noted she had red marks and scratches on her neck.

The medical examination disclosed the presence of spermatozoa in Mrs. McCullar's vagina and on her underwear.   None was detected on the oral swab obtained from her mouth.   Photographs taken on March 3, 1987, show a bruise on Mrs. McCullar's left forearm.   The doctor who examined her did not notice the bruises when he examined her on February 27, 1987.

On the evening of June 5, 1987, Sonia Payne was visiting Mrs. McCullar and her three children at Mrs. McCullar's apartment.   Mrs. McCullar's boyfriend, Mike, had visited and left before Mrs. McCullar's daughter went to bed.

Darlene testified at trial she was awakened in the early-morning hours of June 6, 1987, by the crying of her brother Corey.   She heard her mother's voice and a man's voice which she did not recognize.   Although she could not see clearly, she saw her mother and a male figure in the hallway.   When she asked her mother who the man was, she was told to go into her room.   She testified she had never see him before.   She saw this man leave with her mother.   She initially thought the man was appellant, but after thinking about it and after she called the police she now believes it could not have been appellant as he would have said something to her.   She did not recall telling a social worker that she saw Mrs. McCullar and Mike walk to Mike's car and embrace before Mike left or that a vehicle similar to appellant's car went by at that time.

Other evidence produced at trial disclosed that Darlene telephoned her aunt, Betty Robertson, at approximately 8:30 a.m. on June 6, 1987, stating appellant had abducted her mother.   Ms. Robertson suggested Darlene call the police which Darlene did.

That same day, Deputy Marlatt contacted Darlene at her mother's apartment.   Darlene told the deputy that she had been asleep when she heard appellant and Mrs. McCullar arguing at approximately 2:30 a.m.   Appellant was stating he wanted Mrs. McCullar to leave the apartment and Mrs. McCullar indicated she did not want to go.   Appellant pushed something into Mrs. McCullar's lower back area.   Mrs. McCullar asked to go to the bathroom to get her shoes and appellant refused and pushed her out the front door and into Mrs. McCullar's car.   She later saw a shadowy figure sitting in the dark of the kitchen.

On the witness stand, Darlene denied that appellant asked her to falsely testify as to the events she observed on June 6, 1987.

Betty Robertson testified that appellant had asked her to care for his children on June 5, 1987, in case anything happened to him.   He gave her money and his car and told a neighbor who owed him $250 to give the money to Ms. Robertson.   Ms. Robertson took custody of the children the following day.   Appellant contacted the children on numerous occasions and she heard appellant tell them a number of times not to tell anyone that he took Mrs. McCullar.   She was present on the night following Mrs. McCullar's disappearance when appellant told Darlene that if she told the truth, i.e., that he abducted Mrs. McCullar, it would probably mean his life.

A Kern County social worker, Mary Ellen Sakowski, received a call from Ms. Robertson on June 15, 1987, and was told that appellant abducted Mrs. McCullar on June 6.   Robertson indicated the children would not tell the truth because appellant had told them if they did, he would go to prison.   Ms. Sakowski contacted appellant's children the next day at their residence.   She asked Darlene and Sheila if they knew where their mother was and they both stated they did not know.   They refused to talk about what happened on June 6 because if they did, their father might go to prison.   When Corey began to respond to the inquiry, both Darlene and Sheila told him to be quiet.   As Sakowski was preparing to leave, Darlene handed her a note stating she wished to talk with Sakowski alone.

Ms. Sakowski contacted Darlene separately on June 22, 1987.   At that time, Darlene stated that at approximately 2:30 a.m. on June 6, appellant entered their residence and took Mrs. McCullar from the apartment against her will.   They had been arguing, yelling and screaming.   Darlene had observed appellant on top of her mother in the bedroom.   Appellant forcibly took Mrs. McCullar from the residence and told Darlene to shut the door and to take the “kids” into the other room.   Darlene asked Sakowski not to tell anyone because if she did, appellant would go to prison.   Darlene said that if the police questioned her she would lie and deny it all and deny making these statements to Ms. Sakowski.

Defense

Darlene McCullar testified that Violanda Najera did not like appellant because appellant was Caucasian and a non–Hispanic and was trying to discourage the reconciliation between appellant and Mrs. McCullar.   Darlene claimed Violanda was a racist.   Darlene also testified that on the evening of June 5, 1987, Mike had been at the apartment.   She assumed he had left after she went to bed but she did not see him leave.   Two neighbors testified they saw Mrs. McCullar leave her apartment with a Hispanic man on the date in question.   They got into Mrs. McCullar's car and drove away.   The man they observed that night was not in the courtroom.

Several witnesses also testified Betty Robertson was prejudiced against appellant.

Rebuttal

Sonia Payne, who was visiting with Darlene on a Friday evening in June 1987, testified she went to bed at approximately midnight.   Darlene, Corey, Sheila and Mrs. McCullar and her boyfriend were at the residence at that time.   At approximately 2 a.m., Payne was awakened by Darlene who stated that appellant was taking her mother, that appellant ran into her like he did not see her and told her to get back into her room.   Darlene said it appeared appellant had something in his hand and was pressing it against Mrs. McCullar's back.   Mrs. McCullar straightened up whenever appellant's hand touched her back.   After they left, Darlene thought she saw someone by the washing machine.

DISCUSSION

I.–V.**

VI. WHETHER KIDNAPPING HAS BEEN PREEMPTED BY THE CRIME OF ABDUCTION

Finally, appellant contends that regardless of any sentencing errors, whether under section 654 or the California Rules of Court, kidnapping, as defined in section 207, subdivision (a), could not be charged, since it is preempted by the crime of abduction as defined in section 265 or in section 266b.

 It is well established under the principles of statutory construction that whether the general statute standing alone would include the same matter as the special act, and thus conflicts with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.  (People v. Gilbert (1969) 1 Cal.3d 475, 479, 82 Cal.Rptr. 724, 462 P.2d 580.)   A specific statute describing the conduct involved precludes prosecution under a general statute.  (People v. Jenkins (1980) 28 Cal.3d 494, 505, 170 Cal.Rptr. 1, 620 P.2d 587.)   The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply.   Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and “requires us to give effect to the special provision alone in the face of the dual applicability of the general provision ․ and the special provision․”  (People v. Gilbert, supra, 1 Cal.3d at p. 481, 82 Cal.Rptr. 724, 462 P.2d 580.)

 Appellant contends that he should have been charged with either section 265 or 266b and, as a result, his conviction under section 207 should be vacated.  Section 207, subdivision (a) provides:

“Every person who forcibly steals, takes, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.”

Section 265 states as follows:

“Every person who takes any woman unlawfully, against her will, and by force, menace or duress, compels her to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment in the state prison.”

Section 266b provides:

“Every person who takes any other person unlawfully, and against his or her will, and by force, menace, or duress, compels him or her to live with such person in an illicit relation, against his or her consent, or to so live with any other person, is punishable by imprisonment in the state prison.”

Appellant argues since rape constitutes defilement within the meaning of section 265 (People v. Palacio (1948) 86 Cal.App.2d 778, 779, 195 P.2d 439), if the kidnap was for purposes of rape, the activity falls within the terms of section 265.   However, in the instant case, as the sentencing court made clear, the kidnapping was not done with the intent to commit rape.   The sentencing court termed the rape almost an “afterthought.”

“Abduction is a form of kidnapping which could have been brought within the scope of kidnapping laws;  but the early English statute, on which American state laws are founded, was directed mainly at a man who sought by abduction and marriage to obtain property of an heiress.   Modern statutes, however, are broader and vary widely in their provisions.   Some deal with the purpose of marriage or defilement (infra, this section);  some with the purpose of illicit intercourse or prostitution (infra, § 559);  others with the purpose of depriving a parent or guardian of lawful custody.  (See Perkins, p. 96;  Clark and Marshall, p. 700;  1 Wharton 746;  1 Am.Jur.2d 159.)

“P.C. 265 deals with the original crime:  ‘Every person who takes any woman unlawfully, against her will, and by force, menace, or duress, compels her to marry him, or to marry any other person, or to be defiled,’ is guilty of a felony, punishable by imprisonment for 2–14 years.   The offense is committed by a man who takes the woman even though the actual defilement is accomplished by another.  (People v. Palacio (1948) 86 Cal.App.2d 778, 780, 195 P.2d 439 [distinguishing rape, and upholding separate convictions for abduction and rape].)  And the taking need not be done by force;  ‘menace’ is sufficient.  (People v. Moore (1961) 196 Cal.App.2d 91, 99, 16 C.R. 294 [police officer threatened to arrest waitress and have her illegitimate children taken from her unless she submitted to intercourse, and she did];  1 Am.Jur.2d 168.)

“Where the statute requires a particular intent in the taking, this is of course an element of the offense (see Perkins, p. 99);  but P.C. 265, supra, contains no such provision.”  (Witkin, Cal. Crimes (1963) § 558, p. 506.)

Thus, as Witkin points out, section 265 does not require that appellant intended at the time of the abduction to defile the victim.   The plain language of the statute only requires that the perpetrator unlawfully take the victim against her will and by force, menace or duress compels her to be defiled.  (§ 265.)

Appellant further contends that if the kidnap was for purposes of reconciliation, the activity comes within the terms of section 266b, which defines the crime of abduction to force illicit cohabitation.   However, there is no evidence to suggest that appellant intended to forcibly compel Mrs. McCullar to live with him.   Furthermore, as respondent points out, the jurors implicitly found there was no taking to forcibly compel the victim to be defiled at the time appellant took her from Najera's residence since they acquitted appellant of the charge of forcible copulation, the only sexual act which the victim claimed took place following that particular “taking.”   Therefore, since section 266b does not describe appellant's conduct, this section does not preempt section 207, subdivision (a).

 Respondent also correctly points out that neither section 265 nor 266b require a forcible taking.  Section 207, subdivision (a) requires that the victim be forcibly stolen, taken or arrested;  section 265 simply provides that the woman be taken unlawfully, against her will.   It is the defilement which must be compelled by force, menace or duress.   Section 266b applies to a person who takes any other person unlawfully and against his or her will.   It is the compelling of the victim to live with the perpetrator in an illicit relation against his or her consent which must be accomplished by force, menace, or duress.   Although appellant counters this argument in his reply brief by attempting to distinguish the cases relied upon by respondent [they construe a different statute, i.e., section 267], the clear language of the statutes in question support respondent's argument.   Therefore, section 207 is not preempted by either section 265 or 266b.

The judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

MARTIN, Acting Presiding Justice.

BEST and ARDAIZ, JJ., concur.