PEOPLE v. MOREHEAD (1987)

OPINION

During his jury trial, Robert Morehead pleaded guilty to two counts of burglary, two counts of false imprisonment, two counts of assault with intent to commit rape, and one count of sexual battery.   He was then convicted of three additional counts of burglary, eight counts of forcible rape, and one count of sexual battery. Several special allegations were found to be true in a bifurcated trial, including a prior conviction for a 1974 burglary of a residence essentially proved by use of a guilty plea form executed by Morehead.   A sentence in excess of 73 years was imposed for the package.

In the published portion of this opinion, we address this question:  How many rapes occurred in the case of each of the three rape victims?

I

A

In the early morning hours of August 6, 1983, victim Donna E., who was alone in her Santa Ana home with several windows open because of the summer heat, awakened to find a stranger, Morehead, placing one of her son's T-shirts over her head.   She never saw his face, but could see the skin of his arm was dark.   Morehead told her she would not be hurt if she remained quiet.   He asked her if she knew what rape was and asked her to consent.   She said, “Absolutely not.”   Nonetheless, he ordered her to remove her robe;  and she complied for fear she would be hurt otherwise.   Then, at his direction she touched his pants and erect penis.

After forcing her to recline on her back, Morehead engaged her in sexual intercourse for several minutes.   He then repositioned her on her hands and knees on the bed and resumed the same conduct.   After several minutes he moved her onto her side and continued the intercourse.   Finally, he moved her to a fourth position in which he was supine and she was on top.   Except for one change in position about which her memory was not clear, the victim recalled that Morehead withdrew his penis each time before resuming intercourse in a different position.

During these proceedings Morehead conversed with the victim.   He asked if she was a Christian and where she kept her money.   He told her he was a born again Christian and had a girlfriend but was not married.   Afterward he forced the victim to take a bath.   Donna described her assailant as a young man in good physical condition, five feet eleven inches to six feet three inches, with coarse curly hair in an Afro style.   Later she was unable to facially identify Morehead at a lineup, but did recognize his voice.

B

Less than two weeks later in the early morning hours of August 18, 1983, Lee Anne S. was awakened by the sound of a door closing in her Santa Ana residence.   Although it was dark, she had fallen asleep reading and her bedside lamp and the hall lights were on.   She could clearly see Morehead's face and clothing as he entered her bedroom.   Morehead, wearing gardener-type gloves, told her in a soft tone to be quiet.   When she screamed, he grabbed her and covered her eyes and mouth with one of his gloved hands.   He then blindfolded her with a pair of pantyhose obtained from her laundry room.   He continuously told her he would not hurt her if she stayed quiet.

After requiring her to undress, Morehead fondled the victim and made her lie on her back on the bed.   He placed her hand on his erect penis and said, “Feel what you are going to get.”   He got on top of her and said, “I want you to say I give my consent to intercourse.”   She told him she consented, and he proceeded to force her into an act of intercourse.   After a couple of minutes he withdrew, laid on his back, placed the victim on top of him, and penetrated her again.   After several minutes he placed her on her stomach and reentered her, and then rolled her onto her side and continued intercourse in this posture, withdrawing his penis before each change of position.   During intercourse Morehead asked the victim if she was a Christian.

Afterward he asked her if she wanted to take a shower.   She said she did and stepped into her bathroom, quickly locking the door behind her;  and Morehead decamped.   Later, Lee Anne S. discovered $200 and her bed sheets missing.   She identified Morehead in a photo lineup, a live lineup at the jail, and at trial.   She also identified his voice at the jail lineup.   The rape kit analysis showed Morehead could have been the rapist.

C

A few days later on August 22, 1983, Dorothy F. was alone at her home in the City of Orange.   At 4:30 a.m. she discovered Morehead standing at the door of her bedroom.   Although she did not get a good look at his face, she noted he was wearing cloth gloves.   After a brief struggle, Morehead blindfolded her with a pair of her pantyhose.   He placed her face down on the bed and asked for money.   During this conversation he picked up the victim's camera and took several photos.   She testified one of the photos revealed a portion of a tennis shoe which was not in her bedroom before Morehead entered.   The tennis shoe depicted in the photo was similar to a banana-colored tennis shoe later found in his bedroom.

Morehead asked her if she had ever been entered by an eight-inch penis and made her feel his erect organ.   After having her remove her bra and panties he made her get on her hands and knees and had intercourse.   He withdrew and placed her on her side and reentered her vagina.   After a short time he withdrew again, made her lie on her back, and again had intercourse.   When he withdrew the last time, he told the victim to take a shower and she did.   Money was missing from her purse and from a suitcase after he left.   Dorothy F. could not identify anyone in a photo lineup and tentatively picked a person other than Morehead at the jail lineup.   At trial she could not state whether Morehead was her assailant, but a rape kit analysis indicated he could have been.

D–E, II–VI ***

VII

Morehead next argues the conviction for more than one rape as to each of the three August victims was improper.   He urges the multiple penetrations in each instance constituted but a single course of conduct equating to a continuous crime.   With this contention we must agree.

Morehead was convicted of eight acts of rape in the three incidents:  three each as to Donna E. and Lee Anne S. and two as to Dorothy F.   In the Donna E. and Lee Anne S. crimes, Morehead engaged in intercourse with each victim in four different positions.   He had intercourse with Dorothy F. in three positions.   In each case, the victim could not say whether Morehead withdrew his penis and reinserted it between one particular change of position.   Hence, instead of the potential eleven, “only” eight convictions resulted.

At last a rational test to determine the number of separate but identical sex offenses has been set forth.   In People v. Hammon (1987) 191 Cal.App.3d 1084, 1099, 236 Cal.Rptr. 822, the court held, “[I]dentical sexual acts constitute separate and discrete crimes when they are separated (1) by the commission of a different sexual offense, (2) by sexual climax, (3) by an appreciable passage of time, or (4) by a reasonable opportunity for reflection.”   There was no evidence of any of these features in any of the August rapes:  no other sex acts, no hint of multiple climax, and no appreciable lapse of time or opportunity to reflect between the changes of position.   Three, not eight, rapes occurred.   Consequently, five of the rape convictions must be reversed with directions to the trial court to dismiss them (counts 3, 4, 5, 8, 9, and 12).  (Id., at p. 1099, 236 Cal.Rptr. 822.)

Hammon persuasively counters the arguments of our dissenting colleague on the merits of this issue, and we see nothing to be gained by rehearsing the reasoning of that case at length.   We do pause to express our revulsion at the suggestion in footnote 6 of the dissent that a rape victim might experience an orgasm.   We also note that the analogy described in footnote 7 is specious.   The dissent argues in that footnote that there is no legal difference between raping four women in different positions and raping one in a single continuous transaction in the same four positions.   Nonsense.  The same logic would place the killer of one person with four bullets in the same category as the murderer of four persons with one bullet each;  both would be guilty of four murders.

Finally, we are particularly unimpressed with the notion that the three rape victims in this case should have to suffer the embarrassment and humiliation of a retrial on the off chance that one or more of them might be able to testify that multiple orgasms occurred.   There is not a hint in the record of any such evidence, and the crimes were described in excruciating detail before the jury.   Every indication is that nothing of the sort occurred.   Nonetheless, we recognize the prosecutor had little reason to ask the specific question in his examination of these victims;  and it is possible we are wrong.   Under these highly unique circumstances, we invite the Attorney General to make a documented offer of proof in a petition for rehearing if any particular victim is prepared to offer evidence of multiple orgasm and the prosecution would prefer retrial to our disposition of the matter.   Should Morehead have the slightest objection to this procedure, we will accommodate him and remand, as our colleague proposes, counts 3, 4, 8, 9, and 12 for retrial.

VIII–X ****

The convictions are affirmed in each instance except those for rape (Pen.Code, § 261, subd. (2)) described in counts 3, 4, 8, 9, and 12.   Those counts are reversed, and the trial court is directed to dismiss them.

I dissent from the majority's conclusion in part VII as to the number of separate rape offenses committed by Morehead.   I do not agree with the so-called “rational test” set forth in People v. Hammon (1987) 191 Cal.App.3d 1084, 236 Cal.Rptr. 822 which the majority unfortunately adopts.

Hammon poses the wrong question.   The question is not “․ how ․ one determine[s] whether repeated but identical acts against the same victim during one transaction without the intervention of a different crime constitute one offense or several?”  (Id., at p. 1096, 236 Cal.Rptr. 822.)   Rather, the question is how many crimes were committed?

Because Hammon 's question is skewed, so is its answer.¹  Hammon creates a four-criterion test:  Are the identical sexual acts separated (1) by the commission of a different sexual offense, (2) by sexual climax, (3) by an appreciable passage of time, or (4) by a reasonable opportunity for reflection.

But this test judicially legislates a new definition for the crime of rape.   “Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:  ․ (2) Where it is accomplished against a person's will by means of force or fear of immediate and unlawful bodily injury on the person of another.”  (Pen.Code, § 261(2).)²  “Any sexual penetration, however slight, is sufficient to complete the crime.”  (§ 263, emphasis added.)

As defined by the Legislature, the crime of rape does not require there be complete penetration.   Nor does it require sexual orgasm.   In fact, the jury is instructed in a rape case:  “Proof of emission is not required.”  (CALJIC No. 10.20.)

By contrast, Hammon concludes without citation to authority, “․ there is but one sex offense for many penetrations unless that crime has otherwise been completed.”  (Id., at p. 1098, 236 Cal.Rptr. 822.)   It defines completion as achieving a sexual climax, separation of similar acts by a sufficiently long time period,³ opportunity for reflection before renewing the attack,⁴ and commission of a different sexual offense.

Unfortunately, none of Hammon 's criteria adds to the very specific statutory definition of the crime of rape.⁵  Hammon 's first criterion, commission of a different sexual offense, assumes completion of an offense prior to the start of the next sex offense.   For example, a defendant initiates his assault with sexual intercourse.   After a few minutes he withdraws his penis from the victim's vagina, places her on her hands and knees and immediately inserts his penis in her rectum.   After a few minutes he withdraws, lays on his back placing the victim on top of him and reinserts his penis in her vagina.   Under Hammon, that defendant has completed two acts of rape solely because he separated the vaginal penetrations with a rectal penetration.   The same result obtains if instead of sodomy an act of oral copulation occurred.   This is true notwithstanding the defendant never achieved a sexual climax.   To distinguish this factual scenario from the repeated vaginal penetrations by Morehead is totally illogical.

Hammon 's second criterion, sexual climax, is equally unavailing.   There is no authority, until now, which makes sexual climax relevant in a rape prosecution.   As I understand Hammon and the majority, if a defendant has sexual intercourse with his victim, withdraws and forces her to change positions, repenetrates, continues the action for several minutes and leaves, there is but one offense of rape.   However, if he achieves a sexual climax, withdraws, changes the victim's position, repenetrates her vagina, continues to have sexual intercourse for several minutes, then departs, he is subject to being convicted and punished for two rapes.   Again, this criterion is totally illogical and adds nothing to the determination of whether a crime of rape has been completed.⁶

The third and fourth criteria, an appreciable passage of time, or reasonable opportunity for reflection, cannot possibly be determinative of when a rape is completed.   How much is an “appreciable passage of time”?   What is a “reasonable opportunity for reflection”?   Considered in the context of a first degree premeditated murder case, “[T]he true test is not the duration of time as much as it is the extent of the reflection.   Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes ․ those homicides ․ which are the result of mere unconsidered or rash impulse hastily executed.”  (People v. Thomas (1945) 25 Cal.2d 880, 900–901, 156 P.2d 7.)

It would seem where, as in the present case, the first vaginal penetration and the third or fourth are separated by several minutes, the defendant would have had a “reasonable opportunity for reflection” especially where these different penetrations are separated by forcible change of the victim's position which necessarily added to her humiliation and outrage.⁷

In People v. Perez (1979) 23 Cal.3d 545, 552, 153 Cal.Rptr. 40, 591 P.2d 63, the Supreme Court distinguished sex crimes from other types of offenses.   The court said, “A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.”   As noted in People v. Clem (1980) 104 Cal.App.3d 337, 347, 163 Cal.Rptr. 553, “This is equally applicable to several acts of one sexual type as it is to several acts of a variety of sexual types.   If this were not so there would be no way in which to make the punishment fit the crime.”   The same conclusion was reached in People v. Gonzalez (1983) 141 Cal.App.3d 786, 190 Cal.Rptr. 554 where the defendant committed two acts of sexual intercourse which were within minutes of each other and separated by an act of oral copulation.  “He ․ correctly points out that every new vaginal penetration constitutes a separate ‘act’ of rape of which a defendant can be convicted separately.  [Citation.]”  (Id., at p. 791, 190 Cal.Rptr. 554.)

Where a defendant causes multiple vaginal penetrations, each such penetration constitutes a separate crime for which he may be convicted regardless of whether other types of sexual offenses are intertwined.   Morehead caused his victims to undergo separate humiliating violations of their bodies and is more culpable than had he merely engaged in one act of intercourse.   Each act of nonconsensual sexual penetration constitutes a separate rape offense.   There is another problem with Hammon.   It confuses crime and punishment.

The majority notes “there was no evidence of any of these features (the Hammon criteria) in any of the August rapes.” (Maj. opn., p. 572.)   They are partially correct.   The People were only required to present evidence which established each element of the crime of rape as that crime is defined by section 261.   There was no need to ask the victim if she knew exactly when, or if, Morehead achieved a sexual climax or how much time elapsed between each penetration.   This information is totally irrelevant.

Had the People been aware of the new elements added to the definition of rape by Hammon and the majority, they may well have been able to establish that one or more existed.⁸

This is not a case of reversal due to evidence insufficient to satisfy the existing statutory elements of a charged offense. Where the court has added new elements to the definition of rape, the People should be given the opportunity at a new trial to present evidence of these new elements.

Moreover, the majority has apparently overlooked the evidence presented by Lee Anne S.   According to her testimony, Morehead had her in each position for several minutes prior to changing position and again penetrating her vagina.   Certainly this evidence should be sufficient to conclude Morehead had “a reasonable opportunity for reflection.”   Considered in the context of first degree premeditated murder, the evidence of passage of this amount of time would be sufficient to sustain a finding of premeditation.   It is logically inconsistent to conclude the murder defendant had sufficient time to premeditate murder but Morehead did not have sufficient time to reflect upon the gravity of his acts. Even applying Hammon 's test to the offenses committed against this victim must result in at least three completed rapes.

Morehead's requiring the victims to change positions and again penetrating the victims' vaginas constituted separate rapes. There is no requirement for a sexual climax or passage of time or an opportunity to reflect or commission of a different sexual offense to constitute a series of rapes.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

1.   It initially recognizes the inapplicability of section 654 analysis to a determination of the number of crimes committed.   Nevertheless, it proceeds to adopt criteria particularly applicable to resolution of the question of section 654 punishment.

2.   All statutory references are to the Penal Code unless otherwise specified.

3.   This, of course, begs the question and does not help in a determination of when a sexual crime is completed.

4.   Renewing the attack would indicate one act had ended and a second one had begun which adds nothing to a determination of when a crime is completed.

5.   If the statutory definition leads to absurd results as asserted by Hammon, it is for the Legislature to redefine, not us.

6.   Whose climax constitutes completion of the rape?  Hammon does not tell us whether it is the assailant or the victim.   Presumably because the assailant is seeking his personal gratification, the court is only considering the assailant's climax.   However, sections 261 and 263 focus on “the outrage to the person and feelings of the victim of the rape,” not the assailant.

7.   Had Morehead placed four women on a bed in the same four positions he forced upon Lee Anne S. and proceeded to penetrate the first woman's vagina, engage in sexual intercourse for several minutes and then move on to the next woman, repeating his act until he had done the same to each woman, there could be no question he committed four rapes.   The act of rape was complete with each woman when he penetrated each woman's vagina.   The distinction between the example and the present case is one without a difference.

8.   Additionally, it would seem a defendant should be entitled to have the trier of fact make this factual determination:  a point neither Hammon nor the majority addresses.

CROSBY, Associate Justice.

WALLIN, Acting P.J., concurs.