People v. White CA3 ( 2023 )

Filed 12/22/23 P. v. White CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Calaveras)
----
THE PEOPLE,
Plaintiff and Respondent, C096898
v. (Super. Ct. No. 22F8389)
JESSIE TAYLOR WHITE,
Defendant and Appellant.
A jury convicted defendant Jessie Taylor White of forcible rape, rape by threat of
future retaliation, statutory rape, forcible sodomy, mayhem, dissuading a witness, making
a criminal threat, false imprisonment, meeting with a minor for a lewd purpose, and other
crimes. The trial court sentenced defendant to a determinate term of 25 years in prison,
plus an indeterminate term of 300 years to life.
Defendant now contends (1) the convictions for forcible rape in counts I through
III must be reversed because the trial court erroneously instructed the jury that lack of
consent is not an element of the crime, and if the contention is forfeited, his trial counsel
was ineffective in failing to object; and (2) the count IV conviction for rape by threat of
future retaliation is not supported by sufficient evidence, and the trial court did not
instruct the jury on all the elements of the offense.
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We conclude (1) the trial court prejudicially erred in instructing the jury that lack
of consent is not an element of forcible rape, and (2) although there is sufficient evidence
of rape by threat of future retaliation, the trial court prejudicially erred in failing to
instruct the jury on all the elements of the offense. We will reverse the convictions for
forcible rape and rape by threat of future retaliation (counts I through IV), vacate the
sentence, and remand the matter for possible retrial of the reversed counts. We will
otherwise affirm the judgment.
BACKGROUND
S. was 17 years old in 2021. Defendant told her he was 26 years old. They
communicated on Facebook Messenger and began sexting and sharing explicit
photographs of each other. In July 2021, defendant visited S. at the San Andreas motel
where she was staying and drove her to a motel in Lompoc, where they stayed for a
weekend and engaged in sexual intercourse four to six times. After the weekend,
defendant drove S. back to San Andreas. During the drive, defendant pushed S.’s head
down and had her orally copulate him even though she did not want to. Later that
summer, defendant and S. again spent a weekend at a motel and engaged in sexual
relations.
Before December 2021, defendant moved to a trailer in Sutter Creek on a friend’s
property to be closer to where S. lived, and they began seeing each other almost every
weekend for sexual activities. They also stayed in a house on the same property. Around
Christmas 2021, defendant looked at the content of S.’s cell phone and became angry.
Defendant began hitting S. and throwing her around the room. He rubbed a knife across
her cheek, saying he was going to cut her. He cut her cheek, and he cut off some of her
hair.
On subsequent days defendant twice forced his penis into S.’s anus against her
will. She screamed and cried and told him to stop. He told her he would make it hurt
more. Defendant also forced S. to have vaginal sex during those days. Defendant told S.
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that if she did not “put out” he was going to report her parents for neglect and put her
family at risk. He threatened to “hurt” S.’s father and uncle. Because of those threats, S.
engaged in sexual relations with defendant. S. wanted to go home, but she did not say
that to defendant because she was afraid of him. Eventually, defendant’s mother took S.
home. Before S. left the property, defendant told S. he would have someone kill her if
people found out what happened.
The jury convicted defendant on three counts of forcible rape (Pen. Code,
§ 261, subd. (a)(2) - counts I-III),1 one count of rape by threat of future retaliation
(§ 261, subd. (a)(6) - count IV); two counts of forcible sodomy (§ 286, subd. (c)(2)(A) -
counts V-VI); one count of mayhem (§ 203 - count VII); one count of dissuading a
witness (§ 136.1, subd. (c)(1) - count VIII); one count of making a criminal threat (§ 422
- count IX); one count of felony false imprisonment (§ 236 - count X); one count of
arranging to meet with a minor for a lewd purpose (§ 288.4, subd. (a)(2) - count XI); one
count of meeting with a minor for a lewd purpose (§ 288.4, subd. (b) - count XII); one
count of contacting a minor for a sexual offense (§ 288.3, subd. (a) - count XIII); and
three counts of statutory rape (§ 261.5, subd. (c) - counts XIV-XVI).
Additional background is set forth in the discussion as relevant to the contentions
on appeal.
DISCUSSION
I
Defendant contends we must reverse his convictions for forcible rape in counts I
through III because the trial court erroneously instructed the jury that lack of consent is
not an element of the crime. He adds that if his contention is forfeited because his trial
counsel did not object to the instruction, his counsel provided ineffective assistance.
1 Undesignated statutory references are to the Penal Code.
3
A conviction for forcible rape under section 261, subdivision (a)(2) requires
the element of lack of consent. This is unlike a conviction for statutory rape under
section 261.5, subdivision (c), which was also charged in this case and does not require
lack of consent. (People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1620.) In its
instructions to the jury after trial, the trial court included lack of consent as an element of
forcible rape. However, after about a day of deliberations, the jury sent the trial court the
following question regarding forcible rape counts I, II and III: “Can an individual under
the age of 18 consent to sexual intercourse, with an adult[?]” After a conference call with
counsel for the parties, the trial court responded: “Consent, or lack thereof, is not an
element of the charges in Counts [I, II or III].” Within less than 20 minutes after the trial
court gave the jury this answer, the bailiff advised the trial court that the jury had reached
its verdicts.
The trial court’s answer to the jury question allowed the jury to convict defendant
of forcible rape without the required finding of lack of consent. Nevertheless, the People
argue defendant forfeited this challenge because his trial counsel did not object to the
answer in the conference call before the answer was given to the jury and, in the
alternative, any error was harmless.
The conference call in question does not appear to have been recorded or
memorialized for our review. But, generally, a defendant need not object to a jury
instruction that violates the defendant’s federal constitutional rights by omitting a
required element of the crime. Furthermore, an appellate court may review any jury
instruction if an erroneous instruction affected the defendant’s substantial rights.
(People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.)
The People cite cases for the proposition that a defendant forfeits a challenge to
the trial court’s answer to a jury question if the defendant does not object to the answer.
The cited cases, however, do not involve an answer that withdrew from the jury
consideration of a required element of the crime. (See People v. Harris (2008) 43 Cal.4th
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1269, 1317 [defendant forfeited review by agreeing to an answer to the jury’s question
about the jury’s sentencing choices in a capital trial]; People v. Boyette (2002) 29 Cal.4th
381, 430 [failure to object to the trial court’s answers about procedural and factual issues
forfeits review of answers].) Here, we conclude defendant did not forfeit appellate
review of the trial court’s answer to the jury. We therefore turn to whether the trial
court’s instructional error in its answer to the jury was prejudicial.2
Instructional error that withdraws from the jury an element of the crime is
prejudicial unless “it is clear beyond a reasonable doubt that a rational jury would
have rendered the same verdict absent the error. [Citation.]” (People v. Merritt (2017)
2 Cal.5th 819, 831 (Merritt); see Chapman v. California (1967) 386 U.S. 18, 24
[17 L.Ed.2d 705] (Chapman).) To make this determination, we examine the entire cause,
including the evidence and the procedural circumstances. (People v. Aledamat (2019)
8 Cal.5th 1, 3.) Among other things, we may consider whether the attorneys provided
information about the required element, whether the defendant conceded or admitted
the element, whether the jury’s other factual determinations necessarily decided the
required element, and whether there is overwhelming evidence of the element.
(Merritt, at pp. 831-832.)
In the People’s closing argument, the prosecutor argued S. did not consent to
sexual intercourse at the times charged as forcible rape, and under the circumstances,
defendant could not have reasonably believed S. consented. Defense counsel countered
that S. had previously consented to sexual intercourse, and S.’s testimony was not
credible. From these circumstances, we conclude defendant did not concede S.’s lack of
consent as to the forcible rape counts. (Merritt, supra, 2 Cal.5th at pp. 831-832
2 Because we reach the merits of defendant’s first contention, we need not address
whether his trial counsel was ineffective in not objecting to the trial court’s answer.
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[defendant’s concession may render misinstruction harmless].) The People claim
defendant’s defense was that he did not have any sexual intercourse with S. However,
while that was what defendant told authorities when first contacted, the strategy at trial
was to challenge S.’s testimony, not to deny that sexual intercourse took place. In fact,
defense counsel acknowledged to the jury that, if defendant knew S. was 17 years old at
the time of the crimes, a conclusion of statutory rape was “logical.”
We find significant the timing of the jury question, the trial court’s answer, and the
verdicts. After a day of deliberations, the jury asked the trial court whether a minor could
consent to sexual intercourse with an adult. Soon after the trial court delivered an
answer, the jury reached its verdicts.
It is true that before the jury began deliberating, the trial court correctly instructed
the jury that lack of consent is an element of forcible rape. But the trial court also
instructed the jury that the victim’s consent was not a defense to the statutory rape counts,
and it answered the jury’s question by stating that consent was not an element of forcible
rape. It may have confused the jury to receive differing instructions on forcible rape and
statutory rape.
To call this instructional error harmless, we must find “it is clear beyond a
reasonable doubt that a rational jury would have rendered the same verdict absent the
error. [Citation.]” (Merritt, supra, 2 Cal.5th at p. 831.) The People argue it is
inconceivable that the jury could, on the one hand, conclude that defendant accomplished
the charged acts in the forcible rape counts by means of force, violence, duress and/or
fear of violence, yet on the other hand find that S. had somehow validly consented to the
same intercourse. This argument carries weight. But it does not explain the rapid
verdicts coming after the misinstruction.
Considering the entire record, we decline to say that it is clear beyond a reasonable
doubt that a rational jury would have found defendant guilty on the forcible rape counts
absent the misinstruction. We will reverse those counts and remand for possible retrial.
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(See Burks v. United States (1978) 437 U.S. 1, 15 [57 L.Ed.2d 1, 12] (Burks) [reversal for
instructional error does not bar retrial].)
II
Defendant next contends there is insufficient evidence to support the count IV
conviction for rape by threat of future retaliation (§ 261, subd. (a)(6)), and the trial court
did not instruct the jury on all the elements of the offense.
A
When a defendant contends the evidence is insufficient to support a conviction, we
review the record in the light most favorable to the judgment and determine whether there
is reasonable, credible evidence on which a trier of fact could convict. (People v. Beck &
Cruz (2019) 8 Cal.5th 548, 626.)
Defendant was convicted on count IV for rape by threat of future retaliation.
(§ 261, subd. (a)(6).) Subdivision (a)(6) makes it a crime to engage in non-consensual
sexual intercourse “by threatening to retaliate in the future against the victim or any other
person.” (§ 261, subd. (a)(6).) There must be “a reasonable possibility that the
perpetrator will execute the threat.” (Ibid.) And the threat to retaliate must be a threat to
kidnap, falsely imprison, or inflict “extreme pain, serious bodily injury, or death.” (Ibid.)
Defendant argues his statements to S. did not threaten to inflict extreme pain, serious
bodily injury, or death.
The count IV conviction was based on S.’s testimony regarding sexual intercourse
when she was with defendant in Sutter Creek. Defendant told S. that if she did not have
sex with him, he would get S.’s parents in trouble for neglect. She testified: “He said
that he was going to turn my parents in. That he was going to turn . . . everything that he
had to the authorities and that it was going to put my cousins at risk. It was going to put
their safety at risk. That he was going to put their home at risk, my family at risk.” S.
responded affirmatively to the prosecutor’s question about whether defendant “ever
threaten[ed] to hurt members of your family or you.” She added: “He threatened that . . .
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he was going to make it unsafe for my dad and my uncle. And he said that he was going
to get them for not -- or for doing what they did. That he was going to prosecute, he was
going to turn in, he was going to have his friends and him go up and hurt my family, hurt
my uncle, hurt my dad. But those were the males in the family, so that was his main
target for that.” She added that defendant did not threaten her cousins with violence.
During cross-examination, defense counsel asked S. what kind of trouble
defendant threatened for her family. She responded that it was legal trouble.
There was no threat of kidnapping or false imprisonment. There was also no
testimony concerning any threat defendant made to inflict violence on S. with respect to
the sexual intercourse alleged in court four, or on her cousins. So we must determine
whether S.’s testimony was sufficient to conclude defendant threatened to inflict
“extreme pain, serious bodily injury, or death” on S.’s uncle and father, specifically.
(§ 261, subd. (a)(6).) Although there was some ambiguity in the testimony concerning
whether defendant threatened to hurt the uncle and father physically or by turning them in
to authorities, the evidence was sufficient for a reasonable jury to conclude the harm
threatened against the uncle and the father was physical harm. While it does not appear
that defendant specified the way he would hurt the uncle or father, the jury could have
used evidence of the extent of defendant’s violence against S. to conclude that, by using
the word “hurt,” defendant meant that he would inflict “extreme pain, serious bodily
injury, or death” on S.’s uncle or father. (Ibid.)
Defendant argues that during cross-examination, S. said the “harm” defendant
threatened to cause was legal trouble. But defense counsel asked S. what kind of
“trouble” defendant threatened, not what kind of harm. Her answer that defendant
threatened to get her family in legal trouble did not preclude the jury’s finding that
defendant also threatened to hurt S.’s father and uncle physically. The evidence is
sufficient to support the count IV conviction for rape by threat of future retaliation.
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B
Having found that the evidence is sufficient to support the count IV conviction for
rape by threat of future retaliation, we turn to defendant’s assertion that we must
nevertheless reverse that conviction because the trial court did not instruct the jury on all
the elements of the offense.
After the parties presented their cases, the trial court began its instruction to the
jury by reading to the jury, among other things, the allegation as to count IV, stating that
between December 26, 2021 and December 31, 2021, in Amador County, the crime of
rape by threat of future retaliation in violation of section 261, subdivision (a)(6) was
committed in that defendant had unlawful sexual intercourse with S. by threatening to
retaliate in the future against her and another person, and there was a reasonable
possibility defendant would execute the threat.
When the trial court instructed the jury on rape, however, it did not instruct on
threat of future retaliation. As to the element concerning how the rape was accomplished,
which differs in the various subsections of section 261, subdivision (a), the trial court
instructed only on forcible rape, as charged in counts I through III, by “force, violence,
duress, menace, or fear of immediate and unlawful bodily injury to the woman or to
someone else.” (see § 261, subd. (a)(2).) The trial court did not instruct on a future
threat to retaliate or that “ ‘threatening to retaliate’ means a threat to kidnap or falsely
imprison, or to inflict extreme pain, serious bodily injury, or death.” (§ 261,
subd. (a)(6).)
The People concede the instructions on count IV were deficient. However, they
assert the instructional error was harmless beyond a reasonable doubt. (Merritt, supra,2 Cal.5th at p. 831; Chapman, supra, 386 U.S. at p. 24.) The People point to S.’s
testimony that defendant threatened to harm her family if she did not have intercourse
with him, and they note that the jury necessarily found S.’s testimony credible because it
convicted defendant on all counts. But while S.’s testimony was sufficient to conclude
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defendant threatened to inflict “extreme pain, serious bodily injury, or death” on S.’s
uncle and father, sufficiency of the evidence is not enough for us to conclude beyond a
reasonable doubt what inferences the jury might have actually drawn from the evidence if
it had been correctly instructed. The jury may have decided that the harm defendant
threatened to inflict was legal trouble, as defendant now argues, or some kind of violence
short of “extreme pain, serious bodily injury, or death.” (§ 261, subd. (a)(6).) As noted,
the testimony was not specific concerning harm. Because the trial court did not instruct
the jury on the form of threatened retaliation necessary for a finding on that element of
section 261, subdivision (a)(6), we decline to conclude beyond a reasonable doubt that
the instructional error was harmless.
We will reverse the count IV conviction and remand for possible retrial. (See
Burks, supra, 437 U.S. at p. 15.)
DISPOSITION
The convictions are reversed on counts I, II, and III for forcible rape, and on
count IV for rape by threat of future retaliation. The sentence is vacated. The matter is
remanded for possible retrial on the reversed counts. In all other respects, the judgment
is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
MESIWALA, J.
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