People v. Daniels CA3 ( 2024 )

Filed 5/13/24 P. v. Daniels 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C098356
Plaintiff and Respondent, (Super. Ct. No. 22FE005847)
v.
STEVE WAYNE DANIELS,
Defendant and Appellant.
A jury found defendant Steve Wayne Daniels guilty of three counts of rape by
force or fear along with other crimes. On appeal, defendant contends the trial court erred
by failing to instruct the jury on the lesser included offense of assault with the intent to
commit rape as to the second of the three rape counts (count three). We disagree and
affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
Given that defendant is seeking reversal of only count three, we focus on the facts
relating to that offense.
The victim, defendant’s spouse, called 911 twice on April 6, 2022,1 and reported
domestic violence. Sacramento Police Officers David Williams and Crystal Espinoza
were dispatched to follow up with the victim. The victim’s oral report was recorded on
Officer Williams’s body-worn camera. The footage was played for the jury during
defendant’s trial. The footage was not included in the record on appeal; we have only
testimony discussing the contents and a copy of the transcript reviewed by the jury.
The interview transcript begins with the victim recounting that around 4:00 a.m.
on April 6, defendant returned to the home he shared with the victim, started kicking the
door, forced the victim to take a bath, hit her in the head after she got out, knocked her
down, threw her on the bed, attempted to have sex with her, smothered her with a pillow,
and continued to sexually assault her until about 5:30 a.m. The victim added that
defendant had physically and sexually assaulted her from approximately 10:00 p.m. on
April 5 through approximately 5:30 a.m. on April 6. The victim reported it took
defendant about five hours to get an erection, and “[t]hen he finally did. And then after
he got done, he got off [her],” and that during those five hours he was hitting her. There
seemed to be brief confusion between the officer and the victim as to whether the five
hours referred to defendant’s absence from the house or defendant’s inability to obtain an
erection.
Officer Williams asked the victim to slow down because she was skipping a lot in
her report. The victim was visibly injured and upset in the footage. The officer then took
the victim step by step through each event she had mentioned, and a clearer, more
1 Further date references are to the year 2022.
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detailed timeline emerged. The victim reported that at about 10:00 p.m., defendant
punched her, covered her face with a pillow, and began having sex with her for about five
minutes until he lost his erection. This sequence of events supports the first rape charge.
The victim reported that defendant left at 1:00 a.m. to get some alcohol.
The second rape, count three, is tied to the sexual acts that the victim reported
occurred around 2:00 a.m. The victim said that around 2:00 a.m. defendant forced her to
touch his penis to help him achieve an erection and then grabbed her legs, placed them on
his shoulders, and rubbed his penis against her vagina for about two hours in an attempt
to get an erection. The victim was not wearing underwear. The victim twice confirmed
defendant was able to insert his penis into her vagina during this timeframe. The victim
said defendant did not leave after the second round of sexual intercourse around 2:00
a.m., and that he stayed and acted foolish until he achieved an erection and performed the
sexual acts giving rise to the third rape charge around 4:00 a.m.
At trial, the victim changed her story in some material ways, testifying that her
husband came home from work, forced her to take a shower, hit her, and had consensual
sex with her. The victim testified she and defendant had sex around 12:00 a.m. before
defendant went to the store for about 15 minutes. The victim said she and defendant had
sex a second time around 2:00 a.m. to 3:00 a.m. She repeatedly testified that the sexual
acts were consensual, defendant never raped her, and she and defendant had intercourse
only twice. The victim testified that there was a “third incident” around 4:00 a.m., but
that defendant did not force himself inside her then. The victim was inconsistent as to
how many times defendant had hit her, claiming he hit her between two and six times at
various points throughout her testimony.
The victim also testified that she was “coached” by police when she spoke with
them during her report on April 6. When asked what she meant by this, the victim said
the police did not tell her what to say but pressured her to make pretext calls to her
husband and were “coming at [her].” Officer Espinoza testified that she coaches victims
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on what to say during a pretext call in order to elicit incriminating statements from
perpetrators.
Following the close of evidence, the jury was instructed with the pattern criminal
jury instruction for rape. (CALCRIM No. 1000.) Thus, the jury was informed that it was
required to determine whether defendant had intercourse with the victim without consent
by means of “ ‘force, violence, duress, menace[,] or fear,’ ” with the understanding that
“ ‘ “[s]exual intercourse” means any penetration, no matter how slight, of the vagina or
genitalia by the penis.’ ” (See CALCRIM No. 1000.) The jury was also told that if it did
not find defendant guilty of the greater crime of rape, it may find him guilty of the lesser
crime of simple battery. The jury was instructed with the pattern jury instruction for the
lesser included charge of simple battery. (CALCRIM No. 960.) The jury was also
instructed that defendant could only be convicted of either crime if they found him guilty
beyond a reasonable doubt.
During its single day of deliberation, the jury had one question for the trial court.
The jury asked for clarification on when each of the three charged rapes had allegedly
occurred. The court responded that it could not provide any more specific information
and reiterated that defendant was charged with three separate counts of rape, one count
attributed to April 5, and the other two attributed to April 6. The jury reached a verdict
soon after receiving the court’s response. The jury found defendant guilty of all charges,
including three counts of rape by force or fear, two counts of criminal threats, and one
count of inflicting corporal injury upon his wife, the victim. As to the corporal injury
count, the jury found true the allegation that defendant inflicted great bodily injury on the
victim. The trial court later found true two aggravating factors. The trial court sentenced
defendant to an aggregate term of 26 years four months in prison.
Defendant appeals.
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DISCUSSION
Defendant contends the trial court erred by not sua sponte instructing the jury with
the lesser included offense of assault with intent to commit rape for the rape charge at
issue in count three and that he was prejudiced by the error. We conclude the court did
not err.
Trial courts must sua sponte instruct the jury on lesser included offenses of the
charged offense when “ ‘there is substantial evidence the defendant is guilty only of the
lesser’ ” offense. (People v. Chenelle (2016) 4 Cal.App.5th 1255, 1261; see People v.
Breverman (1998) 19 Cal.4th 142, 148-149, disapproved on another ground in People v.
Schuller (2023) 15 Cal.5th 237, 260 & fn. 7 [narrowing Breverman’s rule for cases
involving murder and murder-specific defenses].) The parties agree assault with intent to
commit rape is a lesser included offense of forcible rape. (Accord, People v. Lewis
(1977) 75 Cal.App.3d 513, 521; CALCRIM No. 1000.) The parties disagree, however,
about whether substantial evidence existed to support a sua sponte instruction on assault
with intent to commit rape for the rape charged in count three.
“[T]he ‘ “substantial evidence requirement is not satisfied by ‘ “any evidence . . .
no matter how weak,” ’ but rather by evidence from which a reasonable jury could
conclude ‘that the lesser offense[ alone] was committed].’ ” ’ ” (People v. Wilson (2021)
11 Cal.5th 259, 297.) “ ‘Speculative, minimal, or insubstantial evidence is insufficient to
require an instruction on a lesser included offense.’ ” (People v. Thomas (2023)
14 Cal.5th 327, 385-387 [holding no substantial evidence existed for a self-defense
instruction when no actual evidence showed the defendant believed he was in imminent
danger].) The standard of review is de novo, and we consider the evidence in the light
most favorable to defendant. (People v. Campbell (2020) 51 Cal.App.5th 463, 501.)
Defendant contends the trial court erred in failing to sua sponte instruct the jury on
assault with intent to commit rape because there was substantial evidence the completed
offense of rape, specifically the element of penetration, did not occur for the rape charged
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in count three. To support this argument, defendant points to: the victim’s description of
defendant not having an erection at various times throughout the night, the victim’s
recantation of her rape allegations at trial, the victim’s use of the phrase “sexual assault”
instead of the word “rape” during her April 6 report, the victim testifying that she and
defendant had sex only twice, and the ambiguity in the victim’s April 6 report. We are
unpersuaded.
Initially, there was direct, unequivocal evidence that penetration sufficient to
establish rape occurred during the timeframe associated with the rape charged in count
three. (Evid. Code, § 410 [“ ‘[D]irect evidence’ means evidence that directly proves a
fact, without an inference or presumption, and which in itself, if true, conclusively
establishes that fact”].) Twice on April 6 the victim reported defendant was able to
“insert” his penis into her vagina during the sexual encounter around 2:00 a.m. At trial,
although the victim recanted her allegations of rape, the recantation went only so far as
the element of consent—she never recanted penetration; indeed, the victim twice
confirmed in her testimony that intercourse occurred in the 2:00 a.m. to 3:00 a.m. period.
These statements amount to direct, unambiguous evidence of penetration not contested at
trial.
Defendant suggests the victim’s descriptions of his inability to obtain an erection
at times throughout the night contradict her claims of penetration. Specifically, defendant
argues this demonstrated he was impotent and that his actions thus amounted only to
masturbation or “a frustrated attempt at sexual intercourse.” Not so. As the jury was
instructed,“ ‘ “Sexual intercourse” means any penetration, no matter how slight, of the
vagina or genitalia by the penis.’ ” (See CALCRIM No. 1000, italics added.)
“[N]otwithstanding the term’s apparently plain meaning, appellate courts have long held
that vaginal penetration does not require penetration of the vagina. [Citation.] Rather,
‘[p]enetration of the external genital organs is sufficient to constitute sexual penetration
and to complete the crime of rape even if the rapist does not thereafter succeed in
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penetrating into the vagina.’ ” (People v. Paz (2017) 10 Cal.App.5th 1023, 1037.) In
other words, “although the term vagina has a well-established anatomical meaning,
California courts have long treated it as a term of art synonymous with ‘female private
parts.’ ” (Ibid., italics omitted.)
Here, defendant’s inability to obtain an erection at various times throughout the
night cannot amount to substantial evidence of no penetration given the uncontradicted
facts in the record. No reasonable jury could find that penetration of the external female
genitalia did not occur when defendant forced himself between the victim’s legs and
rubbed his penis against her bare vagina for two hours in an attempt to achieve an
erection. (Accord, People v. Paz, supra, 10 Cal.App.5th at p. 1037; People v. Karsai
(1982) 131 Cal.App.3d 224, 233 [penetration of the external female genitalia, including
pushing a penis between the labia, is sufficient to establish rape], disapproved on another
ground in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.)
Also unpersuasive is defendant’s reliance on the victim’s use of the phrase “sexual
assault” instead of the word “rape” as evidence that penetration did not occur for the rape
charged in count three. The victim described the nature of the sexual assault in such a
way that left no doubt as to the meaning of her specific word choice of sexual assault.
Given her explanation, the fact the victim described defendant’s conduct as a sexual
assault instead of a rape is of no consequence to our analysis.
Nor, as defendant suggests, does the victim’s testimony about having sex with
defendant only twice provide substantial evidence of no penetration for the rape charged
in count three. This is because the victim twice testified to having sex with defendant
between 2:00 a.m. and 3:00 a.m., the timeframe supporting the rape charged in count
three. Indeed, the only sexual activity expressly disavowed by the victim at trial was that
which occurred around 4:00 a.m.—the timeframe supporting the third rape charge (count
four). Thus, if the victim’s testimony about having sex only twice were believed, a
reasonable jury could not determine the 2:00 a.m. to 3:00 a.m. period was not one of the
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two sexual encounters given the victim’s consistency in reporting sex and penetration at
that time across her testimony and her April 6 report.
As for ambiguity in the victim’s April 6 report, we acknowledge that the report
was initially disorganized with arguably contradictory statements; however, unlike
defendant implies, the arguable ambiguity did not go to whether penetration occurred. At
no point during the April 6 report or the victim’s testimony did the victim deny or supply
an equivocal answer regarding whether penetration occurred in the 2:00 a.m. to 3:00 a.m.
timeframe. The debatable contradictions do not involve the element of penetration—they
primarily relate to the timing of the incidents, including when defendant was at the store
and when the various sexual encounters occurred, and these ambiguities were clarified
once the officer began guiding the visibly upset victim through each event. Indeed, the
jury had just one question during deliberation, and it involved only the timing of the
separate rape charges, not the element of penetration. After receiving a response from the
trial court, the jury reached its verdicts promptly, finding defendant guilty of all charges.
Thus, defendant’s argument that ambiguity in the victim’s April 6 report supplies
evidence that penetration did not occur is unpersuasive.
Further, we are not persuaded by defendant’s claims that the evidence supporting
rape was both highly contested and slight, and that “there was virtually no likelihood that
the jury would have accepted simple battery as a sufficient lesser offense of forcible
rape.” The question before us is not whether the evidence of rape is highly contested, but
whether the evidence of penetration is highly contested or slight. In that regard, the
element of penetration was not contested. Defense counsel’s theory at trial centered only
upon the element of consent, not penetration; indeed, in closing argument defense
counsel expressly conceded that penetration occurred for the rape charges and stated that
it was the other elements of rape that were not proven. (Cf. People v. Sakarias (2000)
22 Cal.4th 596, 630 [the element in dispute “was not only shown by overwhelming and
undisputed evidence, but was expressly conceded by [the defendant’s] attorney in
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argument to the jury”].) And, as discussed, the evidence supporting completed
penetration for the rape charged in count three was not slight.
In conclusion, after a de novo review of the evidence, we conclude the trial court
did not err because there was no substantial evidence—individually or cumulatively—in
the record “ ‘ “from which a reasonable jury could conclude ‘that the lesser offense, but
not the greater, was committed’ ” ’ ” for the rape charged in count three. (People v.
Wilson, supra, 11 Cal.5th at p. 297, italics omitted.)
DISPOSITION
The judgment is affirmed.
/s/
ROBIE, Acting P. J.
We concur:
/s/
KRAUSE, J.
/s/
MESIWALA, J.
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