P. v. Griffin 7/30/02 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B152731

Case Date: 07/30/2002

Preview:Filed 7/30/02

CERTIFIED FOR PARTIAL PUBLICATION

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. BRYANT D. GRIFFIN, Defendant and Appellant.

B152731 (Super. Ct. No. GA043525)

APPEAL from a judgment of the Superior Court of Los Angeles County. C. Edward Simpson, Judge. Affirmed in part and reversed in part. Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted appellant, Bryant D. Griffin, of five counts of child molestation and of one count of forcible rape. He contends his rape conviction must be reversed
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Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II, III and IV of the Discussion section.

because the evidence of "force" was insufficient as a matter of law to sustain the conviction. He also claims the trial court erred in failing to instruct sua sponte on the legal definition of "force" required for a forcible rape conviction. In addition, appellant argues he was denied due process from admission of evidence of prior sexual offenses and by the court's instruction regarding permissible uses of this propensity evidence. Finally, appellant claims the court erred in failing to rule on the merits of his new trial motion based on ineffective assistance of counsel. We agree there was insufficient evidence of "force" to sustain the conviction for forcible rape and reverse appellant's conviction on this count. However, we find no other prejudicial error and accordingly affirm the judgment in all other respects.

FACTS AND PROCEEDINGS BELOW

Latasha J. had known appellant since she was five years old. From 1992 appellant and Latasha's mother had an on again, off again, relationship. In 1992 appellant lived with Latasha's mother and her children in an apartment on Marengo Avenue in Pasadena. Appellant started molesting Latasha in 1994 when she was between ten and eleven years old. According to Latasha, the pattern of molestations was always the same. Typically, appellant would first have Latasha touch his penis. Then appellant would put his hand and then his mouth on Latasha's vagina. Latasha complained to her grandmother, aunt and schoolteacher. However, she did not tell her mother because appellant had repeatedly told Latasha her mother would not believe her. Latasha's teacher reported the incident to the police. Ultimately, appellant pled no contest to a misdemeanor charge of annoying or molesting a child under the age of 18. Appellant received probation and the court issued an order to stay away from Latasha. Social workers arranged to have Latasha live with her maternal grandmother.
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Penal Code section 647.6. All further statutory references are to the Penal Code unless otherwise noted. 2

Because Latasha's mother's relatives did not like appellant she believed they had convinced Latasha to make up these charges against appellant. Because of her mother's response and the fact appellant only received probation, Latasha eventually came to believe there was no reason to report further misconduct because nothing would happen anyway. In the meantime, Latasha's mother and brother moved into another apartment in Pasadena. Appellant kept clothes at this residence and often spent the night there. Latasha moved back in with her mother, brother and appellant when she was 13 years old and attending continuation school. She typically arrived home from school around 1:30 p.m. Her mother would be at work. Sometimes her brother would be at work as well. Appellant worked a series of temporary jobs and kept irregular hours. On several afternoons Latasha would be at home alone with appellant. Between 1996 and 1997 appellant molested Latasha once or twi ce a week, "whenever he felt like it." Again, the molestation followed a general pattern. Appellant would grab Latasha's hand and place it on his penis until he had an erection. He would then digitally penetrate Latasha's vagina and orally copulate her. Appellant often told Latasha if she complained to her mother her mother would not love her anymore, and would not believe her in any event. Latasha told no one about the abuse, believing nothing would come of it anyway if she did. Appellant's sexual activity with Latasha continued until mid-June 1998 when Latasha got a boyfriend and spent most of her time away from her mother's residence. In May 2000 appellant was no longer living with Latasha's mother but occasionally spent the night when he had early medical appointments nearby the next day. On one such night in May, Latasha came home around 1:00 a.m. or 2:00 a.m. She did not have a house key. Appellant, who was in the living room watching television, let her into the apartment. Latasha changed into an over sized T-shirt and went into the kitchen to prepare a bottle for her infant daughter. Appellant joined Latasha in the kitchen/den area.

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According to Latasha, the "same process" "started again." Appellant had her touch his penis until he got an erection. Appellant digitally penetrated Latasha and then told her to lie on the den floor. She complied. Appellant orally copulated Latasha. Appellant then got on top of Latasha. He began to insert his penis into her vagina. After he thought it was going in he held Latasha's wrists at either side of her shoulders. According to Latasha, this was the first time appellant had ever attempted to have intercourse with her. Before appellant was able to achieve full penetration Latasha said "no, no. I don't want to." She got up and went to her room. Initially Latasha told no one about the incident. However, in the meantime her mother and appellant began battling over custody and visitation rights to their then threeyear-old son, R.. In June appellant filed a custody action against Latasha's mother to secure those rights. This prompted Latasha to tell her mother how appellant had molested her. Latasha explained she finally shared this information with her mother because she did not want appellant to have the opportunity to do the same thing to R.. Latasha's mother was too distracted by the custody proceedings to report this information to the police. She tried to convince Latasha to report the incidents to the police herself, but Latasha refused. In July 2000, Latasha's mother attended a mediation concerning R.'s custody. She told the mediator appellant had molested Latasha and stated she also believed he was molesting R.. After the mediation, Latasha agreed to go with her mother and report the incidents of abuse to the police. Appellant testified on his own behalf. He denied any of the alleged acts of molestation occurred. Appellant testified Latasha was five years old when he started dating her mother. He lived with Latasha's mother on and off for years. According to appellant, they broke off and resumed their relationship at least 12 times over the course of several years. Throughout this entire time appellant held some type of temporary job. During gaps in his employment he "booked" racehorses.

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Appellant explained the 1994 incident as an attempt to discipline Latasha. He stated he grabbed her hands in an attempt to scare her into cleaning her room. Appellant said Latasha would never comply and would never listen to him. On several occasions Latasha told him he was not her father and for this reason she did not have to obey him. He acknowledged he pled no contest to a charge of what he referred to as child "harassment." Appellant also admitted suffering a prior felony conviction for purchasing/possessing cocaine base for sale. Appellant testified he rarely saw Latasha while living with her mother because he was always at work and because Latasha was often not home. As Latasha had admitted, she would leave the house for days at a time. She had done this so often Latasha's mother had filed several missing persons reports during Latasha's younger years. Appellant denied he had ever touched Latasha inappropriately and denied the allegations of molestation and rape. Appellant believed Latasha and her mother had concocted these stories to gain leverage in the custody dispute over R.. Heather P. had known Latasha since the seventh grade. They used to walk home from school together and discuss sex, boys and other topics. Heather also knows appellant well. Appellant dated/lived with her mother when he was not dating/living with Latasha's mother. According to Heather, Latasha never spoke negatively about appellant and never told her appellant had been molesting her. In Heather's opinion, Latasha is not a truthful person. Bennett Lewis is appellant's friend and had been appellant's co-worker. For a period between 1996 and 1997, they worked a seven-days-a-week construction job at a Macy's site in East Los Angeles from 3 in the afternoon to 4 in the morning. In April 2000 when appellant became ill and was living in Upland, he drove appellant to his dialysis treatments. Lewis knew Latasha's mother through appellant. Lewis called her the day she received the legal notice of appellant's custody action. She was angry. According to Lewis, she was loud and used profanity. Evantine Hughes met appellant at a dialysis clinic the year before. He often spent evenings at her residence in Altadena to check on her because she was so sick. Appellant 5

sometimes spent the night at her residence when he had dialysis treatments the next day at a clinic located near her home. Jenette Griffin is appellant's mother. At the time of trial she had known Latasha's mother for 12 or 13 years. They often socialized and even sometimes shared private nursing jobs. She could not recall a single evening in May 2000 when appellant could have spent the night at Latasha's mother's apartment. He had spent every night in May either at her residence or at Ms. Hughes's residence in Altadena. An information charged appellant with committing (1) a lewd and lascivious act between October 1, 1996, and February 1997, on Latasha, then a minor under the age of 14; (2) oral copulation on Latasha, then a minor under the age of 16, between February 1997 and October 1998; (3) sexual penetration with a foreign object between February 1997 and October 1998 on Latasha, then a minor under the age of 16; (4) forcible rape; (5) oral copulation on Latasha, then a minor under the age of 18, between May 1, 2000, and May 30, 2000; and sexual penetration with a foreign object on Latasha between May 1, 2000, and May 30, 2000, then a minor under the age of 18.
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The jury convicted appellant as charged. The trial court denied appellant's motion for new trial and request for probation and sentenced him to a total term of six years. This appeal followed.

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Section 288, subdivision (a). Section 288a, subdivision (b)(2). Section 289, subdivision (i). Section 261, subdivision (a)(2). Section 288a, subdivision (b)(1). Section 289, subdivision (h). 6

DISCUSSION

I.

THE RECORD CONTAINS INSUFFICIENT EVIDENCE OF FORCE TO SUSTAIN APPELLANT'S CONVICTION FOR FORCIBLE RAPE. Appellant does not specifically challenge his five convictions for committing lewd

and lascivious acts, sexual penetration with a foreign object or oral copulation. He does, however, contend the forcible rape conviction must be reversed due to insufficient evidence of "force." When the sufficiency of the evidence is challenged on appeal, we review the "whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." This necessarily requires each essential element of an offense be supported by substantial evidence. However, a judgment of conviction will not be set aside unless it is clearly shown there is no basis on which the evidence can support the conclusion of the jury.
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The offense of rape is defined as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, . . . [

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