People v. Guerra

*1166 WERDEGAR, J., Dissenting.

The evidence at defendant’s trial amply proved he killed the victim, Kathleen Powell, in a brutal and unprovoked attack. His offense was at least second degree murder and may have been a greater crime. What the evidence failed to sufficiently demonstrate is that defendant killed Powell while engaged in the attempted commission of rape. For this reason, I dissent from affirmance of defendant’s conviction for first degree murder with an attempted rape special circumstance. (Pen. Code, §§ 189, 190.2, subd. (a)(17)(C).)

In reviewing a criminal conviction or special circumstance finding challenged as lacking evidentiary support, “the court must 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.” (People v. Johnson (1980) 26 Cal.3d 557, 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ].) In the present case, the evidence bearing on defendant’s actual intent when he attacked Powell was simply too ambiguous and uninformative—of too little “solid value” (ibid.)—to support the attempted rape finding.

I agree with the majority that sufficient evidence showed defendant was sexually interested in Powell. But his repeated chant of “Kathy for me, me for Kathy” suggests the expectation, however deluded, of a consensual encounter, at least as much as—arguably even more than—it suggests an intent to rape.

Defendant, who the evidence showed was intoxicated on the afternoon of the crime, apparently thought Powell returned his sexual interest. Defendant’s coworker, Braziel, tried to talk him out of this mistaken belief, stating Powell liked him only as a friend, but defendant’s continued chanting of “Kathy for me, me for Kathy” suggests he rejected Braziel’s admonition. In this light, that defendant made an excuse to remain at the worksite and inquired of a neighbor whether she had come from Powell’s house does not point distinctly to a planned forcible attack. I agree with the majority that a jury could reasonably infer defendant planned to catch Powell alone (maj. opn., ante, at p. 1131), but I disagree a jury could reasonably infer from this, beyond a reasonable doubt, that he intended to rape her. The jury had no way to know whether defendant went to Powell’s home with the intent to rape her or merely anticipated consummation of what he thought was mutual attraction.

The majority seeks to buttress its conclusion that defendant’s sexual interest in Powell and hope to find her alone supports a finding he intended to rape her (maj. opn., ante, at p. 1131) by pointing to the nature of Powell’s wounds. Powell’s body was fully clothed when discovered, and the physical *1167 evidence showed neither semen nor genital trauma. The majority reasons, however, that the nature and location of Powell’s wounds, in particular the pokes and slices to her breasts, gave rise to an inference that “defendant intended to force Powell to do something against her will,” i.e., “to submit to his sexual intent.” (Ibid.) But such wounds are as consistent with a sadistic desire to inflict pain—a desire prompted by rejection—as with an attempt to rape.

At trial, the prosecutor argued the wounds were “a substitute form of sex,” i.e., sexual sadism. A sadistic intent may be evidence of an intent to torture; it is not, however, the same as an intent to rape. The physical evidence allowed a reasonable inference that defendant tortured and killed Powell out of anger because she refused him or out of jealousy over her friendship with his coworker, Braziel. That defendant poked and slashed Powell’s breasts in an attempt to coerce her into sexual intercourse is also possible, but the evidence did not allow a reasonable juror to so find beyond a reasonable doubt. To say the cutting marks on Powell’s breasts support a finding that defendant attempted to rape her is speculative at best.

The majority relies in part on People v. Holloway (2004) 33 Cal.4th 96, 138-139 [ 14 Cal.Rptr.3d 212 , 91 P.3d 164 ], in which we distinguished earlier cases finding insufficient physical evidence of attempted rape. But Holloway involved much stronger evidence than this case. The defendant earlier had clearly tried to rape one victim (Debbie) and had then entered the townhouse where he killed the other victim (Diane). Diane, who her mother testified never slept nude, was found nude on her bed, her bedroom in disarray, her panties tucked under the mattress. She had ligature marks on her wrists and ankles. We held the evidence sufficient to find the defendant had entered the townhouse with the intent to rape Diane. (Ibid.) In the present case, the evidence shows neither disrobement, nor indications of bondage, nor the recent or contemporaneous attempt to rape another victim. Nor did defendant declare his intent to rape the victim, as in People v. Carpenter (1997) 15 Cal.4th 312, 387 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ], also cited by the majority (maj. opn., ante, at p. 1132). In determining the nature of Powell’s wounds is substantial evidence that defendant killed her in the commission of rape or attempted rape, the majority extends Holloway beyond what the opinion will support.

As the majority observes, intent may be shown by circumstantial evidence. (Maj. opn., ante, at p. 1129.) But the circumstantial evidence must be substantial—it must be such that a reasonable jury could find it allows only one reasonable inference, that of criminal intent. In my view, the evidence of Powell’s wounds is not of that type or quantity. A reasonable jury simply could not know beyond a reasonable doubt that defendant, when he attacked Powell, intended to force her to have sex with him before killing her.

*1168 Defendant’s killing of Powell, whether or not performed with the intent to rape, was murder. It may have risen to first degree capital murder on the theory the wounds to Powell’s breasts showed she was tortured before being killed (Pen. Code, §§ 189, 190.2, subd. (a)(18)), though this theory was not presented to the jury. But even viewing the record “in the light most favorable to the judgment below” (People v. Johnson, supra, 26 Cal.3d at p. 578 ), there was simply insufficient credible evidence of “solid value” (ibid.) from which a reasonable jury could conclude beyond a reasonable doubt that defendant, when he attacked Powell, intended to force sexual intercourse on her. The conviction of first degree murder and the special circumstance finding, both dependent on a finding of attempted rape, should be reversed.

Moreno, J., and Gilbert, J., * concurred.

Appellant’s petition for a rehearing was denied May 24, 2006. Werdegar, J., and Moreno, J., were of the opinion that the petition should be granted.

Presiding Justice of the Court of Appeal, Second Appellate District, Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.