People v. Shepard CA3 ( 2022 )

Filed 4/18/22 P. v. Shepard 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Placer)
----
THE PEOPLE, C093912
Plaintiff and Respondent, (Super. Ct. No. 62153369)
v.
STEPHEN MATTHEW SHEPARD,
Defendant and Appellant.
A jury found defendant Stephen Matthew Shepard guilty of forcible rape of his
partner, among other charges, after he repeatedly shoved his hand down her throat during
an argument and then asked her to have sex with him, to which she relented. On appeal,
defendant contends there is insufficient evidence supporting the jury’s finding the victim
did not consent to the sex. We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
Defendant was charged with misdemeanor domestic violence contempt of court by
violating a protective order (count 1; Pen. Code, § 166, subd. (c)(1)(B); statutory section
citations that follow are to the Penal Code); torture (count 2; § 206), with the
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enhancement it resulted in great bodily injury (§ 12022.7); forcible rape (count 3; § 261,
subd. (a)(2)), with a multiple victim allegation (§ 667.71, subds. (a), (b), & (e)), which
was severed for trial; corporal injury to a cohabitant (count 4; § 273.5, subd. (a)), with the
enhancement it resulted in great bodily injury (§ 12022.7) and with the allegation he had
a prior misdemeanor conviction for the same offense (§ 273.5, subd. (f)(1)); 12 counts of
misdemeanor domestic violence contempt of court by violating a protective order (counts
5 & 7-17; § 166, subd. (c)(1)(A)); and dissuading a witness from prosecuting a crime
(count 6; § 136.1, subd. (b)(2)). There was also the allegation defendant had a prior
serious or violent felony conviction (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-
(d)) as to counts 2, 3, 4, and 6.
At defendant’s trial in October 2020, Melissa R. testified that on June 30, 2017,
she was an employee at a bank in Lincoln when a woman walked in who “was visibly
marred, her throat was huge, shaken up, no shoes on, and asked me to call 911.” She also
told Melissa R. her husband tried to kill her. Lincoln Fire Department Captain Norman
Kent, Jr., responded to the call and he said that the woman had facial trauma and it was
hard for her to speak. She told him her husband tried to force his fist down her throat
multiple times.
Officer Todd Rayback also responded to the bank, who knew the woman to be
Crystal P. because he had previously arrested defendant for violating restraining and
protective orders against Crystal. Rayback similarly testified to seeing Crystal’s face
injuries and her seeming “very frightened” and “very scared.” He also said Crystal told
him defendant had accused her of sleeping with another man, they got into an argument,
and he repeatedly tried to shove his hand into her mouth and throat over a couple hours.
Defendant eventually calmed down and asked Crystal to have sex with him. She told
Rayback she originally “said no, but at which time he grabbed her again and she got
fearful that the assault was going to continue, so she agreed to have sex with him.” After
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the sex, defendant told Crystal to take a shower, she said she first needed a cigarette from
her car, left the house and then ran to the bank.
Crystal was taken to the hospital, where physician assistant Rachel Holmes treated
her. Crystal told Holmes defendant accused her of cheating and wanted to have sex with
her, “[s]he did not want to have sex with him. They got into an altercation at which point
she says that he put his whole hand in her mouth. She felt like she was gagging and
couldn’t breathe. She eventually had consented to have sex with him to get away from
him, and then was able to go leave and get cigarettes where she went to a bank and called
the police.” Crystal had a cut in her throat that was allowing air into her neck and
eventually needed to go the intensive care unit. A sexual assault examination showed
injuries consistent with Crystal having sex within the past 72 hours.
Another treating physician, Dr. Vanessa Walker, testified that Crystal experienced
respiratory failure and had to be intubated and placed on a ventilator. She said Crystal’s
injuries were life threatening and she would have died if she hadn’t been placed on life
support.
Crystal testified at trial that she had been with defendant for 23 years, but they
were never married. On June 30, 2017, she recalled going to the emergency room but did
not remember an assault by defendant, defendant requesting to have sex or them having
sex, her going to the bank, or her speaking to law enforcement. She said she didn’t
remember these things because she didn’t want to remember them so she blocked them
out of her mind.
Jaime Gerigk, chief program officer for a domestic violence and sexual assault
agency, testified regarding battered women’s syndrome generally without reviewing any
specifics about this case. She described it as a cycle through a honeymoon phase, then a
tension-building phase, followed by a triggered explosion of abuse, and then the cycle
begins again with a false honeymoon phase where the abuser may apologize and promise
it won’t happen again. She explained that during this cycle there can be sexual abuse,
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stating it is “very confusing for victims because oftentimes what happens is the abusive
partner might use sex as a way to make up . . . after an abusive incident. And it’s not
really safe or consensual for that victim to say no at that point because they were just
abused. And so there is a lot of fear around saying no or declining their abusive partner
for any kind of sexual activity because of the abusive incident.”
The jury found defendant guilty on all counts and found all allegations true, except
that for count 2 it found him not guilty of torture but guilty of the lesser offense of battery
causing serious injury.
On February 11, 2021, the trial court sentenced defendant to a total of 29 years in
prison, comprised of: 364 days concurrent in county jail for count 1; four years (upper
term) for count 2, doubled for the prior strike but stayed under section 654; eight years
for count 3, doubled for the prior strike; one year four months (midterm) for count 4,
doubled for the prior strike, and an additional one year four months (one-third midterm)
for the great bodily injury enhancement; 364 days concurrent in county jail for counts 5
and 7 through 17; and two years (midterm) for count 6, doubled for the prior strike; plus
five years for the prior conviction.
DISCUSSION
Defendant argues that the conviction for forcible rape must be reversed because
there was insufficient evidence supporting the “lack of consent” element. He contends
the only evidence of nonconsensual sex is the expert’s testimony that no sex during an
abusive relationship’s cycle of violence is consensual, which cannot prove Crystal did not
consent in this specific instance. Instead, he summarizes the evidence as: “Crystal
consented because she was afraid not to consent, and that this consent occurred after
appellant calmed down.”
Forcible rape is “an act of sexual intercourse accomplished . . . [¶] . . . [with a]
person who is not the spouse of the” perpetrator where “it is accomplished against a
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person’s will by means of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person or another.” (§ 261, subd. (a)(1), (2).) Consent
means “positive cooperation . . . pursuant to an exercise of free will. The person must act
freely and voluntarily.” (§ 261.6.) “Actual consent must be distinguished from
submission. . . . A selection by the victim of the lesser of two evils—rape versus the
violence threatened by the attacker if the victim resists—is hardly an exercise of free
will.” (People v. Giardino (2000) 82 Cal.App.4th 454, 460, fn. 3; People v. Washington
(1962) 203 Cal.App.2d 609, 610 [“Consent induced by fear is no consent at all”].) And
evidence of “[a] current or previous dating or marital relationship is not sufficient to
constitute consent.” (§ 261.6.)
Where the sufficiency of evidence is challenged on appeal, we review the record
in the light most favorable to the judgment to determine whether it discloses substantial
evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence is evidence
that is “reasonable, credible and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (Ibid.) If substantial
evidence supports the verdict, we defer to the factfinding. (Ibid.) We will not set aside
judgment for insufficient evidence unless it clearly appears, “that on no hypothesis
whatever is there sufficient substantial evidence to support the verdict of the jury.”
(People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Here, there is substantial evidence Crystal did not consent to sex with defendant.
Officer Rayback and Holmes testified that Crystal said she consented only because “she
got fearful that the assault was going to continue” and “she eventually had consented to
have sex with him to get away from him.” This is consent by submission, which is not
actual consent. Defendant’s own summary of the evidence indicates this fallacy-
consenting “because she was afraid not to consent” is not consent. The expert testimony
supports this conclusion, but this conclusion does not rely solely on this testimony.
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This testimonial evidence is further supported by the extensive nontestimonial
evidence that defendant viciously attacked Crystal, the two had sex, and then she fled to
the bank. Crystal was so badly injured she had to be sent to the intensive care unit and
intubated and Dr. Walker testified her injuries were life threatening. This evidence
strongly indicates a lack of consent because anyone who was beaten into such a state is
very unlikely to be capable to then immediately consent to sex. Her immediate flight
from the location of a vicious assault confirms she was doing and saying only what was
necessary to get away from defendant.
Finally, the lone affirmative evidence defendant supplies in support of consent is
“the ample evidence that Crystal and [defendant] maintained their 23-year intimate
relationship after 2016.” Evidence of a current or previous relationship cannot be
sufficient to constitute consent, nor does it render insufficient the overwhelming evidence
there was no consent here.
DISCUSSION
The judgment is affirmed.
HULL, J.
We concur:
BLEASE, Acting P. J.
RENNER, J.
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