People v. Keovilayphone

Opinion

BUTZ, J. A jury convicted defendant John Keovilayphone of rape in concert (Pen. Code, §§ 264.1, 261, subd. (a)(2)1—count I), sexual penetration in concert (§§ 264.1, 289, subd. (a)(1)—count II), simple assault (§ 240— count HI, lesser included offense), and sexual penetration with a foreign object (§ 289, subd. (a)(1)—count VI). With respect to the first two counts, the jury made special findings that defendant kidnapped the victim and that her movement substantially increased the risk of harm. (§ 667.61, subds. (d)(2) & (e)(1).)

Sentenced to state prison for 25 years to life plus 17 years, defendant seeks reversal on four grounds: (1) the trial judge’s failure to provide sufficient guidance in response to a juror inquiry about the definition of rape; (2) error in instructing the jury that rape in concert was a general intent crime; (3) refusal to give a requested jury instruction on the lesser included offense of attempted rape; and (4) refusal to instruct the jury that absence of flight immediately after the crime could be considered evidence of innocence. We find none of these grounds meritorious and shall affirm the judgment.

[494]FACTUAL AND PROCEDURAL BACKGROUND

Nkau X. (Nkau) and the victim T.T. (T.) live in Oroville and are high-school-age cousins. On March 14, 2003, Nkau and her friend, Ker, invited T., who was then 15 years old, to a birthday party in Marysville. The two girls traveled there with Ker and his friend Meng. The birthday party was being held for Meng’s brother, Mong, in a detached garage at their residence. A third brother, Keng, was also there.

The cousins arrived at the party around 6:00 p.m. There were about 10 to 15 people in attendance. At some point, defendant, a friend of Meng’s who was nicknamed “Blacky,” arrived. Defendant is Laotian, and had darker skin than the other partygoers, who were all Hmong. He also stood out on account of his large size.

During the party, T. asked defendant what time it was because she noticed that he was the only one there wearing a watch.

Beer and hard liquor were served at the party. T. did not want to drink alcohol, but was told that she would not be taken home unless she did. She drank about two “pretty big” cups half-filled with hard liquor. Everyone at the party was inside the garage except Mong and Nkau. T. felt sick and began throwing up, at which point several males, including defendant and Meng, grabbed her from behind. Someone turned off one of the lights while Meng and defendant tried to insert their fingers in her vagina. Defendant put his finger inside her vagina, ignoring her pleas for him to stop. T. knew it was defendant because she “could feel his watch against [her] skin.” He removed his hand from her pants when she vomited again.