People v. Shepard CA3

Filed 4/18/22 P. v. Shepard CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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