People v. Hauke

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CHARLES HAUKE, Defendant and Appellant.

B313790

California Court of Appeals, Second District, Fifth Division

December 27, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. YA098753 Scott T. Millington, Judge. Affirmed as modified

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Wyatt E. Bloomfield and Michael C. Keller Deputy Attorneys General, for Plaintiff and Respondent.

KIM J.

I. INTRODUCTION

Following a jury trial, defendant Joseph Charles Hauke was convicted of forcible rape in violation of Penal Code^[1] section 261, subdivision (a)(2). Defendant appeals, contending that the trial court erred when it: failed to excuse the entire venire panel following its sustaining of defendant's Wheeler/Batson^[2] motion; excluded certain testimony at trial; delivered jury instructions; miscalculated presentence custody credits; and issued a protective order protecting a person who was not a victim of a crime. Defendant additionally contends that the prosecutor engaged in misconduct during closing argument.

We will modify the judgment to reflect the correct number of presentence custody credits. We will also modify the protective order. In all other respects, we affirm.

II. BACKGROUND

A. Procedural History

On October 28, 2019, the Los Angeles County District Attorney (District Attorney) charged defendant by information with one count of rape (§ 261, subdivision (a)(2)) and alleged that the rape was committed during the commission of first degree burglary (see § 667.61, subds. (a) &(d)).

On May 17, 2021, a jury found defendant guilty of rape, but could not reach a verdict on the alleged enhancement. The trial court subsequently dismissed the enhancement allegation.

On July 14, 2021, the trial court sentenced defendant to the middle term of six years in state prison and awarded him 575 days of presentence custody credit. The court also issued a protective order that listed as protected persons both the rape victim, Susan, and her husband, Brandon.

B. Trial

1. Prosecution Case

Susan and her husband Brandon lived in a duplex in Lomita with their three young children. Brandon and defendant were work colleagues. Both men were casual longshoremen who did jobs at the port that were not taken by union members. Brandon and defendant were on friendly terms and in March or April 2018, defendant accompanied Brandon to his home, where defendant first met Susan.

On May 6, 2018, Brandon and defendant reported to work and upon learning that neither would be picked up for a job, Brandon invited defendant over to his house to hang out and "'drink some beers ....'" Brandon and defendant arrived at the home sometime between 8:30 and 9:30 a.m. During the course of the day and evening, the two men proceeded to drink alcohol and smoke marijuana.

Susan joined defendant and Brandon and consumed three shots of whiskey from Brandon's cup and two 16-ounce beers.

At some point, Susan acted "silly" with Brandon, slow dancing with him and sitting on his lap. Defendant did not participate in the dancing. Susan did not flirt with defendant at any point during the day.

At 7:00 p.m., Susan went inside the home to put the children to sleep. Afterwards, she went to bed by herself. The children slept nearby in the small home.

Brandon and defendant became increasingly intoxicated and Brandon eventually passed out on a lounge chair at around 8:30 to 9:30 p.m.

Susan awoke to the feeling of a "jab" inside her vagina. Susan then realized that someone was on top of and engaged in sexual intercourse with her. When Susan saw that her assailant was defendant, she yelled at him to get off her, punched him, and attempted to push him away. Defendant did not get off until Susan kicked him. Defendant then removed his penis, stumbled back, and pulled up his pants. Susan put on a pair of shorts and began pushing defendant out of the bedroom. Susan continued to scream at defendant while pushing him out of her home.

Susan woke up Brandon and yelled that defendant had raped her and she was going to kill defendant. Defendant told Brandon that the sex was consensual.

Michael Hempstead was a neighbor of Susan and Brandon. Hempstead met defendant on the day of the crime. Later that evening, Hempstead, while in his living room, observed defendant walking around in the bathroom of Susan and Brandon's house. Defendant walked around in circles in the bathroom on three separate occasions. Thirty minutes after the third time, Hempstead heard Susan yell that she had been raped. Hempstead saw defendant shove Susan.

Hempstead went outside and jumped between Susan and defendant. Hempstead told defendant to leave. Defendant complied and left in his car but returned shortly thereafter and asked for his phone. According to Hempstead, after there was talk of calling the police, defendant left the property again.

Brandon called 911 and told the operator that his wife had been raped by his friend. The operator directed Brandon to tell Susan, who had been in the shower, to get out. Susan then told the operator that her husband's friend had raped her while she slept.

A Los Angeles County Sheriff's Department deputy responding to the scene observed that Susan was crying and Brandon was heavily intoxicated.

A responding paramedic noticed that Susan was crying and visibly upset. Susan told the paramedic that she woke up in bed and her husband's friend was on top of her trying to rape her. She also told the paramedic that she had successfully fought him off.

An ambulance transported Susan to the hospital, where she was examined by a nurse. Susan had a scratch on her left breast that she had not noticed prior to the rape. Susan also had a minor tear at the lower portion of her vagina, the most common site of injury for female victims of sexual assault. The injury was also consistent with consensual sex. Half of women who are sexually assaulted suffer no injury to their genital area.

Susan provided a urine sample at the hospital, which indicated a blood alcohol content of .16.

A sheriff's deputy interviewed Susan at the hospital. Susan told the deputy that while she was in her bed, she felt someone remove her shorts and underwear. She then engaged in sexual intercourse with a person whom she believed to be her husband. When Susan opened her eyes, she saw that the person was defendant. Susan struggled with defendant and repeatedly punched him while telling him to get off her.

2. Defense Case

Defendant testified that he had been in sexual relations with different couples on about 12 prior occasions. In several instances, defendant would meet the couple at a bar. After having some alcoholic drinks, the couple would invite defendant home. Defendant would then have sex with the wife or girlfriend. The man would sometimes be in bed taking turns with defendant having sex with the woman.

Defendant would discuss his sexual encounters with Brandon, who seemed very interested in the stories.

On May 6, 2018, Brandon invited defendant to Brandon's home. Defendant drank at least eight beers and two whiskey drinks. When defendant said that he should go home, Susan told him to keep drinking and to spend the night.

At some point in the evening, Susan and Brandon danced provocatively with one another while looking at defendant in a seductive manner. Brandon and Susan brushed against defendant's leg during the dance. Defendant interpreted this as an invitation to engage in sex with the couple.

After Brandon passed out, Susan went inside the house. Approximately 45 minutes later, defendant went inside to get another beer. Defendant was intoxicated but aware of what was going on.

Defendant then approached Susan, who was in her bed. Although defendant initially claimed that Susan was "awake," he admitted that she was laying on her bed, with her eyes closed, and not "really moving." He put his hands "on her butt and her hip" and shook her, saying, "'Hey Susan.'" Susan neither responded nor looked up, and defendant left the bedroom. Defendant then returned and approached Susan a second time. Defendant "jostled" Susan and said, "'Hey,'" but again, Susan did not respond. Defendant then left the bedroom and house.

After going outside and seeing that Brandon was still passed out, defendant went to Susan's bedroom a third time. This time, he put his hand on Susan's breast and said, "'Hey, it's Joe. Come on, let's get it on.'" She replied, "'Uh-huh.'" According to defendant, Susan raised her back to make it easier for defendant to remove her shorts. Susan was breathing heavily and excitedly. Defendant then engaged in sexual intercourse with Susan for about six or seven minutes. The intercourse ended "[v]ery quickly" when Susan stopped and pushed against defendant's chest "very gently," which caused defendant to get off the bed. Susan "[i]mmediately" asked defendant "'What are you doing?'" She then told defendant to leave the bedroom.

According to defendant, he went outside and shook Brandon awake. He told Brandon, "'Your wife and I were getting romantic, and now she is telling me to get the fuck out of here.'" Susan was standing in the doorway and said, "'You raped me.'" Defendant responded that Susan knew who he was. Defendant then went to his car and drove away, but returned after driving half a block because he believed he had left his phone behind. Defendant left again after attempting to speak with Brandon about the incident.

Three character witnesses described defendant as honest, gentle and respectful of...