Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05NF2371, Daniel J. Didier, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury found Curicaveri Gomez Aguirre guilty of committing a lewd act on a child under the age of 14. (Pen. Code, § 288, subd. (a).) He challenges the sufficiency of the evidence to support his conviction and complains the jury instruction on reasonable doubt was flawed. Neither contention has merit, and we therefore affirm the judgment.
All further statutory references are to this code unless otherwise specified.
I
Facts and Procedural Background
Jane Doe, age 10 at the time, lived with her father and his girlfriend in an apartment in Buena Park. After school on June 16, 2005, Jane and a friend set out for the local market about five to ten minutes from home. Jane wore rollerblades, a short-sleeved shirt and a jean mini-skort, a skirt with shorts sewn inside. Jane’s friend left the store first. When Jane went outside to look for her, she encountered defendant and two other men. She asked if they had seen a girl on a bike. Defendant claimed he saw her companion go around the corner.
When Jane could not find her friend, she returned to defendant, who invited her to his car. Jane agreed and followed defendant around the corner. He opened the passenger door and sat with one foot in the vehicle and the other hanging out. He grabbed the rubber bracelets on Jane’s wrist and pulled her close to him. He told her he had a similar bracelet and took one from his glove box and offered it to her. When she refused to accept the bracelet, he offered her money. She initially declined, but eventually accepted it. Frightened, Jane told defendant she had to leave. Defendant offered her ice cream to stay, which she declined. He told her she was “very beautiful” and touched her leg just above her knee. His hand touched her skin on the outside of her thigh underneath her skort, about four inches above her knee. He moved his hand diagonally toward the inside of her leg going up about two or three inches. Jane immediately stepped back and then departed. She reported the incident to the police, who arrested defendant the next day. Jane identified defendant from a photo line-up and at trial.
When first approached by investigators, defendant admitted speaking with Jane, but stated he “didn’t do anything . . . or touch her or anything like that.” The jury convicted defendant of committing a lewd act on a child, but acquitted him of false imprisonment by violence. The court sentenced him to a three-year prison term.
II
Discussion
A. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support his conviction for committing a lewd act in violation of section 288, subdivision (a), arguing no evidence demonstrated he harbored a sexual intent when he touch Jane. We disagree.
Where sufficiency of the evidence is challenged, we “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 . . . .” (People v. Johnson (1980) 26 Cal.3d 557, 578.) The reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the jury could deduce from the evidence to support the judgment. (People v. Crittenden (1994) 9 Cal.4th 83, 139 .) It is the jury’s exclusive function to assess the credibility of the witnesses and draw reasonable inferences from the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) Reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.)
Section 288, subdivision (a), requires a specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desire of the perpetrator or the victim. (People v. Martinez (1995) 11 Cal.4th 434, 444, 452.) A “touching” of the victim with the intent of sexual gratification must occur to violate the statute, and the lewd act may involve any part of the victim’s body. (Id. at p. 444.) In determining whether a defendant committed the act with the necessary specific intent, the jury may consider the circumstances of the act, extrajudicial statements, the relationship of the parties, and any coercion or deceit used to obtain the victim’s cooperation or to avoid detection. (Id. at p. 445.) The section may be violated by simple acts that are neither obviously sexual nor obscene; the touching of a sexual organ is not required. (People v. Raley (1992) 2 Cal.4th 870, 907; People v. Diaz (1996) 41 Cal.App.4th 1424, 1427.)
Jane’s testimony provided ample evidence of defendant’s sexual intent. She testified defendant grabbed her, pulled her close, and enticed her with a bracelet. He offered her ice cream and gave her money. He told her she was “very beautiful” and touched her leg approximately four inches above her knee, moving his hand two to three inches diagonally towards the inside of her thigh.
Defendant analogizes to In re Jerry M.(1997) 59 Cal.App.4th 289. There, an 11-year-old boy momentarily touched the breasts of three girls in public, with no attempt to avoid detection. (Id. at p. 300.) The appellate court determined the evidence was insufficient to prove the juvenile had the requisite intent, emphasizing the boy’s age and the fact he had not yet reached puberty. (Id. at p. 300.) The court explained the evidence showed “a brazen 11-year-old whose conduct was more consistent with an intent to annoy and obtain attention than with sexual arousal.” (Ibid.) In contrast, defendant, a 35-year-old man, invited a 10-year-old girl to his car and touched her on an intimate area of her leg after telling the child she was “very beautiful.” He offered her a bracelet, money, and ice cream to stay with him, and when approached by a police officer the following day, blurted out he “didn’t do anything . . . or touch her or anything like that.” The foregoing constitutes substantial evidence supporting the conviction.
B. Reasonable Doubt Instruction
Defendant contends the trial court’s reasonable doubt instruction, based on CALCRIM No. 220, violated his due process rights because it impermissibly instructed the jury it could not consider the absence of evidence in determining whether the prosecution had met its burden of proving the elements of the crime beyond a reasonable doubt. Defendant contends the phrase “you must impartially compare and consider all the evidence that was received throughout the entire trial,” prohibits the jury from considering whether a lack of evidence can raise a reasonable doubt. We are not persuaded. The instruction, read as a whole, informed the jury that the People had the burden of proving defendant’s guilt beyond a reasonable doubt, and the jury therefore must determine whether the People had met their burden of proving all the facts essential to a finding of guilt. Thus, a lack of evidence on any essential element required a not guilty verdict.
CALCRIM No. 220 provides: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Every case that has addressed the identical argument has concluded CALCRIM No. 220 does not violate due process. (People v. Campos (2007) 156 Cal.App.4th 1228, 1236; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500 (Westbrooks).) These cases also conclude CALCRIM No. 220 does not violate due process when it instructs the jury it must consider only the evidence presented at trial in determining whether the prosecution has met its burden of proof. The instruction merely admonishes the jury to base its verdict on only the evidence produced at trial. Of course, if the jury concludes that evidence is lacking then the jury must return a not guilty verdict. We agree with these cases and conclude the instruction does not prohibit the jury from considering the lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt.
These courts also have rejected analogies to People v. McCullough (1979) 100 Cal.App.3d 169. In McCullough, the appellate court concluded the trial court misled the jury by telling it reasonable doubt must arise from the evidence presented at trial, because reasonable doubt may arise from the lack of evidence. “Unlike in McCullough, the trial court in this case did not tell the jury that reasonable doubt must arise from the evidence presented at trial, and, given the court’s other instructions, it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating that the jury was precluded from considering any perceived lack of evidence in determining [defendant’s] guilt.” (Westbrooks, supra, 151 Cal.App.4th at p. 1510.)
We agree with the analysis and conclusions of the foregoing cases. There was no constitutional violation.
III
Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.