Opinion
E051097
09-30-2011
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL ALBARRAN, Defendant and Appellant.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF146934)
OPINION
APPEAL from the Superior Court of Riverside County. J. Richard Couzens, Judge. (Retired judge of the Placer Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Miguel Angel Albarran (defendant) challenges, as unsupported by the evidence, his conviction for sexual penetration of a child under the age of 10. (§ 288.7, subd. (b).)We will affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
In 2008, defendant lived with the victim's family—mother, father, and three daughters—in a house in Riverside County. The parents had one bedroom, the three girls shared a bedroom, and defendant had a separate bedroom. Around midnight, mother heard a noise coming from the bedroom where her daughters were sleeping; it sounded like a creaking bed and a blow against the wall. When she went to investigate, she turned on the light in the girls' room and saw defendant, clad in undershorts and shirt, straddling the six-year-old victim on the bed. The victim was lying on her back, facing up and the skirt and panties she had been wearing when she was put to bed were lying on the floor. When the light came on, defendant quickly got off the bed, and mother could see that his penis was out of his shorts. Mother called 911; the police arrived about 15-20 minutes later.
Defendant waived his Miranda rights and spoke, in Spanish, to the responding police officer. Defendant admitted that he had touched the victim's vagina, but denied that he had penetrated her. Pointing to his penis, defendant told the police that he rubbed the victim and then rubbed himself. The next day, November 17, 2008, the victim was examined by a forensic pediatrician.
Miranda v. Arizona (1966) 384 U.S. 436.
The conversation was recorded and transcribed. The recording was played for the jury at defendant's trial and jurors were given copies of the transcript.
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Defendant was charged by an amended information filed December 8, 2009, with oral copulation or sexual penetration of a child 10 years old or younger (§ 288.7, subd. (b), count 1) and lewd and lascivious conduct with a minor under the age of 14 years (§ 288, subd. (a), count 2). Defendant's trial took place on February 23, 24, and 25, 2010.
Witnesses for the prosecution included mother, the police officer, and the forensic pediatrician. There was no expert witness for the defense. The forensic pediatrician testified that her examination had revealed a bruise on the inner surface of the victim's left thigh, a small bruise on her right "labia majora," and three small bruises, called "submucosal hemorrhage[s]," near the opening of her urethra. The doctor explained that the labia majora are the "outside lips" of the female external genitalia and touch each other. It is necessary to open and separate them to see what lies inside. When they are separated, it is possible to see other structures, including the urethra, the opening for urine. The area is very protected by the labia majora. It is not possible to see the tissue around the urethra, the location of three of the victim's bruises, without separating the labia majora. In the doctor's opinion, the injuries to the area around the victim's urethra were consistent with molestation and with something like a finger "rubbing that area pretty hard, or some kind of blunt force trauma going in there."
On February 25, 2010, a jury convicted defendant of both charges. On April 23, 2010, the trial court sentenced him to an indeterminate prison term of 15 years to life on count 1 and stayed a three-year sentence on count 2. (§ 654.)
DISCUSSION
Defendant contends that there was insufficient evidence of penetration to support his conviction on count 1. We disagree.
Standard of Review
"In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Crittenden (1994) 9 Cal.4th 83, 139.)
Section 288.7Subdivision (b) of section 288.7 provides that, "Any person 18 years of age or older who engages in . . . sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." Section 289 defines "'[s]exual penetration'" as "penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1).) The labia majora are part of the female genitalia and "'sexual penetration'" within the meaning of section 289 refers to contact with structures inside the opening of the labia majora. (People v. Quintana (2001) 89 Cal.App.4th 1362, 1367, 1371.)
In considering defendant's contention, we have reviewed the entire record and determined that, from the evidence before it, the jury could reasonably have deduced that defendant sexually penetrated the victim. The forensic pediatrician was the only expert witness. The doctor testified that the urethral opening lies within the area covered by the labia majora and that it is necessary to open and separate the labia majora in order to see the urethral opening. Further, the doctor testified that the victim had bruising in the area around the urethral opening and that her injuries were consistent with molestation, either by "rubbing that area pretty hard, or some kind of blunt force trauma going in there." The jury was entitled to conclude that the latter was the likely mechanism.
Defendant postulates that that the victim's injuries could have occurred as a result of "rubbing the overlapping labia majora very hard with a finger," rather than by direct contact. Maybe so. But that is not what the jury found, and their finding was supported by substantial evidence. If the area cannot be seen unless the labia majora are separated, it is not unreasonable to infer that it also cannot be touched and injured unless the labia majora are separated and that defendant's finger (or some other object wielded by him) did exactly that, penetrating the victim.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.