Opinion
D051211.
8-8-2008
In re CRISTIAN S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CRISTIAN S., Defendant and Appellant.
Not to be Published
Following a contested adjudication hearing, the juvenile court found Cristian S. is a person described by Welfare and Institutions Code section 602 after finding true the allegations that he committed assault with intent to commit rape (Pen. Code, § 220) (count 1) and sexual battery (§ 243.4, subd. (a)) (count 2), in connection with his assault on the victim (Amelia H.). The court also determined that Cristians maximum term of confinement was seven years, consisting of six years as to count 1 and one year as to count 2. At the May 2007 disposition hearing, the court ordered Cristian removed from the physical custody of his parents under subdivision (a)(2) of Welfare and Institutions Code section 726 and continued his detention in juvenile hall pending placement in a suitable licensed residential treatment facility.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Cristian challenges the order sustaining the wardship petition and setting the term of confinement (the order), contending (1) the evidence was insufficient to support a true finding on the assault with intent to commit rape allegation, (2) the court erred and violated his right to due process in allowing him to be impeached with prior juvenile adjudications, and (3) the court erred by not setting the maximum term of confinement at the conclusion of the disposition hearing and by not staying under section 654 the punishment on count 2. In his supplemental opening brief, Cristian also contends (4) the issue of whether he could be impeached with prior juvenile adjudications was preserved for appeal, and if he did not preserve this issue for appeal, he is still entitled to relief because he then was denied effective assistance of counsel. We conclude the order must be modified to stay execution of the one-year term imposed for the true finding on the sexual battery allegation in count 2 and to reduce the maximum term of confinement from seven years to six years. We affirm the order as modified.
FACTS
A. Prosecution Case
On January 14, 2007, around 6:00 p.m., 15-year-old Amelia was walking home from a friends house. It was dark and the streets were poorly lit. While walking home, she passed Cristian, age 14, who was standing near a liquor store. She had never seen Cristian before that evening.
Cristian walked toward her and asked if she "wanted to click with him." She told him that she had to go home, but he asked her to go with him instead of going home. Amelia kept walking. When Cristian continued to follow her, she began walking more rapidly and then started running. Cristian caught up with her at an intersection.
Amelias mother called Amelias cellular telephone, and Cristian gestured to her not to answer it. She nevertheless answered the telephone, and Cristian pulled up his shirt slightly to expose the waistband. Amelia saw a silver, shiny object she thought was possibly a weapon. Amelia was scared and looked around for help. She saw a light on in a nearby apartment and started walking toward it. Cristian continued following behind her. While they walked, Amelia asked Cristian his name and age, and Cristian replied that they called him "El Travieso" (The Troublemaker) and that he was from Chula Vista.
As Amelia neared the apartment, Cristian squatted by a car parked in front of it. He asked Amelia what was wrong, and she replied she was cold. He asked her to sit on his lap, but she refused. He asked again, and she refused again, so Cristian grabbed her around the legs and pulled her down onto his lap. He grabbed her, pinning her arms around her sides in a tight hug and groped her buttocks with his hands. She tried to lean back, away from Cristian, but he held her too tightly. Cristian started to kiss her, trying to force his tongue into her mouth, but she kept her mouth closed and tried to pull her head back. He then rubbed her side and stomach area under her shirt. Amelia tried to pull her shirt down, but Cristian was able to grope her breasts under her shirt over her bra. He used one hand to again try to lift her shirt while his other hand touched her vaginal area over her pants.
Amelia pushed Cristians hands away. Cristian looked angry because she was not doing what he wanted her to do. Amelia was scared when he was touching her. She was able to get away from Cristian by pushing herself away from him and getting up very quickly when she asked if she could use the bathroom. He said yes, but he told her that he was going to be waiting outside for her. Amelia went to the door of a second-floor apartment with a light on and knocked on the door trying to get help. A woman answered and Amelia asked to use her bathroom. The woman refused and said the bathroom was broken. Cristian had run after Amelia and followed her. When the woman looked at Cristian, he looked down and then bent down. When Cristian looked down, Amelia gestured to the woman that she needed help, and the woman allowed her inside. Amelia began crying and told the woman what had happened. Amelias mother called her cellular telephone again, and she told her mother what had happened. Her mother told her to call police and wait there until they arrived. Amelia called police and stayed until they arrived.
Officer Felix Aguirre interviewed Amelia the following day. He testified her testimony at trial was consistent with the statements she gave him during their interview. He also contacted the woman at the apartment and confirmed she had been involved in the incident.
B. Defense Case
Cristian testified Amelia was his girlfriend six months earlier, but Amelia did not want her father to learn she was associating with Cristian and his group. However, Cristian admitted he did not know Amelias last name or where she lived.
Cristian testified that on the date of the incident Amelia encountered him near a store while he was accompanied by two girls. Amelia became angry at Cristian and yelled at him for being with the two girls. Amelia then called her father and claimed Cristian had a gun. He denied following Amelia or that any of the subsequent events to which Amelia testified occurred. He admitted he was "convicted" of possessing a weapon on school grounds in 2005 and of robbery and grand theft from a person in 2006.
DISCUSSION
I. THE SUBSTANTIAL EVIDENCE ISSUE
Cristian contends the evidence was insufficient to support the courts true finding on the charge that he assaulted Amelia with intent to commit rape in violation of section 220. We reject this contention.
A. Legal Principles
A true finding on a charge of assault with intent to commit rape under section 220 requires proof beyond a reasonable doubt that the defendant at the time of the assault intended to have sexual intercourse with the victim and intended to use force to overcome her resistance to the intercourse. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597.) The requisite intent may be shown by the defendants statements, by his conduct, and by the circumstances surrounding the commission of his conduct. (Ibid.) "In objectively assessing a defendants state of mind during an encounter with a victim, the trier of fact may draw inferences from his conduct, including any words the defendant has spoken." (People v. Bradley (1993) 15 Cal.App.4th 1144, 1154 (Bradley), overruled on other grounds in People v. Rayford (1994) 9 Cal.4th 1, 21.)
When assessing a challenge to the sufficiency of the evidence, we must view the evidence most favorably to the prosecution and determine whether any rational trier of fact could have found the elements proven beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) When proof of the requisite elements relies on inferences, which are "logical and reasonable deduction[s] or conclusion[s] to be drawn from the proof of preliminary facts[ citations,] [i]t is the province of the trier of fact to decide whether an inference should be drawn and the weight to be accorded the inference. [Citation.] The strength of an inference may vary widely. In some circumstances, the preliminary facts may virtually compel the conclusion. In other circumstances, the preliminary facts may minimally support the conclusion. But to constitute an inference, the conclusion must to some degree reasonably and logically follow from the preliminary facts. If, upon proof of the preliminary facts, the conclusion is mere guesswork, then we refer to it by such words as speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the dignity of an inference. [Citations.] [¶] This points to the appropriate standard of appellate review where inferences are concerned. A reviewing court will determine whether a conclusion reasonably and logically follows from proof of the preliminary facts. If so, the conclusion is a permissible inference within the exclusive province of the trier of fact. An appellate court will not interfere with the decision of the trier of fact, even if the court believes that a contrary conclusion would have been reasonable. [Citation.] If, on the other hand, the trier of facts conclusion is mere guesswork, the appellate court will consider it to be speculation and conjecture that is insufficient to support the judgment. [Citations.]" (People v. Massie (2006) 142 Cal.App.4th 365, 373-374.)
As this court stated somewhat differently in In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394, " When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] . . . (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) However, substantial evidence is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, `[w]hile substantial evidence may consist of inferences, such inferences must be "a product of logic and reason" and "must rest on the evidence" [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations]. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633, italics added.) `The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. [Citation.]"
B. Analysis
We conclude the evidence is sufficient for a rational trier of fact to have inferred beyond a reasonable doubt that, at the time of the assault, Cristian intended to have sexual intercourse with Amelia and to use force to overcome her resistence. In Bradley, supra, 15 Cal.App.4th 1144, this court concluded that substantial evidence supported the jurys findings that the defendant intended to complete a sexual act with his 16-year-old victim, he used the force required to overcome her will, and thus he had the specific intent to commit rape required for his conviction of assault with the intent to commit rape (§ 220). (Bradley, supra, 15 Cal.App.4th at p. 1155.) In that case, substantial evidence showed the defendant tightly grabbed the victims arm, forced her to hang up a pay phone, forcibly led her to a dimly lit enclosed area, tried to kiss her on the mouth as she kept turning away, moved his free hand under her shirt to fondle her breasts while touching skin not covered by her bra, moved that hand under her shorts to within an inch of her vaginal area, and only let her go when car lights suddenly shined into the enclosed area and the victim kicked him in the shins. (Id. at pp. 1149-1150, 1155.) It is of no moment that the evidence in Bradley also showed the defendant uttered the words "Dont worry, I will" when his accomplice said he would not mind getting a "piece of that." (Id. at p. 1150.) Nothing in Bradley indicates the Court of Appeal would have rendered a different decision in the absence of evidence showing the defendant made such a statement. To the contrary, the Court of Appeal determined that the objective evidence supporting the jurys findings was "ample." (Id. at p. 1155.)
Similarly here, strong substantial evidence established that Cristian pursued Amelia as she tried to get away from him and reach her home. When he caught up with her, he pulled up his shirt to menace her with a silver metallic object in his waistband that she believed was a weapon and then grabbed her and pulled her down on top of him in a dimly lit area, pinning her arms and groping her buttocks. He aggressively tried to kiss her and stick his tongue in her mouth and then put his hand under her shirt, touching the bare skin of her belly and side, and then her breasts over her bra. As Amelia continued to struggle to get away, Cristian touched her vaginal area over her pants. He became angry when she pushed his hand away from her vaginal area. Amelia, who was scared as she vigorously resisted the assault, was finally able to break free of Cristians grip, push him away, and stand up as she told him she needed to go to the bathroom. When she walked toward a second-floor apartment to seek help, Cristian said he would be waiting for her when she got back, but then ran after her and followed her to the apartment, where she was eventually able to obtain assistance from the resident, call the police, and wait in safety until the police arrived.
The foregoing evidence establishes that Cristian used the amount of force that was required to overcome his victims will as he was sexually assaulting her, and the illegal touchings escalated from physical restraint, to groping of her buttocks, to aggressive kissing, to caressing of her belly and side under her shirt, to fondling of her breasts over her bra, and ultimately to touching of her vaginal area over her pants. Cristian pursued Amelia after she broke free and sought help at a nearby apartment. From this evidence, a reasonable trier of fact could find beyond a reasonable doubt that Cristian intended to have sexual intercourse with Amelia and intended to use force to overcome her resistance and consummate his objective.
Cristians reliance on People v. Greene (1973) 34 Cal.App.3d 622 is unavailing. In Greene, the Court of Appeal modified the defendants conviction of assault with intent to commit rape to simple assault. (Id. at pp. 627, 654.) The evidence showed the defendant approached his victim, put his arm around her waist, directed her to put her arm around his waist, moved his hand up and down her waistline, and told her he had a gun, saying, "I just want to play with you." (Id. at p. 650.) Greene is factually distinguishable in that it did not involve a series of aggressive sexual touchings indicative of an intent to commit rape and perpetrated by means of continuing physical force sufficient to overcome the victims continuing resistance. We thus reject Cristians claim that this case involved "simple touchings" that can only be objectively attributed to attempted seduction or an attempt to secure the satisfaction of some abnormal sexual interest short of actual sexual intercourse.
II. THE PRIOR JUVENILE ADJUDICATIONS ISSUE
Cristian asserts the court erred and violated his right to due process in allowing him to be impeached with prior juvenile adjudications. Even assuming Cristian is correct that prior true findings may not be used to impeach his credibility, and assuming this issue was adequately preserved, we are convinced any error was harmless.
The trial court found Amelias version credible, and Cristians version lacking credibility, based on numerous considerations. Although the court did advert to Cristians prior record as one of its considerations, we are convinced it is not reasonably probable Cristian would have obtained a more favorable result even had the court not considered his prior record. First, the court expressly noted the implausibility of Cristians claim that Amelia was an old girlfriend because Cristian knew neither her last name nor her address. Second, Cristians version required the court to accept that Amelia saw him with two other girls (neither of whom were called by Cristian to verify his account) and, acting in a jealous rage, approached a strangers apartment at night with a concocted story of an assault and waited until police arrived to continue her charade, and that she then continued to maintain that story at trial — despite knowing the severe consequences her lies would visit on someone of whom she allegedly had been fond — merely to avoid the disapproval of her father. We conclude it is not reasonably probable Cristian would have obtained a more favorable result had the court not alluded to his prior record, and therefore any alleged error was harmless. (People v. Watson (1954) 46 Cal.2d 818, 836.)
In light of the foregoing conclusion that Cristian has failed to meet his burden of demonstrating prejudice, we need not address his related supplemental contention that, if he did not preserve this issue for appeal, he is still entitled to relief on the ground he was denied effective assistance of counsel.
III. THE MAXIMUM TERM AND SECTION 654
Cristian also argues that the court erred by not setting the maximum term of confinement at the disposition hearing and by not staying under section 654 the punishment on count 2. For reasons we shall discuss, we conclude the courts confinement order must be modified to stay execution of the one-year term imposed for the true finding on the sexual battery (§ 243.4, subd. (a)) allegation in count 2 and to reduce the maximum term of confinement from seven years to six years.
A. Applicable Legal Principles
Where, as here, a court orders a minor removed from the physical custody of his parents pursuant to a wardship order, Welfare and Institutions Code section 726, subdivision (c) requires the court to specify the maximum term of "physical confinement." (In re Danny H. (2002) 104 Cal.App.4th 92, 106.) That subdivision provides in part: "If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to [Welfare and Institutions Code] Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court."
"`[P]hysical confinement means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to [Welfare and Institutions Code] Section 730, or in any institution operated by the Youth Authority." (Welf. & Inst. Code, § 726, subd. (c).)
McDonald, J., concurring and dissenting.
I would reverse the true finding that Cristian committed assault with intent to commit rape (Pen. Code, § 220). Otherwise, I concur in the majority opinion.
I conclude the evidence is insufficient for a rational trier of fact to have inferred, beyond a reasonable doubt, that Cristian at the time of the assault intended to have sexual intercourse with Amelia or intended to use force to accomplish the intercourse against her will. There were no words by Cristian stating (either expressly or by implication) that he wished to have intercourse with her or that he intended to have intercourse with her regardless of her consent. Neither Cristians conduct nor the circumstances surrounding his conduct logically support the inference that forcible rape was his intent: he was sitting on a street in a residential area at a relatively early hour, apparently in plain view of the surrounding residences, and made no effort to move to a more secluded locale to accomplish the intercourse; he took no steps to remove either his own or Amelias pants; and, when Amelia rebuffed his groping and pushed him away from herself, he made no effort to prevent her from leaving, but instead allowed her to leave knowing she was going to contact a third person while he waited outside for her voluntary return.
In People v. Greene (1973) 34 Cal.App.3d 622, the court reversed a conviction of assault with intent to commit rape because there was insufficient evidence of specific intent. In Greene, the victim (Linda) was a 16-year-old girl walking towards her home from a baby-sitting job around 11:00 p.m. (Id. at p. 629.) The Greene court summarized the victims testimony as follows:
"The defendant, who approached from the direction in which Linda was walking, put his arm around her waist and turned her around. She thought his conduct was unusual, and she was startled and afraid. Defendant spoke in a soft voice and said, `Dont be afraid. I have a gun. Dont move. The defendant was on her right with his left arm around her waist, and she felt something hard against her right side. She did not look down to see whether it was a gun and did not know whether it was his finger, or a piece of metal or wood. The defendant told her to be quiet. At his request she placed her right arm around his waist and they started walking in the opposite direction from which she had been headed. Linda asked the defendant, `What do you want? or `Oh God, what do you want? and he replied, `I just want to play with you. She also remonstrated, `Dont hurt me. As they walked slowly the defendant had a hold of Linda and moved his left hand up and down her waistline, a little bit, in a manner which she demonstrated to the jury. An objection was sustained to Lindas volunteered statement, `He just put his hand where hes not supposed to, and a question and answer indicating he did `other things. When defendant indicated that he was going to play with her, Linda attempted to get away and shook her head and said `No, no. The defendant told her to stop it and be quiet. Linda remained quiet and then broke from defendants embrace without a struggle, screamed and ran to a friends home. According to Linda she only walked with the defendant past a couple of houses, and the whole incident took no more than six or seven minutes." (Id. at p. 650.)
The Greene court concluded Lindas testimony, "when considered alone[,] falls short of furnishing substantial evidence that the defendant assaulted her with intent to commit rape." (People v. Greene, supra, 34 Cal.App.3d at p. 651.) The court also considered evidence of other similar incidents involving the defendant against similar victims, but concluded the defendants acts on other occasions did not "impart greater meaning to similar acts" against Linda. (Id. at p. 652.)
In one incident, which occurred about four weeks prior to the one involving Linda, the defendant approached a fifteen-year-old girl walking home from a school dance. He told the girl he wanted to talk with her, but she tried to avoid him. The defendant continued to follow the girl, eventually grabbing her, pinning her arm with one of his arms, and shoving his other hand into her vaginal area. The girl freed her hand, hit the defendant with a pen, and broke away screaming until she entered her house. (People v. Greene, supra, 34 Cal.App.3d at pp. 628-629.) Another victim (Miss K.), 15 or 16 years old at the time of the incidents, testified that she was accosted by the defendant on four occasions about 18 months before the assault on Linda. In each of the incidents involving Miss K., the defendant exposed himself, in three of those incidents he expressed a desire to have sexual intercourse, and in two of the incidents he offered her money for sex. (Id. at pp. 631-632.) The reviewing court concluded that although that evidence may have shown some sexual motivation, it was "of little if any persuasive value on the issue of the intent to commit sexual intercourse, as distinguished from lascivious acts" in the incident involving Linda, during which the defendant neither said he desired intercourse, exposed himself, nor offered Linda money. Moreover, the Greene court noted the evidence from Miss K. was "of no persuasive value on the issue of intent to use force." (Id. at pp. 652-653.)
Here, Cristians conduct and words involved even less basis for inferring he intended to have intercourse with Amelia or would do so against her will. Greene and Cristian made similar approaches in similar areas after dark, but Greene approached at a very late hour when presumably few people would be driving while Cristian approached at an hour when numerous persons could be expected to be on the streets. Both Greene and Cristian used their arms to restrain the victims movements, but Greene expressly informed the victim he had a gun to intimidate her into compliance (while Cristian may or may not have been armed), and forcibly redirected the victim into a direction of his choosing while Cristian trailed Amelia in the direction she was walking. Although both Greene and Cristian engaged in forcible groping of an unwilling victim, this circumstance "cannot make an assault with intent to commit rape out of a simple touching which objectively can only be attributed to attempted seduction, or an attempt to secure the satisfaction of some unnatural or abnormal sexual interest, short of actual sexual intercourse." (People v. Greene, supra, 34 Cal.App.3d at p. 651.)
Citing People v. Craig (1994) 25 Cal.App.4th 1593, the People argue there was sufficient evidence from which a trier of fact could have inferred beyond a reasonable doubt that Cristian intended to forcibly rape Amelia, and therefore assert we may not reverse the true finding. However, Craig distinguished Greene because (1) in Greene there were no words suggesting intercourse as a goal while in Craig the defendant had (during a prior similar assault) verbalized a euphemism suggesting intercourse was his goal; and (2) in Greene the defendant ceased when the victim pulled away and did not pursue her while the Craig defendant ceased only because an intervening force (a bystander interrupted his attack and pulled him off the victim) preempted the attack. (Craig, at pp. 1599-1600.) Neither of the facts relied on by the Craig court to distinguish Greene are present here.
I am convinced the inference drawn by the trial court on these facts—Cristians forcible groping of Amelia on a public street showed he harbored an intent to have intercourse with Amelia and to do so against her will—is speculative and conjectural. I would reverse the true finding on the section 220 charge.
Section 654 bars double punishment for multiple offenses that constitute one indivisible transaction or course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 788-789.) Subdivision (a) of that section provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Whether a course of conduct or transaction that violates more than one statute and results in multiple convictions is divisible for purposes of section 654 depends upon the intent and objective of the actor. (People v. Beamon (1973) 8 Cal.3d 625, 637.) Where all the offenses were incident to one objective, the acts are indivisible, and the defendant may only be punished for one of the offenses. (Ibid.) Section 654 applies to juvenile court proceedings. (In re Danny H., supra, 104 Cal.App.4th at p. 106.)
B. Analysis
The court issued the challenged order at the conclusion of the adjudication hearing. The courts minute order stated that "the maximum term for Count 1 is 6 years; and Count 2 is 1 year. [¶] [CRISTIAN] IS ADVISED THAT THE OVERALL MAXIMUM TERM IS 7 YEARS AS TO THIS PETITION ONLY."
Citing Bradley, supra, 15 Cal.App.4th at page 1158, Cristian asserts this was error because his acts of "touch[ing] Amelias bra, stomach, and vaginal area in an apparent attempt to rape her" supported the courts true findings with respect to both count 1 (assault with intent to commit rape) and count 2 (sexual battery), and thus section 654 prohibits punishment for the sexual battery.
The People agree that the order should be modified to stay the commitment imposed for the sexual battery (count 2) because that offense and the assault with intent to commit rape (count 1) were part of a single course of conduct with a single intent.
We conclude the record establishes Cristian committed both offenses with the same objective of raping Amelia, and thus he committed those offenses in a course of conduct that was indivisible for purposes of section 654. Accordingly, the order is modified both to stay under subdivision (a) of section 654 the punishment imposed for the sexual battery and to reduce the maximum term of confinement from seven years to six years. We affirm the order as modified.
DISPOSITION
The order is modified to stay execution of the one-year term of confinement imposed for the sexual battery (count 2: § 243.4, subd. (a)) and to reduce the maximum term of confinement from seven to six years. As modified, the order is affirmed.
I CONCUR:
OROURKE, J.