Opinion
B189835
4-24-2007
THE PEOPLE, Plaintiff and Respondent, v. RENE L. AREVALO, Defendant and Appellant.
Ralph M. Rios for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Rene L. Arevalo appeals from judgment entered following a jury trial in which he was convicted of assault with intent to commit rape. (Pen. Code, § 220.) Sentenced to the middle term of four years, he challenges the sufficiency of evidence to support his conviction and contends the prosecutor committed prejudicial misconduct. For reasons stated in the opinion, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On March 23, 2005, at approximately 5:30 a.m., in the area of North Bel Aire Drive and Uclan Drive in Burbank, Ms. B. was jogging when appellant came from behind her and put his hands over her mouth. She struggled and turned, trying to pull his hands off and to scream, but her screams were muffled. She believed appellant was going to kill her and was afraid for her life. After a couple of seconds, appellant pushed Ms. B. down to the ground, falling on top of her and causing her to hit the back of her head very hard on the ground. Appellant kept one hand on her mouth and his other hand was "all over [her] body," "going up and down [her] body." He touched her breast, waist or stomach area, her groin area and down her thighs. He struggled "to get his hand sweeping across [her] body." The sweeping motion lasted approximately 20 to 30 seconds; during that time, he touched her breast approximately seven or eight times and her genital area approximately six times. When appellant got to an "area," she would "push the hand away." "It was a constant struggle to get him off of [her.]" Appellant "was smack on top of [her], full length." "[Her] legs were down . . . , his legs were spread over [her] legs; and he was chest to chest with [her]." His legs were "spread open about [her] thigh area." He said, "Sh, sh, just be quiet. Just be quiet." She was fighting for her life. At some point, appellant got off of her and ran away. Ms. B. summoned the police on her cell phone, and appellant was arrested shortly thereafter in the area.
Ms. B. had a lump on the back of her head the approximate size of a tennis ball and bruising on her ribs. Two days later, she noticed four "fingertip bruises" on her inner thigh. Appellant never asked her for her Ipod, cell phone, or money, and there was no conversation.
After his arrest, appellants car was found approximately two blocks from the location of the attack. Inside the vehicle, two pairs of womens underwear, a pair of black fishnet stockings, and documents relating to a Daily News paper route were found. At the time of the attack, appellant had a newspaper route near the neighborhood. He would begin working at approximately 1:00 a.m. to 1:30 a.m. He would start his route at about 2:00 a.m., and it would take a maximum of two and one-half hours for him to complete the route.
A neighbor saw appellant being arrested and recognized him from the previous Friday night. Appellant had followed her and three female friends as they arrived home from a movie at approximately 10:00 p.m. He followed them closely in his car and then parked. Appellant sat in his parked car for several minutes.
DISCUSSION
I
Appellant contends it was reversible error for the prosecutor, during closing argument, to ask the jury to put themselves in the victims position during the assault. Appellant quotes the prosecutions argument wherein she states, "Can you just imagine what it must have been like for her that morning to just put on her Ipod and get her cell phone and get dressed for her morning jog; and go out and be running down the street listening to music; minding her own business; to be met by this man from behind and all of a sudden you have two hands placed over your mouth?"
Appellant also cites a portion of the prosecutions argument where she states, "Now, Miss [B.] testified that this attack lasted 20 to 30 seconds. 20 to 30 seconds doesnt seem very long in a day with 24 hours. But when you are fighting not only to breathe, but what you perceive as to be your life; and youre in the struggle of your life, you watch that clock and you tell me how long 20 to 30 seconds takes. And what images must flash through your mind wondering if you are going to be able to survive the struggle and make it back home. 20 to 30 seconds can last a lifetime."
As the Attorney General points out, appellant did not object to the prosecutors comments. As a result, he has forfeited any claim on appeal. (People v. Medina (1995) 11 Cal.4th 694, 757.) In any event, appellants contention lacks merit.
"It has long been settled that appeals to the sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial. [Citations.] We recognize that the prosecutor `may vigorously argue his case and is not limited to "Chesterfieldian politeness" [citations] . . . ." (People v. Fields (1983) 35 Cal.3d 329, 362-363, fn. omitted.) To the extent, however, the prosecution asked the jury to depart from its duty to view the evidence objectively and instead to view the case from the victims perspective, the argument was improper. (Id. at pp. 362-363.)
However, even if we assume the prosecutors argument was improper, any error was harmless. As the Attorney General observes, the comments were milder than other pleas for sympathy that have been found harmless. (See, e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1250; People v. Fields, supra, 35 Cal.3d 329, 362.) It is not reasonably probable that a different result would have been reached absent those remarks. (See People v. Simington (1993) 19 Cal.App.4th 1374, 1378-1379.)
II
Appellant contends the evidence is insufficient to support a conviction of assault with the intent to rape. He argues the assault lasted only 20 to 30 seconds, no specific words were spoken, there was no skin-to-skin contact or attempts to reach under the victims clothing and there was no indication appellant wanted to continue past any alleged groping.
The crime of which appellant was convicted requires proof he intended to have sexual intercourse with Ms. B. and to use force to overcome her resistance. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597.) "`The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [Citation.] While `. . . we must ensure the evidence is reasonable, credible, and of solid value, we are not permitted to reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. [Citations.] [¶] `The specific intent with which an act is done may be shown by a defendants statement of his intent and by the circumstances surrounding the commission of the act. [Citation.] `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. [Citation.]" (Ibid.)
"`[I]t is not the function of this court to determine whether a different finding would be just as reasonable as the one the trial court made; rather, this court simply determines whether there is substantial evidence, including inferences reasonably deduced from the facts in evidence, to support the finding actually made. [Citations.]" (People v. Greene (1973) 34 Cal.App.3d 622, 649.) "The question whether the intent existed is one for the jury to determine from the conduct of the defendant and the surrounding circumstances. A determination by the court is permissible only when the facts afford no reasonable ground for an inference that the intent existed. [Citations.]" (People v. Meichtry (1951) 37 Cal.2d 385, 389.)
Substantial evidence supports the finding that appellant assaulted his victim with intent to rape. Appellant did not try to steal anything from Ms. B. Appellant had been seen in the neighborhood a few days earlier stalking a group of women and womens underwear was found in his car. Not only did appellant repeatedly touch Ms. B.s breasts and groin area, but he also pushed her to the ground and placed himself "full length" on top of her. His legs were spread open over her thigh area and he was chest-to-chest with her. Had appellant only intended to grope Ms. B., he could have left her standing and not gotten on top of her. People v. Greene, supra, 34 Cal.App.3d 622, cited by appellant, is distinguishable. In Greene, the defendant put his arm around his victims waist and walked with her. He said he just wanted "`to play" (id. at p. 629) with the victim and moved his hand up and down her waist. Unlike the defendant in Greene, we have no statement by appellant which purports to so limit his intent. In the present case, substantial evidence supports the inference that appellant intended to rape Ms. B. and the jurys finding will not be disturbed on appeal.
DISPOSITION
The judgment is affirmed.
We concur:
EPSTEIN, P.J.
MANELLA, J. --------------- Notes: Appellants sister testified the underwear was just like underwear belonging to her and appellants girlfriend. Appellants girlfriend testified the underwear belonged to her.