Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050711507
Richman, J.
A jury convicted defendant Deandre Austin of committing 13 sexual offenses on his three minor nieces with whom he periodically shared quarters during the period from 2002 to 2006. The charges were as follows: four counts of sexual penetration committed against a person under the age of 14 (Pen. Code, § 289, subd. (j) ); aggravated sexual assault committed upon a child under the age of 14 (§ 269, subd. (a)(5)); rape accomplished by force (§ 261, subd. (a)(2)); three counts of committing continuing sexual conduct with a child under the age of 14 (§ 288.5); two counts committing a lewd or lascivious act upon a child under the age of 14 (§ 288, subd. (a)); attempted oral copulation accomplished by force (§§ 288a, subd. (c)(2), 664); and attempted forcible sodomy accomplished by force (§§ 286, subd. (c)(2), 664). After finding true various enhancement allegations, the trial court sentenced defendant to state prison for a determinate term of 22 years, and three terms of 15 years to life, the latter to be served consecutively to the determinate term.
Defendant’s first name is given as “Deandra” at points in the record. It appears that at various times in his life and in his extensive criminal history, defendant has also used “De Andra” and the middle name of “Lamont.” This opinion will use “Deandre” because that is the name used on the abstract of judgment and the one instance of defendant’s own signature, on a 1994 change of plea form.
Statutory references are to the Penal Code.
On this timely appeal from the judgment of conviction, defendant presents three contentions. We reject the first two of those contentions, which challenge the evidentiary sufficiency of the convictions for the rape and one of the continuing sexual conduct counts. Defendant’s final contention is that, with respect to two of the victims, he can be convicted of continuing sexual conduct over a given period, or individual acts committed within that period, but not both. The Attorney General concedes that this contention has merit, but he disagrees with defendant on whether correcting this situation requires a remand. We concur with the Attorney General, and shall correct the error by vacating two of defendant’s continuous sexual abuse convictions, thus doing away with the need for a remand for a virtually complete resentencing. We otherwise affirm the judgment.
DISCUSSION
Defendant’s two arguments attacking the sufficiency of the evidence are to be evaluated according to well-established principles. “ ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. Moon (2005) 37 Cal.4th 1, 22.) “An appellate court must accept logical inferences that the jury might have drawn from the evidence....” (People v. Combs (2004) 34 Cal.4th 821, 849; accord, People v. Carter (2005) 36 Cal.4th 1215, 1258.)
We also bear in mind that “It is the trier of fact, not the appellate court, that must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” (People v. Robillard (1960) 55 Cal.2d 88, 93; accord, People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Defendant’s Rape Conviction Is Supported By Substantial Evidence
The jury concluded that in July 2006, defendant raped the victim known as Jane Doe I, in violation of section 261, subdivision (a)(2), which provides in pertinent part: “Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶]... [¶] Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person....” “The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.” (§ 263.) Defendant contends this conviction cannot stand because there is no substantial evidence establishing the element of penetration, thus making the offense no more than attempted rape.
The victim, who at the time of the offense had just turned 13, testified to the history of defendant’s improper conduct to her, beginning when she was in the third grade. The details, which are largely the subject of the sexual penetration and lewd convictions, need not be exhaustively recounted here because they do not figure in defendant’s attack upon his rape conviction. The relevant details needed to set up discussion of defendant’s contention are few.
Defendant periodically stayed with the victim and her grandparents in a one-room apartment. Accommodations were so crowded that Jane Doe I slept on a fold-out bed in the living room, while defendant slept on a couch about four feet away in the same room. During the winter of 2001, after the victim’s eighth birthday, defendant began rubbing her leg when they were alone in the apartment. Later, after Valentine’s Day 2002, Jane Doe I, who described herself as a light sleeper, began feeling “hands touching on my body... in a weird way. And that was going on for months.” Although defendant initially tried to dismiss the matter as simply one of him falling off the couch, this pretense was quickly dropped. Soon defendant escalated to rubbing her chest and vaginal region, then exposing his penis. By the time Jane Doe I was ten, defendant was manhandling her, putting his fingers into her vagina and threatening to kill her if she told what he was doing.
After Jane Doe I turned ten in July 2003, she began “developing,” i.e., she “got my period,” “my chest got bigger,” and she began wearing a bra. These developments were not lost on defendant, whom she repeatedly caught staring at her and saying “Wow, you’ve grown.” A year later, he was still digitally violating her, even though by that time her sister, Jane Doe III, was also sleeping in the living room, on a different couch than the one defendant used when he stayed there.
The rape occurred after Jane Doe I, defendant, and her grandparents moved to a new house. Jane Doe I occupied a bedroom with Jane Doe III, although they slept on separate beds. Defendant slept on a couch in the adjacent living room. The molestations continued, and Jane Doe I told her grandmother. When confronted, defendant denied everything, but he looked at Jane Doe I with what she testified was a “mean-eyed,” “evil face.” The grandmother told Jane Doe I she did not believe the accusation.
Moreover, the grandmother resolved not to tell the grandfather for fear that “if I tell him that Deandre has molested you he might kick me out as well.”
In July 2006, shortly after Jane Doe I’s 13th birthday, she and defendant were alone in the house, and had a morning pillow fight that got out of hand. After some roughhousing and an exchange of blows between them, defendant threw her to the floor. He then got on top of her, face-to-face, stomach-to-stomach, and held her arms to the floor. Defendant stood up, but when Jane Doe I tried to do the same, he shoved and then kicked her to the floor, while at the same time kneeling and unbuckling the belt on his jeans. Jane Doe I saw his penis which was “straight out,” and “the veins were poking out.” Then he pulled off her pajama bottoms. Jane Doe I was not wearing underwear.
Jane Doe I further testified that defendant then “got on top of me.” Defendant’s feet were by her feet, between her legs. His stomach on top of hers, and “we’re looking eye to eye.” Jane Doe I felt “bare skin” against her thighs, and then “pressure against my vagina and I started to cry.” Defendant was breathing “heavy” and “hard.” The pain she felt against her vagina was “sharp,” and “the same kind... as when he used his fingers,” but “worser.” She could feel the “lower part” of defendant’s body moving. She could not feel “anything moving actually in and out of [her] vagina,” but the pain would “come and go.” This went on for about a minute, until the telephone rang and defendant got up, and she was able to escape.
Defendant contends that no rational jury could hear this evidence and conclude that a rape occurred. He bases his argument primarily on a reading of a number of statements made by Jane Doe I to a counselor at the Martinez Children’s Interview Center, in which she repeatedly insisted that defendant’s penis was never “inside” her. He does acknowledge that Jane Doe I “testified somewhat differently at trial,” but the testimony just summarized cannot be so lightly dismissed. Moreover, the jury’s power to pick and choose what it chooses to accept as credible (see, e.g., People v. Barnes (1986) 42 Cal.3d 284, 306; People v. Lacefield (2007) 157 Cal.App.4th 249, 261) means that defendant cannot use one part of the victim’s testimony to discredit other parts. That sort of analysis amounts to a credibility reweighing that is foreclosed to us as a reviewing court. (People v. Young, supra, 34 Cal.4th 1149, 1181.) Defendant’s argument is also impaired by its emphasis on the absence of an express and unambiguous statement by Jane Doe I that defendant raped her or that his penis entered her, and by our duty to view the record in a manner that discerns inferences that support the jury’s verdict.
In any event, although the victim used the word “rape” in her interview, it is not at all clear that she understood the term in its strict legal sense. Asked “when you say rape what do you mean?” Jane Doe I replied: “Physically touching you and stuff like that.”
“[I]n order to constitute the crime of rape vaginal penetration is not necessary; any penetration of the female genitalia by the penis, however slight, is sufficient.” (People v. Karsai (1982) 131 Cal.App.3d 224, 231, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) “Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not succeed in penetrating into the vagina.” (Id. at p. 232.) The same test is used for section 289, subdivision (j), the provision defendant was convicted on four counts of violating. (People v. Quintana (2001) 89 Cal.App.4th 1362, 1366-1367.)
It is clear that defendant’s repeated violations of this latter provision involved digital penetrations that went into the victim’s vagina, far beyond the legal minimum. However, because those violations were far greater than are strictly necessary for conviction, the fact that the victim in the interview adamantly denied that defendant’s penis had been “inside” to the same extent as his fingers is denuded of considerable meaning. In other words, the fact that the victim had not been vaginally penetrated as deeply as she had by defendant’s fingers—or even not penetrated at all—does not establish the absence of evidence for rape. Although the victim’s language may not have used the language of an anatomical textbook, we presume that the jury chose to interpret it as her way of describing penetration. (See People v. Stangler (1941) 18 Cal.2d 688, 690; People v. Strickland (1955) 134 Cal.App.2d 815, 818.)
Jane Doe I described one of defendant’s digital penetrations as going up to the second knuckle.
There is another approach to demonstrate that the jury had a legitimate basis for concluding that rape occurred. Viewed most favorably in support of the verdict, the record shows that defendant lay on top of Jane Doe I with an erect penis and prior knowledge of the victim’s genital area. He had pulled off the pajama bottoms of the victim, who was not wearing underwear. In other words, unimpeded genital to genital contact was established. As even defendant now implicitly concedes, his motive was sexual. With the victim’s arms immobilized, defendant’s breathing became labored as he began his pelvic thrusting. The victim felt “pressure against my vagina” that caused “sharp pain.” She subsequently told the Interview Center counselor that her “private part” hurt when she urinated. Even accepting that no vaginal penetration was achieved, the credible evidence shows penile pressure that caused pain of a non-external nature. A rational jury could reasonably conclude from this that there was “sexual penetration” (§ 263) of a “genital opening” (see People v. Quintana, supra, 89 Cal.App.4th 1362, 1366-1367) by defendant’s penis, and thus there was rape. (See People v. Holt (1997) 15 Cal.4th 619, 668-669.)
Defendant’s Conviction For Continuing Molestation Of Jane Doe IIIs Supported By Substantial Evidence
The sole count involving Jane Doe II was count eight of the information, which read as follows: “The District Attorney of the County of Contra Costa hereby further accuses Deandra Austin, Defendant of the crime of felony, a violation of Penal Code Section 288.5 (Continuous Sexual Abuse), committed as follows: [¶] On or about January 2005 through January 2006, at Richmond, in Contra Costa County, the Defendant, Deandra Austin, who resided in the same home with and had recurring access to Jane Doe II, who was a minor child under the age of 14 years, from 2005 to 2006, a period of not less than three months in duration, did unlawfully engage in three and more acts of substantial sexual conduct and lewd and lascivious conduct with the child.”
The cited statute defendant was alleged to have violated provides in pertinent part: “Any person who either resides in the same house with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd and lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.” (§ 288.5, subd. (a).)
Defendant raises two arguments to overturn this conviction. First, he contends that “there is insufficient evidence that three or more sexual acts occurred over more than three months.” Second, he asserts that there is no evidence he “committed three acts of sexual abuse during a three month period during the times alleged in the information.” We do not agree.
Unlike his initial contention, defendant is not now asserting that there is no substantial evidence that he committed criminal acts of sexual impropriety against Jane Doe II, only that those acts do not satisfy the chronology required for conviction under section 288.5. But in framing his second argument, defendant has—perhaps inadvertently—misstated the time period. Section 288.5 does not require that the acts of sexual impropriety occur only within a three-month-period, but that they occur over a period that is at least three months in duration.
The victim must be able to describe the number of acts and “the general time period in which those acts occurred.” (People v. Jones (1990) 51 Cal.3d 294, 316.) Additional details from other sources may be considered in establishing the elements of the crime. (Ibid.) “[T]he prosecution need not prove the exact dates of the predicate sexual offenses in order to satisfy the three-month element. Rather, it must adduce sufficient evidence to support a reasonable inference that at least three months elapsed between the first and third sexual acts. Generic testimony is certainly capable of satisfying that requirement....” (People v. Mejia (2007) 155 Cal.App.4th 86, 97.)
Again we emphasize that defendant cannot prevail by reading the record only for inconsistent or even contradictory testimony by Jane Doe II. (People v. Barnes, supra, 42 Cal.3d 284, 306; People v. Mejia, supra, 155 Cal.App.4th 86, 98-99.) Thus, we do not give literal credence to her testimony that all the objectionable acts she suffered occurred within a period of two weeks.
At the time she testified in March 2008, Jane Doe II was 12 years old and in the seventh grade. In her talk with the counselor at the Martinez Children’s Interview Center on December 18, 2006, Jane Doe said that defendant “started feeling me... about a year ago,” which would make it about December 2005. Jane Doe II lived with her grandfather while she finished the fifth grade and started the sixth grade. It was December 2006 that she stopped living at her grandfather’s house. Jane Doe II spent the summer of 2006 living with her father, but she visited her grandfather about twice a month during that period. While living with her grandfather, Jane Doe II would commonly spend weekends with either her father or her mother (who did not live together).
The first of the offensive touching was a daytime incident when defendant started massaging her foot and moved up her leg until “he tried to go in my underwear” and touch her “personal area,” telling her afterwards that “it will be our little secret.” The second incident also involved defendant rubbing her leg. Another was when defendant touched her chest when she was in bed at night. Then there was the time that defendant “flicked” her chest while they were watching television. In addition, Jane Doe II testified that there were numerous instances when defendant grabbed, touched, or fondled her buttocks.
Jane Doe II identified the first incident as occurring in summer 2006, when she was wearing a school uniform required for sixth graders, even though she had not yet started the sixth grade. The chest “flicking” incident occurred a few days after Halloween, after school had commenced. At least one of the buttock touching incidents occurred “in the middle of summer.”
The jury could reasonably conclude that when Jane Doe II pegged one of the buttock touching incidents as occurring “in the middle of summer,” she meant it literally, thus identifying the month as July. The chest flicking incident obviously occurred in early November. The jury could also conclude that Jane Doe II was wearing her new sixth grade uniform in anticipation of attending the sixth grade. It is a reasonable inference that she would do so closer to the start of the sixth grade, that is, that the incident occurred in August or September. This would be in keeping with her testimony that “school hadn’t started yet” but she had been to her “orientation” for the sixth grade. Thus, there is a substantial basis for the jury concluding that one act occurred in July, one in August or September, and one in early November.
Or maybe even earlier. Jane Doe further testified “I call it the middle of summer because it’s like summer, but it’s not summer. [¶] Q. It’s still warm outside but it’s not summer? [¶] A. Yeah.” This might mean early June, or even May.
In light of the foregoing, we conclude that defendant’s conviction on count eight has the support of substantial evidence.
Sentencing Error Did Occur, But It Can BeCorrected Without The Necessity Of A Remand
Defendant was also convicted of violating section 288.5 with respect to Jane Doe I and Jane Doe III, in counts seven and nine, respectively. Defendant contends that the specific acts supporting these continuous abuse counts were also charged separately in counts one through five, with respect to Jane Doe I, and counts ten through thirteen, with respect to Jane Doe III. Defendant argues that he can be convicted under section 288.5, or for the constituent acts, but not both. Defendant is correct. (People v. Johnson (2002) 28 Cal.4th 240; People v. Bautista (2005) 129 Cal.App.4th 1431; People v. Torres (2002) 102 Cal.App.4th 1053.) The Attorney General “agrees with appellant that he cannot stand convicted of both (1) the continuous sexual abuse counts involving Jane Doe 1 and 3 and (2) the individual crimes in which they were the victims.” The only disagreement is to remedy.
The Supreme Court in People v. Johnson, supra, 28 Cal.4th 240, did not address the issue. (See id., at p. 245; People v. Torres, supra, 102 Cal.App.4th 1053, 1057.) Our colleagues in Division One decided that the appropriate remedy was to vacate the conviction for violating section 288.5, not the ten convictions subsumed within it. (People v. Torres, supra, at p. 1059.) We went the other way and left the section 288.5 count intact. (People v. Bautista, supra, 129 Cal.App.4th 1431, 1438.) In both decisions, the professed goal was to have the defendant convicted of the charge(s) that would be “ ‘most commensurate with his culpability.’ ” (People v. Bautista, supra, at pp. 1437 1438; People v. Torres, supra, at p. 1059.)
Defendant argues that we should remand in order that the trial court, “which is most familiar with the offenses and other facts bearing on sentencing, can determine whether [he] should stand convicted of the continuous sexual abuse counts or the separate offenses, and can impose the sentences commensurate with his culpability.” The Attorney General differs, arguing there is no need for a remand because “the trial court here... imposed a greater aggregate sentence on the individual counts than the sentences for the continuous sexual abuse counts,” and hence it is appropriate that we simply vacate defendant’s counts on counts seven and nine.
In order to provide context to our decision, it is useful to set out the trial court’s sentences:
The determinate sentence of 22 years was computed as follows:
Count Eight—mid-term of 12 years (principal term)
Count Seven—four years (one-third of mid-term) concurrent to count eight
Count Nine—four years (one-third of mid-term) concurrent to counts eight and nine
Count One—two years (one-third of mid-term) consecutive to count eight
Count Two—two years (one-third of mid-term) consecutive to count one
Count Three—two years (one-third of mid-term) consecutive to count two
Count Four—two years (one-third of mid-term) consecutive to count three
Count Twelve—one year (one-third of mid-term) consecutive to count four
Count Thirteen—one year (one-third of mid-term) consecutive to count twelve
The indeterminate terms were as follows:
Count Five—15 years to life, concurrent to sentence on counts six, ten and; eleven; stayed per section 654
Count Six—15 years to life sentence, to be served consecutive to the determinate sentences
Count Ten—15 years to life, to be served consecutive to count six
Count Eleven—15 years to life, to be served consecutive to count ten
When the trial court’s sentencing scheme is viewed in this manner, it very quickly becomes clear why we agree with the Attorney General’s proposed remedy. Counts seven and nine have no genuine impact because both are to run concurrent to count eight, the same offense committed against Jane Doe II. Thus, vacating them is not only the numerically simpler task, it leaves intact virtually the entire sentencing plan developed by the trial court. By contrast, defendant’s proposal appears to accept that the trial court is likely to prefer saving counts seven and nine at the expense of no fewer than nine other counts. Two of those nine, counts five and ten, carry terms of 15 years to life. In order to impose those two sentences, the trial court elected to strike prior felony enhancements under the Three Strikes Law. We discern scant likelihood that, having taken so much care in constructing its sentencing plan, the trial court would embrace the opportunity of doing it all over again. We therefore adopt the Attorney General’s solution and vacate defendant’s convictions on counts seven and nine. Not only does it leave almost all of the trial court’s sentencing scheme in place, it also punishes defendant in a manner “ ‘commensurate with his culpability.’ ” (People v. Bautista, supra, 129 Cal.App.4th 1431, 1437-1438; People v. Torres, supra, 102 Cal.App.4th 1053, 1059.)
The trial court stated at the sentencing hearing that it had given “an inordinate amount of time” and “a great deal of thought” to the appropriate sentencing, which “was about as complicated as you can have it.” Moreover, the court stated that it was sentencing as it was on counts seven and nine “as a safeguard to protect the [overall] sentence that I’m imposing here.”
DISPOSITION
The convictions on counts seven and nine are vacated. The judgment of conviction is affirmed in all other respects. The clerk of the trial court is directed to prepare and amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: Kline, P.J., Lambden, J.