Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF016671, Rodney L. Walker, Judge.
Richard L. Fitzer, 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, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant Jorge Antonio Barajas appeals from a guilty verdict on one count of kidnapping for the purpose of rape in violation of Penal Code section 209, subdivision (b)(1). He argues there is insufficient evidence to support the jury’s guilty verdict on the charge of kidnapping for rape.
The jury also found defendant guilty of one count of residential burglary in violation of Penal Code section 459. However, defendant does not challenge the burglary conviction and the facts of the burglary are not connected to the kidnapping for rape charge. As a result, the factual and procedural background for this offense is not relevant to our analysis.
FACTUAL AND PROCEDURAL BACKGROUND
The 22-year-old victim testified she lived in a home with a gated driveway. The gate was not usually locked but had to be pushed to roll it open and closed. She testified it was her usual practice when leaving home in the morning to first start her car and then go back inside to change and get her bag. On the morning of May 3, 2006, the victim testified she awoke about 5:15 a.m., went out to the driveway to start her car, and then went back inside to get ready to leave for the gym. Although she got into the car and began to drive away, she came back when she realized she had forgotten to feed her dogs. With her car idling in the driveway, the victim went back inside the house to feed the dogs, returned to her car, and drove off again.
Shortly after merging onto the freeway, the victim felt the back of her seat move. She turned to look behind her and saw defendant in the backseat. He told her not to look at him and said he had a knife. She felt pressure and something touching against her right hip. She pulled the car over into the emergency lane and activated her emergency flashers. Defendant told her to shut the emergency flashers off and to exit the freeway. She offered to let defendant take the car and asked if she could leave. Defendant said, “No,” and he told her to keep driving.
From this point forward, defendant directed the victim where to drive. While she was driving, he asked her some personal questions, such as where she had intended to go that morning and what her favorite equipment was at the gym. When they arrived at a dirt road, the victim asked defendant once again to just take her car, but he refused and told her to continue driving. A few minutes later, defendant told the victim to turn the car off. Again, she asked to leave but defendant refused and instructed her to get in the backseat of the car with him.
The victim cried and pleaded for defendant to let her leave, but defendant locked the door and in a violent tone told her to get in the backseat. She heard rustling in the backseat and believed defendant was taking off his belt. Defendant grabbed her and tried to pull her into the backseat. After a brief struggle, the victim opened the car door, escaped from the car, and ran. Defendant chased her with the car, so she ran up a hill. She was eventually able to run to the freeway and flag down a motorist who called police.
DISCUSSION
Defendant contends there is only enough evidence in the record to support a conviction for simple kidnapping, rather than aggravated kidnapping for the purpose of rape, because there is no evidence he developed the specific intent to rape the victim until after the kidnapping commenced. According to defendant, the kidnapping commenced at the moment the victim realized he was in the backseat, but the evidence demonstrates he only developed the intent to rape the victim at a later point in time when he told her to get in the backseat. The People contend the kidnapping commenced when defendant began directing the victim where to drive. At this point in time, the People contend the evidence clearly shows defendant intended to rape the victim.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)
Generally, to establish a kidnapping, “the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance.” (People v. Dalerio (2006) 144 Cal.App.4th 775, 781.) “[T]he force used against the victim ‘need not be physical. The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances.’ [Citations.]” (People v. Majors (2004) 33 Cal.4th 321, 326-327.) Here, defendant was charged with aggravated kidnapping for the purpose of rape under Penal Code section 209, subdivision (b)(1). “[A]ggravated kidnapping by definition requires proof of specific intent.” (People v. Dominguez (2006) 39 Cal.4th 1141, 1151, fn. 6.) This means the defendant must have the specific intent to commit a rape at the time the kidnapping begins. (People v. Davis (2005) 36 Cal.4th 510, 565-566.) “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.” (People v. Pre (2004) 117 Cal.App.4th 413, 420.)
At trial, the People relied on the victim’s testimony, as well as defendant’s taped confession to a police investigator, which was played for the jury. During the confession, defendant admitted his involvement in the offense. In many important respects, his admissions were consistent with the victim’s testimony and her statements to the investigating police officer following the incident. However, during the confession, police did not really press defendant to reveal his intent when he got into the victim’s vehicle. Defendant acknowledges he admitted noticing the victim was a “hot girl” as he told her where to drive her car. He also concedes the taped confession supports a conclusion he intended to rape the victim when he tried to pull her into the backseat. However, he argues the evidence of his intent is too ambiguous to support a conclusion he specifically intended to rape the victim prior to the time the victim realized he was in the car. Defendant contends “there was no evidence [he] knew how attractive the driver was when he got in the car” and only told detectives he was planning to steal the car when he got into it. As a result, he believes the evidence only supports a conviction for simple kidnapping rather than kidnapping for rape. We disagree.
When all of the facts and circumstances are viewed together and in the light most favorable to the judgment, there is more than enough evidence from which a jury could reasonably infer defendant intended to rape the victim when he got into her car. First, defendant said he watched the victim start her car and go back inside the house. He recalled she was wearing a pink shirt. He then jumped over the gate, got into the backseat of the car, and covered himself with a jacket. When the investigator asked defendant what he was thinking while he was in the backseat with the jacket over his head, defendant first stated, “I don’t know” but then admitted thinking “[s]he was cute.” From this evidence, a jury could reasonably infer defendant’s specific intent to rape the victim was formed as he watched the victim starting her car and that is the reason he got into her backseat. Since it is clear a kidnapping commenced sometime thereafter, it is unnecessary for us to determine the precise moment the kidnapping began in order to conclude defendant had a preexisting specific intent to rape her.
Contrary to defendant’s argument, his other admissions about the events inside the victim’s car further support a conclusion his intent all along was to rape the victim. Most significantly, defendant acknowledged the victim gave him the opportunity to just take her car and let her go, but he displayed no interest whatsoever in doing so. If defendant’s actual intent had been to steal the car, there is nothing to indicate he could not have simply jumped in the driver’s seat while the victim was inside her home and driven away. Defendant also admitted that when the victim offered to let him take the car he was thinking, “she’s a hot girl.” He further admitted he would have had sex with the victim if she had gotten into the backseat. He tellingly disclosed he was familiar with the area where he told the victim to drive, knew it was secluded, and had been there previously to have sex with another female. Defendant admitted reaching into the front seat of the car when it was stopped on the dirt road and attempting to remove the victim’s seatbelt. When asked what he thought the victim was probably thinking at this point, defendant responded she probably thought he was going to rape her. Finally, defendant confessed he had taken his pants down to his knees while he was in the backseat. Given the totality of the circumstances, it would have been reasonable for the jury to conclude these admissions were merely confirmation defendant intended all along to rape the victim and that is why he got into her car. Under these circumstances, we can only conclude the evidence is sufficient to support the jury’s verdict.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J., GAUT, J.