Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. KA082978, Thomas C. Falls, Judge.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Angel Roberto Delgado challenges the sufficiency of the evidence to support his conviction of attempted rape (Pen. Code, § 664, 261, subd. (a)(4)). He also contends the trial court abused its discretion in denying probation.
Substantial evidence supports the conviction. Defendant has not demonstrated that the denial of probation was irrational or arbitrary. We affirm the judgment of conviction.
FACTUAL AND PROCEDURAL SUMMARY
Since defendant challenges the sufficiency of the evidence to support his conviction, “‘“we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”’” (People v. Foster (2010) 50 Cal.4th 1301, 1348, quoting People v. Lewis (2009) 46 Cal.4th 1255, 1289.) We view the evidence in the light most favorable to the prosecution. (Ibid.)
N.T. was an 18-year-old college student on October 12, 2007, when she attended a birthday party for her friend, Marisel M. Other college students also attended. N., Marisel, and Trisha E. first went to the home of Marisel’s father, Jose M., so he could drive them to a club. Jose served liquor to Marisel, N., and Trisha at his house. N. had three shots of tequila. Defendant, a friend of Jose’s known as “Beto, ” arrived at the house. N. had never met him. Other members of the soccer team arrived and rides for all of them to the club were arranged.
After several hours at the club, the group returned to the M. house. N. became sleepy so Marisel arranged for her to sleep in a spare bedroom. N. got into bed wearing the clothes she wore at the club: skinny jeans, a halter top shirt, and both shorts and underwear. N., a very heavy sleeper, fell asleep immediately. At some point, Trisha came into the bedroom, got into the same bed, and went to sleep.
N. woke up to find defendant on top of her. She pushed him away and started to cry. Trisha woke up and demanded that defendant leave. N.’s pants, shorts, and underwear had been pulled down to her ankles, leaving her naked below the waist. Although the room was dark, Trisha saw defendant make the motion of picking up his pants. He opened the door and left. In the light of the doorway, both N. and Trisha identified defendant.
The incident was reported to the police at 1:30 a.m. on October 14, 2007. There was no semen on N.’s clothing, but there were blood stains on her shorts and underwear. Y-typing DNA testing was performed on the blood samples, which tests only for male DNA. The major DNA profile, of two detected, was consistent with the profile obtained from the sample provided by defendant. That profile was estimated to be found in one in 368 Hispanic men. The account of the incident with defendant which N. gave to nurse McClung was consistent with her trial testimony except she told McClung that defendant’s pants were unzipped but not down.
Defendant was arrested and charged with rape of an unconscious person (count 1, Pen. Code, § 261, subd. (a)(4) ), attempted rape of an unconscious person (count 2, §§ 664/261, subd. (a)(4)), and assault with intent to commit a felony (count 3, § 220, subd. (a)). The trial court dismissed counts 1 and 3 pursuant to defendant’s motion to dismiss under section 995. The defense was that any contact between defendant and N. was consensual. The jury convicted defendant of attempted rape of an unconscious person.
Statutory references are to the Penal Code unless otherwise indicated.
Probation was denied and defendant was sentenced to an 18-month term in state prison. This timely appeal followed.
DISCUSSION
I
Defendant argues there was insufficient evidence to support his conviction for attempted rape of an unconscious person, so that his conviction of that crime violated his right to due process of law under the Fourteenth Amendment to the United States Constitution.
Rape of an unconscious person in violation of section 261, subdivision (a) is “an act of sexual intercourse, accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:... [¶] (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, ‘unconscious of the nature of the act’ means incapable of resisting because the victim meets one of the following conditions: [¶] (A) Was unconscious or asleep....” “‘An attempt to commit rape has two elements: the specific intent to commit rape, and a direct but ineffectual act done toward its commission.”’ (People v. Lee (2011) 51 Cal.4th 620, 633, quoting People v. Guerra (2006) 37 Cal.4th 1067, 1130.) “The act must be a direct movement beyond preparation that would have accomplished the crime of rape if not frustrated by extraneous circumstances.” (People v. Guerra, supra, 37 Cal.4th at p. 1130.) “Proof of even slight acts beyond preparation done in furtherance of the intent to rape will constitute an attempt. [Citations.]” (Id. at p. 1132.) “A defendant’s specific intent to commit a crime may be inferred from all of the facts and circumstances disclosed by the evidence.” (Id. at p. 1130.)
Defendant argues the evidence was insufficient to establish that he knew N. was unconscious and had the specific intent to rape her. Without citing to the record on appeal, defendant argues N.’s testimony was inherently improbable because of inconsistencies regarding (1) the position of appellant’s pants, (2) whether she was wearing a belt, (3) the color of the sheets on the bed, and (4) whether she delayed reporting the incident to the police because she worked a double shift at work or because she went to a party at her uncle’s after work.
Claimed inconsistencies in the testimony of Trisha also are cited by defendant. Once again he fails to cite the record on appeal to support his argument. He claims that Trisha testified at the preliminary hearing that his pants were up when he stood and walked out of the bedroom. At trial, he says that she testified that his pants were around his knees and that he picked them up on his way out of the bedroom.
Defendant asserts that the police officer witnesses “had their credibility problems....” He characterizes Officer Tyler Kennedy, who had a limited role in this investigation, as “aka the ‘dirty cop’” and recounts information about that officer’s purported involvement with women who had reported sex crimes to the West Covina Police Department, and newspaper articles on that topic. Appellant asserts that his prison sentence was recalled and hearings were held for discovery of any impeachable evidence, apparently regarding Officer Kennedy. No issue on appeal is raised about Officer Kennedy’s testimony or role in this case relevant to these assertions.
We view such an irrelevant and unsupported ad hominem characterization with disfavor. We note that counsel for appellant also described N. as “aka the ‘victim’, ” Trisha E. as “aka the ‘advocate’, ” and Marisel M. as “aka the ‘honest one.’” These characterizations are inappropriate.
Citing N.’s twenty-four hour delay in reporting the attempted rape, defendant suggests that an absence of evidence of the perpetrator’s bodily fluids on the victim may be strong evidence that the perpetrator did not have, or intend to have, sexual contact with the victim. He cites a number of murder cases in which there were no eye witnesses and the issue was whether the defendant harbored the intent to commit rape or attempted rape or other sex acts. In People v. Rundle (2008) 43 Cal.4th 76, 139-140, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 417-418, the victim’s unclothed body was found in a state of decomposition, and other evidence was inconclusive as to whether a sexual assault had occurred. The Supreme Court contrasted cases in which a victim’s body is found a relatively short time after the crime. It observed that where the victim is found quickly, it is more likely that the crime scene and victim’s body will show evidence of sexual assault and the absence of this type of evidence may indicate no sexual contact occurred or was intended. (Ibid.) The Supreme Court found sufficient evidence for a rational trier of fact to find the defendant attempted to rape the bound victim, based on the defendant’s own admissions. (Id. at p. 140; see also People v. Johnson (1993) 6 Cal.4th 1, 39-42, overruled on another ground in People v. Rogers (2006) 39 Cal.4th 826, 879 [evidence found insufficient to support a finding of first degree murder based on rape or attempted rape of victim where only evidence of sexual assault was the victim’s partially clothed body]; People v. Anderson (1968) 70 Cal.2d 15, 34-36 [evidence insufficient to support first degree felony murder conviction for a killing committed with the intent to commit a lewd act on a child where evidence showed only infliction of multiple acts of violence on the victim]; People v. Craig (1957) 49 Cal.2d 313, 318-319 [evidence that murder victim with multiple contusions was found partially clothed with clothing ripped open exposing front of her body, lying on her back with legs spread apart, was insufficient to establish defendant harbored intent to commit rape].
The cases cited by defendant are distinguishable because here, unlike the murder cases cited, we have the testimony of the victim and of Trisha. Each testified that defendant was on the bed with N., over her body, and had pulled her clothing down to expose her. His own pants were down. DNA of a type consistent with defendant’s was found on N.’s clothing. A rational jury could find defendant harbored an intent to commit attempted rape based on this evidence.
Substantial evidence also supports the jury’s conclusion that defendant was aware that N. was asleep as he attempted to rape her. N. testified that she awoke to find defendant over her and her clothing already pulled down to her ankles. She did not feel anyone unbuttoning or unzipping her jeans or removing her clothing. N. testified that she was disoriented and could not figure out what was going on because she had been sleeping. Trisha also testified that N. was not fully awake, was confused, and did not seem to know what had happened. Marisel also testified that N.’s pants were unzipped and that her clothing was down past her knees.
Our case is similar to People v. DePriest (2007) 42 Cal.4th 1, in which the court found support for attempted rape from evidence that the defendant tore off the victim’s pants, unzipped and possibly lowered his own pants, and that the victim was nude below the waist and had injuries to her vagina. (Id. at p. 48-49; see also People v. Wallace (2008) 44 Cal.4th 1032, 1078-1079 [sufficient evidence of attempted rape where victim was beaten unconscious on the floor of her residence, naked below the waist, and defendant found in the house with his belt unfastened and pants buttoned only at the top]; People v. Rundle, supra, 43 Cal.4th 76, 139 [evidence victim was found partially or wholly unclothed, while not sufficient in itself to prove attempted rape, is a relevant circumstance for consideration by the jury].)
Defendant argues that N. and Trisha’s testimony is inherently improbable and that his version of the events was “somewhere closer” to the truth. His version was that consensual flirting, hugging, and kissing led N. to enter the bedroom with him, where she removed her own pants. At that point, Trisha woke up. In essence, defendant asks us to reweigh the evidence, contrary to the standard of review. We find nothing inherently improbable in the testimony given by N. and Trisha. We may not substitute our evaluation of the credibility of the witnesses for that of the jury. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Substantial evidence supports the defendant’s conviction for attempted rape of an unconscious person.
II
Defendant argues that in denying his request for probation, the court improperly relied on his lack of remorse and refusal to accept responsibility for the offense, constituting an abuse of discretion warranting reversal for resentencing.
At the sentencing hearing, defendant argued he should receive probation because his only prior offense was driving under the influence; no actual force was used on the adult victim who has no physical disability and was not injured; he is gainfully employed and supports two children; he is a legal resident; he was cooperative with investigating officers; and he caused no problems while on bail for two years pending trial.
The prosecution argued that circumstances in aggravation included defendant’s refusal to get off of N. when she awoke, and N.’s vulnerability. It also contended that defendant took advantage of a position of trust or confidence, based on his friendship with Jose M. The probation report recommended that probation be denied and that defendant be sentenced to a mid-term prison sentence. The STATIC 99 is a risk assessment instrument used to assist in predicting sexual or violent recidivisim by sex offenders. Defendant received a score of 2 on this scale indicating a moderate-low range of risk.
The court heard statements from N., her aunt, defendant’s nephew, his aunt and several friends, including a deputy public defender. N. had attempted suicide as a result of this attack and had been hospitalized for several days. At the sentencing hearing, the court considered factors in mitigation and aggravation in determining whether probation was appropriate. It explained that this case presented a choice between N.’s testimony and defendant’s; either this was attempted rape or consensual sex, with no middle ground. The court found N. was particularly vulnerable because she was in what she believed to be a safe place; that defendant had inflicted extreme emotional distress on her, but that she suffered no physical injury; and defendant was not in a position of trust or confidence in relation to N.
After considering other factors in mitigation and aggravation, the trial court considered whether defendant was remorseful. The court referred to a letter it received from defendant, in which he said he had learned not to get involved with people he does not know. The court said it did not “sense that the defendant has grasped the significance of the acts that he committed and is remorseful for them.” Counsel for defendant argued that the letter demonstrated defendant’s remorse. The prosecutor disputed this construction of defendant’s letter, contending there was no indication he was remorseful or that he understood the damage he had done to N.
After argument by counsel, the court stated that it had considered all the sentencing factors and concluded that defendant would be amenable to probation except he had not accepted responsibility for what he had done. (Cal. Rules of Court, rule 4.414(b)(7).) The court concluded that defendant’s lack of remorse and the emotional damage done to the victim outweighed the other factors, and based on that conclusion, denied probation.
The court went on to find that the mitigating factors outweighed the aggravating factors and determined that the appropriate sentence was the low term. In the colloquy about whether the low, middle, or high term was the appropriate sentence, the court said: “The court has acknowledged the great emotional damage caused to the victim as well as the lack of remorse, the vulnerability of the victim in denying probation. The court is also mindful that the defendant has no prior criminal record but for the D.U.I., that he did successfully complete probation, no actual force was used in the crime. The court did find that but for the fact he is refusing to accept responsibility for his actions, he would be amenable to probation.” The court then reiterated that the mitigating factors outweighed the aggravating factors and imposed the low term of one year, six months in state prison.
Defendant cites the last quoted passage in which the court found that defendant was amenable to probation but for his refusal to accept responsibility for his actions. He contends that it was improper for the court to deny probation based on his lack of remorse and refusal to accept responsibility.
We review a trial court’s decision to grant or deny probation for abuse of discretion. (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091; People v. Superior Court (1992) 5 Cal.App.4th 822, 831.) The discretion to grant probation is broad and we may not substitute our judgment for the judgment of the trial judge. (People v. Stuart (2007) 156 Cal.App.4th 165, 178-179.) The burden is on the party attacking the sentence to clearly show that the sentencing decision was arbitrary or irrational. (Id. at pp. 179.) We will not set aside the trial court’s decision to impose a particular sentence unless such a showing is made. (Ibid.)
We conclude that defendant did not forfeit his claim that the trial court improperly used his lack of remorse as a basis for denying probation. Defense counsel’s argument regarding the remorse was sufficient to preserve the issue for appeal.
As respondent points out, the trial court generally may consider whether the defendant is remorseful in determining suitability for probation. (People v. Leung (1992) 5 Cal.App.4th 482, 507; Cal. Rules of Court, rule 4.414(b)(7).) Where the defendant has denied guilt and the evidence of guilt is not overwhelming, lack of remorse may not be used as an aggravating factor. (People v. Leung, supra, at p. 507.) Here, while defendant denied guilt, the evidence presented by N., Trisha, and Marisel was overwhelming. Defendant’s version of events was rejected as not credible by the jury.
In addition, the court based its denial of probation on the additional factors that the victim was particularly vulnerable and that defendant had inflicted severe emotional injury on her. These factors are properly taken into account in considering a grant of probation. (Cal. Rules of Court, rule 4.414(a)(3), (4).) Defendant has failed to demonstrate that the court’s denial of probation was arbitrary or irrational.
DISPOSITION
The judgment of conviction is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.