Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge. Super. Ct. No. VCF133346.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
A jury found defendant James Fleming guilty of all 10 charged counts arising from an extended assault on his wife, J. He was sentenced to a determinate term of 68 years in prison, with a consecutive term of 55 years to life, followed by a consecutive term of life plus four years, with possibility of parole. Defendant appeals.
As relevant to this appeal, one of the counts upon which defendant was convicted was spousal rape, a violation of Penal Code section 262, subdivision (a)(1). Defendant’s only contention on appeal is that there was insufficient evidence to support his conviction on this charge and that we should reduce the conviction to attempted spousal rape. He says the prosecution failed to establish defendant accomplished sexual intercourse with the victim.
Sexual intercourse, as the jury was instructed, consists of “any sexual penetration, however slight” (Pen. Code, § 263); sexual intercourse does not require that the assailant’s penis enter the victim’s vagina. “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 thereafter succeed in penetrating into the vagina.” (People v. Karsai (1982) 131 Cal.App.3d 224, 232.)
People v. Karsai, supra, 131 Cal.App.3d 224 was disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, footnote 8.
On review of the sufficiency of the evidence to support a conviction, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which 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. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re James D. (1981) 116 Cal.App.3d 810, 813.)
In this case, the victim told an emergency room nurse that defendant “penetrated me but couldn’t keep it up.” The victim told the investigating detective in an interview about an hour after the her call to 911 that defendant “put his penis in her vagina at least one time. He was trying to do that, but he was having problems maintaining an erection.” She told the nurse who performed a sexual assault examination the next morning that defendant “attempted to penetrate her vagina with [his] penis several times.” Defendant does not contend this evidence was improperly admitted nor that the jury could not have believed the truth of the statements. Indeed, defendant does not contend that the jury was not permitted to disbelieve the victim’s wholly inconsistent testimony at trial (the sex was consensual and she hit her head on a table when she slipped on the kitchen floor).
Defendant, however, discounts the foregoing as “isolated bits of evidence” that a jury could not reasonably have believed in light of the other evidence. The “other evidence” to which he points is a second interview with the detective, conducted about five hours after the first interview, in which the victim said defendant “proceeded to try to do something, but was un-capable of doing it.” Not only is this statement inconclusive about penetration of the victim’s external genitalia, but the jury could well have rejected this statement as the beginning of the victim’s false recantation of her earlier accusations against defendant. Defendant also relies on an erroneous rephrasing of the victim’s statement to the sexual assault nurse, claiming the victim said defendant “only attempted to penetrate her genitalia.” In light of the issue raised by defendant on appeal, it is not persuasive to base an argument on a rephrasing that disregards the difference between “attempting to penetrate the vagina” and “attempting to penetrate the genitalia.”
We conclude the victim’s repeated statements in her initial interviews constitute substantial evidence of penetration for conviction of spousal rape.
Disposition
The judgment is affirmed.