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People v. Gonzalez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Apr 26, 2018
A150214 (Cal. Ct. App. Apr. 26, 2018)

Opinion

A150214

04-26-2018

THE PEOPLE, Plaintiff and Respondent, v. SILVIANO CASTANEDA GONZALEZ, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-15-84131)

Following a bench trial, the court found defendant guilty of lewd act on a child, attempted forcible rape, nonforcible oral copulation, and nonforcible sexual penetration, all involving a minor under the age of 14. Defendant is focused solely on the attempted forcible rape conviction, asserting there was insufficient evidence he had the specific intent to use force to accomplish an act of sexual intercourse. We disagree and affirm.

I. FACTS AND PROCEDURE

When the victim, C.C., was nine years old, she lived in Ukiah in an apartment with her mother, stepfather, three siblings, and defendant (her stepfather's brother). Defendant was 35 years old. While defendant was living with C.C. and her family, on several occasions defendant molested her. C.C. testified that on one occasion when she and defendant were in the living room, defendant kissed her like she was "kind of his girlfriend" by placing his mouth on her mouth and putting his tongue in her mouth. The kiss made C.C. feel "Weird," and she told defendant, "No more."

In a separate incident, the subject of this appeal, C.C. was trying to use the bathroom when defendant walked in on her. She was standing by the sink and told him, "Please go out so I can use the bathroom." Instead of leaving, however, defendant lifted C.C. up onto the counter by the sink. Then, according to C.C., defendant pulled down her underwear, unbuttoned his pants revealing his "private part," and "[t]ried to put it into my private part." C.C. told defendant to "Stop," closed her legs, and pushed him away. After she told defendant to "Stop," he said, "No, just a little bit." Then he either touched his "private part" to her "private part" or put his "private part inside of [her] private part" for a second. C.C. told him, "No more," closed her legs, and got off the counter. Initially, C.C. testified it did not hurt when he put his "private part" inside of her, but later stated it did hurt. She also testified she saw "some white stuff" come out of defendant's "private part." These incidents, according to C.C., happened basically at the same time. Defendant told her not to tell anyone about what happened in the bathroom because he "didn't want to get in trouble." Because C.C. was scared, she did not tell anyone that day about the bathroom molestation.

Initially, C.C. testified defendant touched her "private part" with his "private part," but shortly thereafter stated he put his "private part" inside of her "private part" for a second.

The Attorney General claims defendant "opened [C.C.'s] legs again." We have found nothing in the record to support this claim.

At one point during direct examination, C.C. testified she left the bathroom after the initial molestation, however, in subsequent testimony, as described above, she stated everything happened at the same time. Moreover, C.C. never testified she returned to the bathroom, and neither trial counsel sought to clarify the timing of the events in the bathroom.

C.C. also testified about two additional incidents of molestation. We briefly summarize these incidents as they are not the subjects of this appeal. On one occasion when C.C. and defendant were on the couch in the apartment, defendant grabbed her hand and put it under a blanket covering them, and made her "touch his private area." As she tried to take her hand out, defendant said, "Just feel." Simultaneously, defendant placed his fingers inside her "private part." C.C. removed her hand from defendant's "private part" after it became "gross and slimy."

Finally, C.C. described an instance that occurred while she was watching a movie with defendant in the living room. C.C. testified defendant instructed her to take off her clothes. She complied, but kept her underwear on. Defendant pulled C.C.'s underwear aside and put his mouth on her "lower part where you go to the bathroom."

Though all of the described molestations occurred in 2012 and 2013, it was not until C.C. was placed in foster care when her allegations of abuse were investigated by the Ukiah Police Department in December 2014, following a referral from Child Protective Services.

In December 2015, after defendant was located, he came to the police department where he was interviewed by two detectives. At the commencement of the interview, defendant admitted he had touched C.C. "two times," but it was "on accident." Specifically, he indicated there were a "few times," he might have touched C.C. when she jumped on top of him while he was "laying down," and "she took it the wrong way."

One of the detectives who was fluent in Spanish acted as a translator for defendant.

As to the bathroom incident, defendant admitted he put C.C. on top of the counter "just like—like playing," and he put his "parts a little bit into hers." But he maintained, "I didn't hurt her. It was like playful." According to defendant, he touched C.C. with his penis "a little bit . . . a minute or two." He also claimed his penis was not erect; it was "just kinda wiggling by her." Following the molestation, defendant instructed C.C. to shower, and asked her to forgive him. After C.C. stepped out of the shower, she was crying with him, and defendant told her he could "go to jail." C.C. promised she would not tell anyone. Defendant admitted to the detectives he "wasn't doing the right thing because I love her a lot."

Additionally, defendant admitted, on a separate occasion, he was laying down on the couch covered by blankets when C.C. jumped on him, and he touched her "a little bit" on her breast and "butt." He claimed C.C. wanted to touch him, but he told her "it wasn't right."

Lastly, defendant acknowledged to the detectives he kissed C.C. and licked her "in her part."

An information was filed on February 4, 2016, charging defendant with forcible rape of a victim under 14 years (Pen. Code, §§ 261, subd. (a)(2)/264, subd. (c)(1); count one); forcible oral copulation with a victim under 14 years (§ 288a, subd. (c)(2)(B); count two); forcible sexual penetration of a victim under 14 years with a foreign object (§ 289, subd. (a)(1)(B); count three); and lewd or lascivious act with a child under 14 years (§ 288, subd. (a); count four).

All statutory references are to the Penal Code.

Defendant waived his right to a jury trial. Following a bench trial, the court found defendant guilty of count four, lewd or lascivious act with a child under 14, and guilty of the following lesser included offenses for counts one, two, and three, respectively: attempted forcible rape of a victim under 14, nonforcible oral copulation of a victim under 14, and nonforcible sexual penetration of a victim under 14.

As to counts two and three, the court also found that at the time of the offenses, the victim was more than 10 years younger than defendant.

Several months later, the trial court sentenced defendant to 11 years 10 months in state prison.

Defendant filed a timely appeal.

II. DISCUSSION

Defendant contends his conviction for attempted forcible rape must be reversed for lack of sufficient evidence he specifically intended to use force to accomplish an act of sexual intercourse. He does not dispute the evidence supports a finding he attempted to have sex with C.C. when she was nine years old. However, he argues "at no point did his actions suggest his intent to use force to overcome C.C.'s will in order to vaginally penetrate her with his penis."

We review defendant's claim under the familiar substantial evidence standard. Under this test, "we must determine 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 or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also be reconciled with a contrary finding." (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)

Defendant was convicted of attempted rape upon a child under 14 years of age. Forcible rape is defined as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator" (§ 261, subd. (a)) where the act "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 or another" (id., subd. (a)(2)). "The crime of attempted rape has two elements—a specific intent to rape and a direct but ineffectual act done toward its commission." (People v. Miranda (2011) 199 Cal.App.4th 1403, 1418.) Although the act must go beyond mere preparation and demonstrate the perpetrator is putting his plan into action, it need not be the last proximate or final step toward commission of the substantive crime. (People v. Kipp (1998) 18 Cal.4th 349, 376.)

Here, substantial evidence supports the prosecution's theory that defendant had the specific intent to use force to overcome C.C.'s will in order to have sexual intercourse with her in the bathroom. At the relevant time, C.C. was only nine years old, and defendant was 35. Defendant was C.C.'s stepfather's brother, and he was living in the same household at the time of the attempted rape. While C.C. was trying to use the bathroom, defendant entered without her permission. Rather than leave the bathroom after C.C. asked him to "Please go out," he lifted her up onto the counter by the sink, and pulled down her underwear. He then unbuttoned his pants revealing his penis and tried to penetrate her. Even after C.C. resisted by telling defendant to "Stop," closing her legs, and pushing him away, defendant persisted stating, "No, just a little bit." Then he tried to insert his penis inside of her vagina which C.C. said hurt. Evidently, defendant desisted abusing her only after he ejaculated.

The trial court did not state its reasons on the record for finding defendant guilty of attempted forcible rape. --------

Defendant argues it is "far too speculative" to infer he specifically intended to forcibly rape C.C. in light of the trial court finding defendant not guilty of forcible rape—that is defendant did not complete the act of sexual intercourse. He also asserts the trial court's acquittal of him for the crimes of forcible oral copulation and forcible sexual penetration with a foreign object supports the "reasonable conclusion that at no point did [defendant] intend to overcome C.C.'s will through the use of force to satisfy his sexual desires."

We believe defendant is engaging in his own form of speculation. And as previously noted, we must review the evidence in the light most favorable to the prosecution. Considering the totality of the circumstances including C.C.'s young age, her relationship with defendant, his presence in the household, his physical acts of lifting C.C. onto the counter and immediately pulling down her underwear, and his persistent attempts to have sexual intercourse with C.C. in the bathroom, the trial court could have reasonably found defendant had the specific intent to use force in an attempt to commit the act of rape. There was thus ample evidence to support defendant's conviction for attempted forcible rape.

III. DISPOSITION

The judgment is affirmed.

/s/_________

Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.


Summaries of

People v. Gonzalez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Apr 26, 2018
A150214 (Cal. Ct. App. Apr. 26, 2018)
Case details for

People v. Gonzalez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SILVIANO CASTANEDA GONZALEZ…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Date published: Apr 26, 2018

Citations

A150214 (Cal. Ct. App. Apr. 26, 2018)