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People v. Holland

California Court of Appeals, Fourth District, Second Division
Apr 3, 2009
No. E045846 (Cal. Ct. App. Apr. 3, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. SWF022462, Ronald L. Taylor, Judge. Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art VI, § 6 of the Cal. Const

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


RAMIREZ P.J.

Following a jury trial, defendant DeJuan Holland was acquitted of the most serious crimes of rape in concert (Pen. Code, §§ 261, subd. (a)(2), 264.1) and forced oral copulation (§ 288a, subd. (d)), and was convicted of the lesser included offense of misdemeanor battery (§ 242.) He appeals.

All further references are to the Penal Code unless otherwise indicated.

Background

Jane Doe, who suffers from hearing problems, left home without permission in August 2007, to attempt to register at a nearby high school following her expulsion. Unsuccessful, she returned home to find that her younger sister had locked her out for leaving without permission. She wandered down the street where she encountered two men, one of whom was Dominic Brown (codefendant, but not a party to this appeal). Jane Doe thought she recognized one of the men from school.

She told them she had been locked out, and they invited her to accompany them to a friend’s house where two other males were hanging out in the garage. Everyone present smoked marijuana. Eventually, two of the males left the garage to play basketball, leaving Jane Doe with defendant and his friend Dominic Brown.

Brown and Jane Doe conversed about music and then about sex. Brown asked Jane Doe if she would have oral sex with him, and she agreed. She put his penis in her mouth for a second before stopping. Brown and the girl then started kissing, and he touched her vagina. Eventually, Brown pulled her pants down and Jane Doe grabbed his penis and started to insert it, but Brown stopped her. Brown asked defendant to get him a condom, which defendant did. After putting on the condom, Brown attempted penetration until Jane Doe complained of pain, at which point he stopped.

Brown left the garage to have a cigarette. Defendant approached her. Jane Doe asked defendant if he had “six pack abs” and asked to see and feel them. Defendant asked her for oral sex, but she declined. However, Jane Doe pulled him by the shirt until he was on top of her and wrapped her legs around his waist. Defendant thought she wanted to have intercourse and attempted to penetrate her, unsuccessfully at first, due to lack of an erection. However, after a few minutes, Jane Doe pulled him on top of her again and they had intercourse. After a short time, she complained of pain, at which point he stopped. He noticed a small amount of blood on his shirt after he stopped, which shocked both him and Jane Doe.

When Brown returned to the garage, he saw defendant on top of Jane Doe, and her legs were wrapped around him. Brown waited outside until they were finished; Jane Doe put on her clothes. She then stated she wanted to hang out with them. A little while later, at approximately 7:00 p.m., they agreed to leave together. Defendant went back home and Brown accompanied Jane Doe a little further, where she told him she was going to go to her uncle’s house. She was not upset.

Jane Doe reported she had been raped and was taken to the hospital for an examination. She did not appear upset or excited to officers responding to the call; she seemed indifferent. At the hospital, a sexual assault nurse examiner conducted the rape exam, finding two vaginal injuries, an abrasion and a tear; the tear was bleeding. The injuries were consistent with blunt force trauma of a penis as well as a sharp fingernail with very little force, and there were no external injuries.

The amended information charged defendant and Brown with one count of rape (§ 261, subd. (a)(2)), with an allegation that the two defendants committed the act in concert (§ 264.1). Count two alleged Brown had committed forced oral copulation (§ 288a, subd. (d)), and count three charged defendant with attempted oral copulation (§§ 288a, 664). Following a trial by jury, both defendants were acquitted of counts two and three, the oral copulation counts. As to count 1, both defendants were convicted of the lesser included offense of battery, in violation of section 242, upon acquittal of the more serious charge of rape in concert. Both defendants were placed on probation conditioned upon spending 90 days in local custody, to be served on weekends.

Defendant appealed.

Discussion

At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. First, we observe there is substantial evidence to support the conviction of the lesser included offense of battery. The least touching may constitute battery. (People v. Longoria (1995) 34 Cal.App.4th 12, 16.) As a reviewing court, we review the entire record to determine whether it contains substantial evidence to support the verdict. However, a reviewing court neither reweighs evidence nor reevaluates a witness’s credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27, citing People v. Guerra (2006) 37 Cal.4th 1067, 1129.)

We have also reviewed the probationary terms and determine that the trial court did not abuse its discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379-381.)

We have completed our independent review of the record and find no arguable issues.

Disposition

The judgment is affirmed.

We concur: McKINSTER J., RICHLI J.


Summaries of

People v. Holland

California Court of Appeals, Fourth District, Second Division
Apr 3, 2009
No. E045846 (Cal. Ct. App. Apr. 3, 2009)
Case details for

People v. Holland

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DEJUAN HOLLAND, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 3, 2009

Citations

No. E045846 (Cal. Ct. App. Apr. 3, 2009)