Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR023584
ROBIE, J.
A jury found defendant Terrence Dewayne Jemison guilty of unlawful sexual intercourse with a minor more than three years younger than himself. The trial court suspended imposition of sentence and placed defendant on formal probation for three years with conditions.
On appeal, defendant contends the trial court erred by not giving a jury instruction on the lesser included offense of attempted unlawful sexual intercourse. The People assert the evidence of attempted unlawful sexual intercourse was not substantial enough to require the court to give a jury instruction on that offense. We agree with the People’s argument and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. B. lived with her aunt (T. T.), uncle, and cousins. On the night of July 26, 2006, when A. B. was 16 and defendant was 31, T. T. witnessed A. B. climbing in through A. B.’s bedroom window “scantily clad” with her “breasts . . . showing.” T. T. ran out the front door to find out who had been outside with A. B. and saw a figure leaving in the direction of defendant’s house. She immediately called defendant’s house to see if he was there, but his son answered and said defendant was outside. T. T. called the police.
Deputy Sheriffs Carol Growdon and Mike Carney arrived after T. T. called 911. First they questioned A. B. outside of her house for about two hours. Eventually, A. B. admitted she “snuck [defendant] on a camping trip” and they had sex twice while camping. She also claimed she was in a relationship with defendant. A. B. later admitted to “start[ing]” to have sex with defendant at T. T.’s house a few days before T. T. called the police. She elaborated that defendant penetrated her vagina at that time.
The officers next interviewed defendant, who eventually admitted to having sex with A. B. two times on the camping trip. He also admitted to “start[ing] to” have sex with A. B. a few days before her aunt called the police.
Both of these interviews were recorded on the scene, and Deputy Sheriff Carol Growdon testified to the accuracy of the tapes and the transcripts submitted as evidence.
At trial, A. B. testified that the interviewing officers pressured her into saying that she had sex with defendant. She stated that she lied at the interview, and she denied ever kissing or having intercourse with defendant. Defendant did not testify.
Defendant was convicted of unlawful sexual intercourse with a minor based on the incident that occurred a few days before T. T. called the police, in which both the victim and defendant claimed they “started to” have sex.
DISCUSSION
Defendant contends the trial court erred by not instructing the jury on the lesser included offense of attempted unlawful sexual intercourse. Since A. B. testified that she did not tell the deputies the truth during her interview, defendant argues that a reasonable jury could have found defendant guilty of the lesser included offense based on the conflicting evidence.
“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “[S]uch instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (Ibid., quoting People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) Substantial evidence is “evidence that a reasonable jury could find persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
The charged crime here was unlawful sexual intercourse, which requires “any sexual penetration, however slight.” (See Pen. Code, § 263.) By analogy to the law relating to rape, attempted unlawful sexual intercourse is a lesser included offense of the crime of unlawful sexual intercourse. (See People v. Atkins (2001) 25 Cal.4th 76, 88.) “An attempt to commit a crime has two elements: the intent to commit the crime and a direct ineffectual act done toward its commission. The act must not be mere preparation but must be a direct movement after the preparation that would have accomplished the crime if not frustrated by extraneous circumstances.” (People v. Carpenter (1997) 15 Cal.4th 312, 387.)
This section expressly applies to forcible rape (Pen. Code, § 261), but the People “can discern no rational reason to take issue with [defendant’s] assertion that section 263 is applicable to the offense of [unlawful sexual intercourse (Pen. Code, § 261.5)],” nor can we.
The issue here is whether there was substantial evidence from which the jury reasonably could have found that defendant performed a direct act toward the commission of intercourse with A. B., but no penetration, however slight, occurred. Defendant suggests that such evidence can be found in his statement to the deputies, in which he told them that “he ‘started’ to put his penis inside her vagina but stopped.” According to defendant, “This was evidence that no penetration occurred.” We disagree.
The relevant portion of defendant’s statement to the deputies is as follows:
“Q: [W]hat, did you guys start havin’ sex in the front or what?
“A: (Unintelligible) we didn’t have sex, nothin’ like that, but we started- we started to.
“Q: Started to have sex?
“A: (Unintelligible), yeah, and (unintelligible).
“Q: But you didn’t?
“Q1: Did you put your penis in her vagina and go at it for a little while?
“A: I started to (unintelligible).
“Q: Was it just kinda weird ‘cause you were outside, people in the neighborhood or what?
“A: (Unintelligible).
“Q: Yeah.
“A: Yeah.
“Q: I understand. So how long do you think you guys were goin’ at it for before you decided to stop?
“A: Wasn’t even a whole minute.
“Q: Not even a minute?
“A: No.
“Q: Okay. Was she okay with you stoppin’?
“A: I don’t know. She didn’t say nothin’. I just stopped.”
Contrary to defendant’s argument on appeal, he did not tell the deputies that “he ‘started’ to put his penis inside [A. B.’s] vagina but stopped” before he did so. Rather, he first said that he “started to” have sex with her. Then, when one of the deputies asked, “Did you put your penis in her vagina and go at it for a little while,” defendant again said, “I started to.” In response to further questioning, defendant told the deputies he and A. B. were “goin’ at it” for some time less than a minute before he decided to stop.
Viewing the relevant portion of defendant’s statement as a whole, we do not find substantial evidence that defendant performed a direct act toward the commission of intercourse with A. B., but stopped before any penetration occurred. What defendant meant by what he told the officers is far from clear. What is clear, however, is that defendant did not describe any particular act or acts that he engaged in that a reasonable jury could have found to constitute a direct but ineffectual act toward, but short of, sexual penetration. Under these circumstances, defendant’s vague assertions that he either: (1) “started to” have sex with A. B.; (2) “started to” put his penis in her vagina; or (3) “started to” go at it with her, could not have persuaded a reasonable jury that defendant committed only the lesser crime of attempted unlawful sexual intercourse.
When determining whether there is substantial evidence of a lesser offense, we are not allowed to evaluate the credibility of witnesses (People v. Breverman, supra,19 Cal.4th at p. 162), but we must still examine the entire record to determine whether a reasonable jury would find the evidence persuasive enough to find for the lesser included offense rather than the greater offense. When considered in its entirety, defendant’s statement to the deputies could not have persuaded a reasonable jury that he only attempted to have intercourse with A. B.
As for A. B.’s trial testimony, she not only denied ever having sex with defendant, but she also denied the truth of any of her admissions of physical contact with defendant. Obviously this evidence did not warrant an instruction on the lesser included offense of attempted unlawful sexual intercourse because it did not satisfy any of the elements of that offense. Since her testimony could not have persuaded a jury that defendant committed the lesser included offense, this evidence provided no basis for the lesser included offense instruction.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., BUTZ, J.