Opinion
H035492
09-12-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH OSORIO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. F17172)
Defendant Joseph Osorio was convicted after a court trial of false imprisonment by violence (Pen. Code, § 236), criminal threats (Pen. Code, § 422), corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)), and forcible sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)). The court also found true that defendant had personally used a firearm in the commission of these offenses (Pen. Code, § 12022.5, subd. (a)).
The information had originally included special allegations under Penal Code section 667.61, but the prosecutor dismissed those allegations in exchange for defendant's agreement to waive his right to a jury trial and have a court trial. Defendant also waived his right to cross-examine the victim in exchange for "the People's agreement to limit his exposure."
The prosecution's proof consisted of a series of police reports, a 911 transcript, and three DVDs, which were introduced as evidence without objection. The sole live witness for the prosecution was a deputy sheriff.
Defendant was sentenced to 12 years in state prison. On appeal, his sole challenge is to the sufficiency of the evidence to support the sexual penetration count. He claims that there was not sufficient evidence of the requisite specific intent. We disagree and affirm the judgment.
The prosecution and the defense had stipulated in advance of the trial, with the court's agreement, to a 12-year term if defendant was convicted.
I. Standard of Review
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.) " '[T]he relevant question is 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 beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) "[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)
II. Analysis
The crime of forcible sexual penetration requires proof that the perpetrator committed "an act of sexual penetration" that was "accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ." (Pen. Code, § 289, subd. (a)(1)(A).) " 'Sexual penetration' " is statutorily defined as "the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (Pen. Code, § 289, subd. (k)(1).) Defendant's contention is directed solely at the statutory requirement that the penetration be "for the purpose of sexual arousal, gratification, or abuse." He claims that the prosecution produced no evidence that his penetration of his wife's vagina with his fingers was for such a purpose.
The prosecution's evidence established that defendant's conduct on September 24, 2008 was motivated by his discovery of his wife's e-mails to another man. These e-mails were "suggestive of an intimate relationship" between his wife and the other man. Defendant lured his wife home from work on a pretext, and he confronted her with a gun. After telling her that he was "gonna fucking rape you, you fucking whore," defendant threw her onto a futon, "tore her skirt and panties off of her body," "pointed a gun at her exposed vagina and threatened to shoot her." The gun was just "a few inches away" from her vagina. He forced her onto her stomach and threatened to sodomize her. Then, he turned her over and, while pointing the gun at her, put two of his fingers into her vagina "as far as they could go." He "wasn't violent with his fingers, he just inserted it [sic] and took them out" a few seconds later. Defendant said: "Is this his cum inside you?" Defendant smelled his fingers and "shoved them" under his wife's nose. Defendant pointed the gun at his wife's vagina and threatened to "put this gun in your cunt, inside of you and blow your fucking cunt out." His wife believed that he put his fingers in her vagina in an attempt to obtain proof of her unfaithfulness.
Defendant testified at trial that it was his wife who was trying to convince him to go into the bedroom and make love to her. He claimed that she undressed herself and him. Defendant maintained that his wife was trying "to arouse me" and "put[] my hand on her vagina." He testified: "I gave her a couple of rubs." Defendant admitted that he then placed his fingers in his wife's vagina, but he claimed that this was done "[c]onsensually." After doing so, he "got up immediately and jumped back in disgust and said 'You are lying, you are lying.' " The trial court explicitly found that defendant's wife "is credible and, [defendant], you are not . . . ."
Defendant argues that he lacked any sexual intent or any intent to injure his wife when he placed his fingers in her vagina. The leading case on this issue is People v. White (1986) 179 Cal.App.3d 193 (White). White placed his finger in the anus of his wife's infant daughter and was convicted of violating Penal Code section 289, subdivision (a). He contended that the prosecutor's argument to the jury was improper because it suggested that he could be convicted even if he lacked any sexual motivation so long as he intended to "abuse" the child. The Court of Appeal found no impropriety. "The term 'abuse' imports an intent to injure or hurt badly, not lewdness. . . . [I]t is the nature of the act that renders the abuse 'sexual' and not the motivations of the perpetrator." (White, at pp. 205-206, italics added.) Although the White court stated that "[t]he term 'abuse' imports an intent to injure or hurt badly" (White, at p. 205, italics added), the word "abuse" actually has a broader meaning. As used in Penal Code section 289, the word "abuse" means "physical maltreatment." (Merriam-Webster's Collegiate Dict. (10th ed. 1999) p. 5.) Maltreat means "to treat cruelly or roughly." (Merriam-Webster's Collegiate Dict. (10th ed. 1999) p. 705.) Thus, the word "abuse" refers to physical cruelty.
The question is therefore whether defendant's act of putting his fingers into his wife's vagina was motivated by a sexual intent or by the intent to inflict physical cruelty. Defendant correctly notes that the issue was his intent at the time he inserted his fingers into his wife's vagina, but he incorrectly suggests that evidence of his intent during the other events surrounding that act cannot be considered as circumstantial evidence of his intent at the time of the penetration. "Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) "A defendant's intent is rarely susceptible of direct proof, and may be inferred from the facts and circumstances surrounding the offense." (People v. Felix (2009) 172 Cal.App.4th 1618, 1624, italics added.)
The circumstances surrounding defendant's act of penetration included his violent removal of his wife's clothing, his threat to rape his wife, his threat to sodomize her, and his threat to place a gun in her vagina and "blow your fucking cunt out." While his actual act of penetration may not have been "violent" in and of itself, the fact that he forced two fingers into her vagina "as far as they could go" coupled with the surrounding circumstances, amply demonstrated that defendant's motivation for the penetration was to subject his wife to physical cruelty. His wife's belief that the penetration was done to obtain proof of her infidelity was not inconsistent with an intent to inflict physical cruelty and was, in any case, not determinative of defendant's intent. Substantial evidence supports the trial court's verdict.
III. Disposition
The judgment is affirmed.
Mihara, J.
WE CONCUR: Bamattre-Manoukian, Acting P. J. Lucero, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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