Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA095985 Gary E. Daigh, Judge.
Ronald White, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury convicted defendant Steven Perkins of three felonies against T.H.—assault with intent to commit rape (Pen. Code, § 220, subd. (a)), making criminal threats (§ 422), and inflicting corporal injury to his child’s parent (§ 273.5, subd. (a))—and three felonies against M.A.—assault with intent to commit oral copulation (§ 220, subd. (a)), forcible rape (§ 261, subd. (a)(2)), and false imprisonment by violence (§ 236). The trial court imposed a total sentence of 21 years 8 months in state prison.
All further statutory citations are to the Penal Code.
The jury found defendant not guilty of resisting an executive officer (§ 69). The charge of assault with a deadly weapon against M.A. was dismissed in the interest of justice.
In his timely appeal, defendant contends there was constitutionally insufficient evidence to support his convictions. We affirm.
STATEMENT OF FACTS
The T.H. Incident
Defendant met T.H. in 2006 or 2007, and fathered a child with her. As of March 8, 2008, they were still “in a relationship.” He lived with his mother and grandmother on South White Street in Los Angeles. T.H. lived a few blocks away from his residence. At approximately 1:00 a.m., T.H. received a telephone call from defendant, asking her to come to his residence to retrieve her belongings. He accused her of being unfaithful to him, and they argued. When they were alone in his bedroom, defendant grabbed T.H. and pulled her pants down below her knees. She pulled them back up. He pushed her through the bathroom and into the garage. Defendant covered her mouth and nose with one hand, while he painfully squeezed her vagina (over her pants) with the other hand. He told her to stop screaming or he would kill her. She tried to escape from his grasp. During the altercation, she suffered a “busted” lip.
As the struggle continued, defendant pushed T.H. back into his bedroom. Defendant’s mother and grandmother entered the room and separated defendant and T.H. She retreated to another bedroom and locked the door in fear of defendant. Defendant left the residence through the garage. T.H. drove home, called the 9-1-1 operator, and reported the incident. She told the operator that defendant beat her up and tried to rape her. At trial, however, she sought to minimize the severity of his attack. She considered defendant a good person and did not want him to go to jail.
Rosie Thomas, defendant’s grandmother, testified that she heard T.H. repeat, “Stop Steve,” but there was no yelling. She asked them why they were making so much noise and told them to “stop hollering,” before helping her daughter pull them apart. Defendant left the house a few minutes later.
Sheriff’s Deputy Abi Ben-Sahile interviewed T.H. shortly after the incident. T.H. named defendant as the person who assaulted her by grabbing her shoulder, pushing her to the ground, and punching her. According to T.H., defendant told her during the incident, “You better give me some pussy.” He held his hand over her nose and mouth, causing her to gasp for breath and making her think she would lose consciousness. She feared defendant would kill her. The deputy saw that T.H.’s lip had been cut. Rosie Thomas told Deputy Ben-Sahile that when she entered defendant’s bedroom, she saw T.H. lying on the floor with defendant straddling her.
The M.A. Incident
Defendant’s second victim, M.A., had been previously convicted of prostitution and was in custody with five cases pending against her for a variety of drug and prostitution offenses, and for possessing a dirk or dagger. The prosecution had not made any promises to her in exchange for her testimony.
On March 9, 2008, she saw defendant exit a van in front of her house on Harris Street. The back house was a location for buying drugs; M.A. had purchased some drugs earlier that night. The van was driven by a female who remained inside. Before getting back into the van and driving away, defendant asked M.A. if she remembered him. She did—defendant had recently cheated her by selling fake drugs. The same female returned with defendant in the van 30 to 45 minutes later. M.A., who was sitting on the front porch, saw defendant walk down the driveway to the back house, where he stayed for 10 to 15 minutes. When he returned, he asked M.A. if she “wanted to go with him.” She agreed and got into the van with defendant.
The female drove them to defendant’s residence. M.A. followed defendant as he walked to the garage behind the residence. They went inside, where she smoked her crack cocaine in a pipe, while defendant rolled his own Primo (a cigarette of crack cocaine and marijuana) and smoked it. When defendant finished his Primo, he took M.A.’s pipe and took a “hit.” Suddenly, defendant “snapped” and “[h]is whole personality changed.” Using a threatening tone, he called her a “bitch,” ordered her to remove her clothes and wig, and to orally copulate him. She did as ordered, but when she began the sex act, he slapped her, and told her to stop and put her clothes back on. Once she got dressed, he demanded she undress and orally copulate him. Twice again, however, while she performed the sex act, he slapped her and told her to stop. She repeatedly asked to leave, but he said he would “fuck [her] up” if she did.
Defendant’s mother came to the door on the side of the garage. Defendant left M.A. in the corner of the garage and spoke to his mother. In the meantime, M.A. put her shirt on and “tried to slip under the garage door.” Defendant grabbed her hair and thigh, but she managed to get out and run screaming down the alley. Defendant caught her half-way down the alley. He grabbed her, put his hand over her mouth, and told her to return to the garage. When she refused, he told her, “let’s just do it right here then.” She was wearing only her shirt. Defendant put on a condom and penetrated her vagina from behind for approximately five minutes, while he held her by the hair with one hand. Defendant gave her no money and no drugs in exchange for sex.
M.A. ran away down the alley and hailed a passing police car. She told the two officers she had been raped, described defendant, and directed them to defendant’s house. When they arrived, defendant had already been placed in the backseat of a patrol car in front of his house. The officers offered to take her to the hospital for a rape examination, but she refused because she knew there were warrants for her arrest and she feared going to jail. On the night before the incident, she was arrested on an unrelated matter and held overnight in the Lynwood jail.
Deputy Ben-Sahile and his partner responded to the scene in response to reports that a woman was screaming. When M.A. approached the patrol car, she was wearing only a shirt. Shortly afterwards, they located defendant, who was walking southbound on White Street, wearing black pants and no shirt. When defendant saw the patrol car, he turned and ran away. Deputy Ben-Sahile detained defendant as he attempted to enter his house. Defendant became “extremely combative.” After a struggle, defendant was subdued when another deputy “Tased” defendant. Other deputies brought M.A. to the scene, where she identified defendant as her rapist. The deputy went to defendant’s garage and found her wig, pants, and cocaine pipe. M.A. directed the deputy to the alley, where he recovered a used condom on the ground.
Defense Case
Deputy Bradd Molner attempted to contact M.A. at the address on Harris Street she had given to the police, but was told she did not live there.
Tonya Thomas, defendant’s mother, testified that on the night of March 9, 2008, she drove defendant in her gray van to a location on Harris Street because her son did not drive. The location was three blocks away. She knew he was going there to get drugs. He returned to the van in less than 10 minutes with an African-American woman. She dropped them off at a location on San Vicente Boulevard, about a block from her residence where she, her mother, and defendant lived. Tonya Thomas drove home and went to bed. Later that night, she answered the doorbell. Defendant was on the porch and approximately eight police officers were approaching. The officers detained defendant on the curb in front of the house for approximately 45 minutes. The sergeant asked if defendant was “under the influence of anything,” and she said he was. They eventually drove away with defendant.
Rosie Thomas testified that on March 9, she heard voices coming from the garage. She got out of bed and went to investigate. On the way, she heard a female voice. Rosie Thomas told defendant that he “better not have nobody in this house.” The female voice replied, “Ma’am, we’re not doing nothing.” Defendant was standing inside the garage doorway with the door partially ajar. Rosie Thomas was able to see a woman sitting on a chair. Rosie Thomas told her to leave and told her grandson to go to bed. She left them and went back to bed herself. Later that night, her daughter told her to come to the front of the house. Through the window, she saw two officers arresting defendant.
Defendant testified on his own behalf. He admitted a prior conviction in 2006 for possession of cocaine base with intent to sell. With regard to the March 9 incident, defendant said that his mother drove him to the Harris Street location in the gray van to buy crack cocaine. He saw M.A. there. Approximately two months ago, he had met her on the corner of Long Beach Boulevard and Compton Boulevard. She performed an act of oral copulation on him in exchange for what she thought was crack cocaine—in fact, however, he had deceived her by giving her “bunk” or fake drugs. On March 9, he told her that he would give her what he owed. After buying $40 to $60 of crack cocaine, he gave M.A. a “dime rock.” She accepted his invitation to come with him in the van.
M.A. had testified that she had given him money, not performed a sex act, in exchange for the fake drugs.
Defendant’s mother dropped them off on San Vicente Boulevard near White Street, and they walked to his residence and went to the garage. They smoked drugs and talked. Without any invitation, M.A. attempted to orally copulate defendant, but he stopped her. He eventually allowed her to do so, after putting on a condom. Afterwards, she disrobed and persuaded the reluctant defendant to engage in intercourse. Defendant heard his grandmother approach the garage and ask, “What are you doing?” She looked into the garage and told M.A. to leave. He and M.A. went into the alley and completed their act of intercourse. They went back for her clothes, but M.A. ran away because defendant’s pit bull scared her. Defendant returned to the house for some water and then went into the front yard to play with his dog. Suddenly, the police arrived and arrested him. He was under the influence of drugs, but did not resist the officers in any way.
With regard to the incident involving T.H., defendant testified that they had been arguing intermittently over that past few days. She drove over to his house in the early morning hours so they could “make up.” He did not rape her. They began kissing each other, but defendant put his hand over her mouth because she “started to get loud and scream for no apparent reason,” and he did not want to wake his grandmother. He “probably” threatened to kill T.H., but he was not serious about it. He was intoxicated from smoking drugs and drinking alcohol all day. His mother and grandmother entered the room and interrupted their consensual act of intercourse, which led to a “minor struggle.” Defendant never hit or kicked T.H.. He had “no idea” how her pants got ripped or how her lip was bloodied.
DISCUSSION
Defendant contends there was constitutionally insufficient evidence to support his convictions. “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that 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.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)” (People v. Rodriguez 20 Cal.4th 1, 11.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181; see In re S.C. (2006) 138 Cal.App.4th 396, 415 [recognizing “the fundamental rule that an appellate court does not reassess the credibility of witnesses or reweigh the evidence”].)
The Offenses Against T.H.
With regard to his conviction for assault with intent to commit rape, defendant argues the evidence is insufficient because at trial, T.H. recanted the statements she had made in the 9-1-1 call, effectively re-characterizing the incident as a “lover’s quarrel,” rather than a violent sexual assault. “[S]ection 220 requires not only the specific intent to commit the underlying sexual act, but a specific intent to commit that act without the consent of the victim. (See People v. Davis (1995) 10 Cal.4th 463, 509 [an ‘“essential element”’ of assault with intent to commit rape and of assault with intent to commit sodomy is ‘“the intent to commit the act against the will of the complainant”’]; People v. Soto (1977) 74 Cal.App.3d 267, 278 [‘“To support a conviction for assault with intent to commit rape, the prosecution must prove the assault and an intent on the part of defendant to use whatever force is required to complete the sexual act against the will of the victim.”’].)” (People v. Dillon (2009) 174 Cal.App.4th 1367, 1378.)
Although defendant’s appellate briefing does not identify which element he claims the prosecution failed to adequately establish, it appears he asserts a lack of substantial evidence as to his specific intent to commit the sex act without T.H.’s consent. In fact, however, there was strong evidence that defendant attempted to overcome T.H.’s will. She pulled up her pants after he pulled them down. He forced her into a more secluded place in the residence. When she told him to stop, he covered her mouth and nose, and threatened to kill her. When she tried to get free, he held her by painfully squeezing her vagina. When defendant was finally restrained by his mother and grandmother, T.H. escaped to another bedroom and locked herself inside. None of this is indicative of a consensual encounter. Moreover, the jury was entitled to credit her statements to the 9 11 operator, as well as her statement to Deputy Ben-Sahile that defendant threatened her by saying, “You better give me some pussy.” The fact that defendant used violence was corroborated by T.H.’s torn pants, lacerated lip, and Rosie Thomas’s testimony that she had to help pull defendant away from T.H. Defendant utterly fails to show T.H.’s testimony was physically impossible or inherently improbable. (See People v. Young, supra, 34 Cal.4th at p. 1181.) Instead, he improperly requests that we resolve factual inconsistencies and make credibility decisions contrary to those of the trier of fact.
Defendant’s grandmother heard T.H. tell defendant to stop.
We turn to the criminal threats conviction. “In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat-which may be ‘made verbally, in writing, or by means of an electronic communication device’—was ‘on its face and under the circumstances in which it [was] made,... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances. [Citation.]” (People v. Toledo (2001) 26 Cal.4th 221, 227-228)
Defendant asserts there was no substantial evidence to support the jury’s finding that he made the death threat with the intent that it be understood as a threat. Despite the fact that at trial T.H. recanted some of her most incriminating prior statements, the jury was entitled to believe she told the truth in her 9-1-1 statement and when interviewed by the deputy. The fact that defendant inflicted physical violence in connection with making the threats provides strong evidence that defendant intended to act on his threats, and that she had reason to fear he would do so.
Finally, as to the conviction for inflicting corporal injury on his child’s parent, defendant contends there was no substantial evidence that he directly inflicted T.H.’s injury or that it amounted to a “traumatic condition” as defined by the statute. We disagree. Section 273.5 “is violated only if corporal injury results from the ‘direct application of force on the victim by the defendant.’ [Citation.] The statute proscribes a ‘very particularized battery.’ [Citation.] The essence of any battery is the touching of the victim. [Citation.] In section 273.5, the touching must result in bodily injury.” (People v. Johnson (2007) 150 Cal.App.4th 1467, 1477.) “Subdivision (c) of section 273.5 defines ‘traumatic condition’ as ‘a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.’” (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085.) A traumatic condition can be established by bruising or redness. (Id. at pp. 1085-1086 [bruising]; People v. Wilkins (1993) 14 Cal.App.4th 761, 771 [redness].)
Section 273.5, subdivision (a) provides in part: “Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony....”
Here, it is undisputed that T.H. had no facial injury when she arrived at defendant’s house, but was bleeding from her lip immediately after they struggled. The jury was entitled to credit her statements to the 9-1-1 operator that defendant beat her up and her statement to Deputy Ben-Sahile that defendant punched her. There was no evidence that her injury resulted from anything other than a direct act of force by defendant. Accordingly, defendant’s reliance on People v. Jackson (2000) 77 Cal.App.4th 574 is misplaced. There, the evidence showed the victim sustained her injuries when she tripped over a curb while attempting to escape, and not from the defendant’s direct application of force. (Id. at pp. 576, 580.) Here, as we have shown, the inference that defendant inflicted T.H.’s injuries was very strong, and the injury to her face unquestionably qualified as a traumatic condition. (People v. Beasley, supra, 105 Cal.App.4th at pp. 1085-1086; People v. Wilkins, supra, 14 Cal.App.4th at p. 771; People v. Johnson, supra, 150 Cal.App.4th at p. 1477 [“evidence of one punch to the face resulting in a black eye would constitute a completed violation of section 273.5”].)
The Offenses Against M.A.
In attacking his conviction for assaulting M.A. with the intent to commit oral copulation, defendant argues her prior crimes and lifestyle, along with a motive to seek revenge against defendant for having sold her fake drugs, required the jury to find her testimony incredible—and to accept his testimony that their sexual encounter was entirely consensual. To the contrary, M.A.’s character was merely a factor for the jury to weigh. Her testimony established that defendant struck her repeatedly while ordering her to orally copulate him because she refused to do so by consent. Once again, defendant fails to show M.A.’s testimony was physically impossible or inherently improbable, leaving us with the uncognizable argument that we must reweigh the jury’s credibility finding. (See, e.g., People v. Young, supra, 34 Cal.4th at p. 1181).
“‘Forcible rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator against the person’s will by means of force or violence.’” (People v. Hovarter (2008) 44 Cal.4th 983, 1015, quoting People v. Guerra (2006) 37 Cal.4th 1067, 1130.) Defendant erroneously asserts there was no substantial evidence of M.A.’s lack of consent. M.A.’s testimony, which was neither impossible nor inherently improbable, showed that defendant used threats and acts of violence to accomplish his act of vaginal intercourse. Among other things, he chased her into the alley (after compelling her to disrobe and engage in demeaning sex acts) and held her by the hair to prevent her from escaping, while he penetrated her from behind. The facts that M.A. was heard screaming in the ally wearing only a shirt (her clothes, wig, and belongings abandoned in defendant’s garage) and defendant was found on the street within minutes by the police provides strong corroboration for her version of events.
“False imprisonment is defined as ‘the unlawful violation of the personal liberty of another.’ (§ 236.) If it is effected by violence, menace, fraud, or deceit, the crime is a felony.” (People v. Fernandez (1994) 26 Cal.App.4th 710, 717.) Defendant fails to offer any legal or factual basis for challenging the sufficiency of the prosecution’s case on this count. Instead, he cites to facts concerning the offenses committed against T.H. Accordingly, we summarily reject his appellate claim. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [arguments raised but not properly supported are forfeited].) Nevertheless, it could be difficult, if not impossible, to imagine an arguable basis for challenging the sufficiency of evidence as to this conviction.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.