Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF063291, Roger A. Luebs, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jacob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant Ceddrick Lennell Robinson II guilty of one count of assault with the intent to commit a rape (Pen. Code, § 220) (count 1); two counts of assault (§ 240) (counts 2 & 4); and one count of simple battery upon a peace officer (§ 243, subd. (b)) (count 3). Defendant was placed on three years’ formal probation on various terms and conditions. Defendant’s sole contention on appeal is that there was insufficient evidence to sustain his conviction for count 1. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
Around 5:00 a.m., on August 26, 2008, 14-year-old B.P. was watching television with her older stepsister K.M. and younger stepsister D.M., at her stepmother A.P.’s apartment in Cathedral City. Meanwhile, A.P. and the girls’ grandmother were asleep in their bedroom. Defendant also resided in the apartment. The girls and A.P. considered defendant to be a friend. Even though defendant and A.P. never had a sexual relationship, they had “flirted and kissed” in the past.
While the girls were watching television, defendant knocked on the front door of the apartment twice, and then yelled, “‘Open the door.’” B.P. opened the door. Defendant came into the apartment, went into the living room, sat down, and started mumbling. B.P. thought defendant was acting unusual. K.M. thought defendant was acting odd as well, but believed defendant was “playing around.” K.M. described defendant’s eyes as “popping and red,” and she observed that “he was sweating a lot.” Defendant commented about white people, and told B.P., who is white, “‘You’re white, you’re white, white trash.’” B.P. told defendant to shut up. Defendant responded by pushing B.P. down and placing his hands at the base of her throat and on the side of her waist. B.P. began to scream and tried unsuccessfully to get defendant off of her. Defendant continued to push B.P. down while saying, “we’re friends, we’re friends.”
K.M. went to get her mother A.P. A.P. was awakened by someone screaming. When K.M. came into her bedroom, A.P. got up and went into the living room where she saw defendant leaning over B.P. on the couch and holding her down. A.P. pulled defendant off B.P. and asked him what was going on. Defendant then began wrestling with A.P. and mumbling something. Defendant was “bear hugging” A.P. A.P. unsuccessfully tried to push defendant off of her, and she told him to get off of her and leave her alone. She did not want defendant to touch her. A.P. attempted to calm defendant down, but he told A.P. that “he wasn’t getting any.”
Defendant let go of A.P. after the landlord came to the door because of the commotion. The landlord left after defendant “scared her off.” A.P. told her children to go to the bedroom. Everyone was screaming, and her youngest daughter was crying and hysterical.
Once the landlord left, defendant came and sat down next to A.P. A.P. asked defendant, “Tell me what is going on, what is wrong. Why are you behaving like this?” A.P. testified that “[defendant] said what was wrong with him [was that] he wants some pussy, that is what he wants.” B.P. and K.M. heard defendant say, “‘I want pussy’” or “I need some pussy.” K.M. also heard defendant say that he had not been “getting any.” A.P. did not want to have intercourse with defendant. She did not give him permission to have sexual intercourse with her.
Defendant and A.P. then stood up. Defendant lunged toward A.P. and gave her another bear hug; A.P. tried to push him off. B.P., K.M., and A.P.’s mother unsuccessfully tried to pull defendant off of A.P. Defendant pushed A.P.’s mother and knocked her against the wall. Defendant let go of A.P. and apologized to A.P.’s mother. A.P. then tried to call the police, and she told her daughters to go outside because she did not want them to get hurt and wanted them to wait for the police. Defendant asked her not to call the police and apologized to her. Defendant said he “needed girls” and tried “to push [A.P.] into his room.” He tried kissing A.P; she told him to stop.
As A.P. struggled with defendant, the two fell. A.P. fell on top of defendant, and defendant held onto her. However, A.P. was able to grab her cellular telephone and call 911. Defendant eventually let go of A.P. and began “hitting [A.P.’s] legs and chest saying he [did not] give a fuck.” A.P. got off of defendant and made contact with the 911 operator. At that time, defendant grabbed A.P., started crying, and said he was sorry.
Shortly thereafter, Cathedral City Police Officer Nunez arrived. As he was walking to the apartment, Officer Nunez heard a female scream, “‘Stop,’ and... smashing sounds, things breaking.” As the officer entered the apartment, A.P. and her mother came running out. A.P. and her mother were crying and appeared to be afraid. While Officer Nunez remained in the doorway to wait for additional officers, he saw defendant run from the living room area into a hallway and then lost sight of him. Once additional officers arrived, defendant charged at Officer Nunez with both fists clenched. Defendant failed to stop when ordered to do so by Officer Nunez and continued to advance at the officer. Officer Nunez then deployed his Taser gun, but defendant continued to advance and hit Officer Nunez in the chin. The Taser gun had no effect on defendant, and defendant continued to hit Officer Nunez. Defendant was eventually subdued and arrested with the assistance of additional officers.
A.P. believed defendant was “on something,” because of his behavior and demeanor. She explained that he was acting irrational and unlike himself. Officer Nunez thought defendant “wasn’t there.” He elaborated that defendant appeared “real sweaty” and “real hyped up.”
Prior to trial, licensed psychologist William Jones, Ph.D., reviewed the records in this case, interviewed defendant, and conducted a psychological test of defendant. Dr. Jones testified on defendant’s behalf and concluded defendant suffered from a “mental defect” or “psychotic disorder” (“not otherwise specified”) at the time of the incident in this case. Dr. Jones asserted that the witness statements, the police report, the preliminary hearing transcript, and a drug test of defendant showing a presence of marijuana supported his conclusion. Dr. Jones explained that defendant showed signs of paranoid thinking, and his thoughts and communications were “jumbled up.” In addition, at the time Dr. Jones interviewed defendant, defendant spoke about purportedly being followed by a car with men in it, and how defendant thought the people in the apartment were conspiring with these men to do him harm. Dr. Jones further believed that it was “quite possible” for a psychotic person to act out aggressively toward others in an attempt to communicate, and that defendant was delusional and confused at the time of the incident.
No other drugs, such as methamphetamine, cocaine, or heroin, were found in defendant’s system.
However, on cross-examination, Dr. Jones admitted that he did not see any indications of mental illness in defendant’s family. He also acknowledged that defendant had never had any sort of mental illness prior to this incident. Dr. Jones further admitted that defendant never told him that he heard voices, saw things, or had experienced any paranoia prior to this incident. Dr. Jones also acknowledged that defendant was able to hold a job, rent an apartment, articulate his thought process, and be goal-oriented prior to the events leading up to the crimes. Dr. Jones also admitted that if an individual pulled another person toward their bedroom after telling them, “‘Come on. That’s all I need is some pussy,’” that could be an indication the person is trying to achieve the goal of fulfilling a sexual desire. Dr. Jones further stated that it was conceivable defendant experienced sexual desire during the incident, regardless of whether defendant perceived the circumstances to be consensual or nonconsensual.
II
DISCUSSION
Defendant contends there was insufficient evidence as a matter of law to support the finding that he intended to rape A.P. against her will. He points out that his conduct and statements reflect “a mere desire for sex, and not the intent to both obtain sex by whatever force was required....” He notes that he had a prior kissing and flirting relationship with A.P., the assaults upon others in the apartment were nonsexual in nature, he never touched A.P.’s breasts, crotch, or buttocks, and the evidence showed he suffered from a mental illness during the incident.
It is true that an assault to commit rape requires an intent to have sexual intercourse and to use force to overcome the victim’s resistance. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597 (Craig).) But defendant gives short shrift to the deferential scope of appellate review of a substantial evidence challenge. We remain constrained by the well-known principle that we must review the whole record in the light most favorable to the jury verdict to determine whether there is any reasonable and credible evidence of solid value such that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357; People v. Johnson (1980) 26 Cal.3d 557, 578.) While engaging in this review, we must presume the existence of every fact the jurors could reasonably deduce from the evidence. (People v. Davis (1995) 10 Cal.4th 463, 509 (Davis).) We are not permitted to reweigh the evidence, reappraise the credibility of witnesses or resolve factual conflicts, as these are functions reserved for the trier of fact. (Craig, supra, 25 Cal.App.4th at p. 1597.)
“Assault with intent to commit forcible rape requires an intent to and an unlawful attempt to have sexual intercourse by force, violence or fear of bodily injury, without consent of the victim. [Citations.] The only intent required for the crime of rape itself is the intent to do the proscribed act. [Citations.]” (People v. Dixon (1999) 75 Cal.App.4th 935, 942-943.) Whether the requisite intent existed is one for the jury to determine from the defendant’s conduct, including any words the defendant has spoken, and the surrounding circumstances. (People v. Bradley (1993) 15 Cal.App.4th 1144, 1154, disagreed with on another ground in People v. Rayford (1994) 9 Cal.4th 1, 21.)
Here, there was sufficient evidence for the jury to determine defendant had the specific intent to commit rape. After A.P. intervened in defendant’s assault on B.P., defendant began wrestling with A.P. and “bear hugging” her. A.P. tried unsuccessfully to push defendant off of her and calm him down. He exclaimed that “he wasn’t getting any.” Defendant let go of A.P. at one point when the landlord came to stop the commotion. However, once the landlord left, defendant came and sat next to A.P. and stated he wanted “some pussy.” When defendant and A.P. stood up, defendant accosted A.P. again. Although B.P., K.M., and A.P.’s mother attempted to push defendant off of A.P., defendant did not let go of A.P. Defendant said he “needed girls” and was pulling A.P. into his bedroom. He tried kissing A.P., and she told him to stop. As A.P. struggled with defendant to prevent him from taking her into his bedroom, the two fell with A.P. on top of defendant. Defendant held A.P. and would not let her go. These actions were sufficient for the jury to find that defendant intended to complete an act of sexual intercourse by force.
Defendant claims this case is analogous to People v. Greene (1973) 34 Cal.App.3d 622 (Greene), and appears to suggest that under Greene, where the defendant does not make a specific sexual overture, the prosecutor does not establish the specific intent to commit rape.
We agree with defendant that the victim’s subjective fear is not dispositive, nor alone would her fear constitute substantial evidence of his intent. (Greene, supra, 34 Cal.App.3d at p. 651.) But we do not find the facts of Greene analogous. In Greene, the defendant, who was then 18 or 19 years old, approached his 16-year-old victim, put his arm around her waist, and told her not to be afraid, he had a gun, and not to move. (Id. at p. 629.) The victim felt something hard against her right side, but did not look to see if it was a gun or something else. At the defendant’s request, the victim put her arm around his waist and the two began walking. The victim asked the defendant what he wanted. He replied, “‘I just want to play with you.’” (Id. at p. 650.) As they walked, the defendant moved his hand up and down the victim’s waistline. After a few minutes, the victim broke from the defendant’s embrace without a struggle and ran to a friend’s home. (Ibid.) A jury found the defendant guilty of assault with intent to commit rape. (Id. at p. 627.)
The appellate court concluded there was insufficient evidence to support the jury’s finding of assault with intent to commit rape. The court noted the defendant did not attempt to disarrange the victim’s clothing, nor did he expose himself to her. (Greene, supra, 34 Cal.App.3d at pp. 650, 656.) The victim feared the defendant meant to rape her, but “[h]er unexpressed subjective evaluation of the situation cannot make an assault with intent to commit rape out of a simple touching which objectively can only be attributed to attempted seduction, or an attempt to secure the satisfaction of some unnatural or abnormal sexual interest, short of actual sexual intercourse.” (Id. at p. 651.)
The Greene court also contrasted the facts before it with those of cases in which the defendant was found to have committed an assault with intent to commit rape. In the cited cases, the defendants engaged in behaviors such as fondling the victim’s private parts, entering a woman’s bedroom and covering her mouth without any attempt to take property, and knocking the victim down and repeatedly pulling up her dress. (Greene, supra, 34 Cal.App.3d at p. 652, fn. 8, citing People v. Bard (1968) 70 Cal.2d 3; People v. Elder (1969) 274 Cal.App.2d 381; People v. Nye (1951) 38 Cal.2d 34; People v. Clifton (1967) 248 Cal.App.2d 126; People v. Peckham (1965) 232 Cal.App.2d 163; and People v. Woods (1946) 75 Cal.App.2d 246.)
Here, the facts are less ambiguous than those in Greene. While in Greene the defendant merely ran his hand along the victim’s waist, in this case, defendant accosted A.P. several times. He gave her a bear hug, struggled with her, tried to kiss her, tried to force her into his bedroom, and held her to the ground. The defendant in Greene told the victim he only wanted to “play with her,” but, here, defendant told A.P. he wanted some “pussy,” that he had not been “getting any,” and that he “needed girls.” Contrary to defendant’s contention, these statements are less amenable to characterization as “attempted seduction,” or an attempt to satisfy an abnormal sexual interest. In Greene, the defendant let the victim break free and run away without a struggle. In this case, defendant pinned A.P. several times and refused to release her until she was able to call the police. The facts presented in this case allowed an inference that defendant possessed the requisite specific intent.
In Craig, supra, 25 Cal.App.4th at page 1604, the Court of Appeal found the evidence did establish the requisite intent to commit rape. In that case, the defendant followed the victim as she drove home, and when she pulled into her driveway, he approached her and apologized for mistaking her for someone else. After she got out of her car, he confronted her, grabbed her hair, pushed her back into the driver’s seat, and shoved his hand inside her sweater, touching her breasts outside her bra. The assault ended when the victim’s roommate came to her aid. (Id. at pp. 1595-1596.) The Craig court distinguished Greene because the defendant’s remarks and conduct were consistent with an assault that was not intended to lead to a rape. (Craig, at p. 1600.) In contrast, the Craig court noted that the defendant “made no statements suggesting that his intent was to commit rape or that it was not.” (Id. at p. 1599.) In addition, the Craig court found the physical act evidence stronger than in Greene. (Craig, at p. 1600.) The Craig court concluded that the totality of the circumstances established assault with the specific intent to commit rape. “All of [the defendant’s] conduct was consistent with that intent. Nothing he did or said indicated that he intended only to place his hands on her body or to accomplish some sexual act short of or different from intercourse. While other reasonable inferences also might be drawn, it was for the jury, not us, to draw them.” (Id. at p. 1604.)
Although defendant’s conduct here was not as overtly sexual as in Craig (i.e., evidence suggesting defendant had touched the victim’s breasts, vagina, or buttocks), defendant’s conduct was nevertheless unambiguous. Defendant accosted A.P. telling her he wanted “pussy.” He struggled with her and restrained her despite her forceful resistance. He refused to let go of her even after her mother and daughters tried to intervene. In addition, he tried to kiss her and force her into his bedroom. There is absolutely no other indication of another motive for his attack. Thus, a rational juror could conclude that defendant did intend to rape A.P. He gave no indication, as in Greene, of another explanation for his aggressive behavior. While he did not have the opportunity to penetrate the victim, the crime is complete if at “‘any moment during the assault the accused intends to use whatever force may be required’” to have sexual intercourse. (Davis, supra, 10 Cal.4th at p. 509.) There is no question he applied the requisite force, and we must conclude on this record that it was the jurors’ prerogative to infer the requisite intent from his use of force, coupled with his continual struggle with the victim and refusal to let go of the victim.
Nonetheless, predominately relying on People v. Mullen (1941) 45 Cal.App.2d 297 (Mullen) and People v. Puckett (1975) 44 Cal.App.3d 607 (Puckett), defendant at length argues that the evidence here suggests merely that he had a desire for sex rather than an intent to force A.P. to have sex. We find defendant’s reliance on Mullen misplaced. Several appellate courts have disagreed with and criticized Mullen. (See, e.g., People v. Trotter (1984) 160 Cal.App.3d 1217, 1223 (Trotter) [“The first problem with the holding in Mullen has been addressed by other courts. ‘[To] the extent that [Mullen] impels proof that the offender must indicate a resolve to use all of his force to commit rape notwithstanding all possible resistance it is no longer followed.’ (People v. Hood (1962) 199 Cal.App.2d 44; Greene, supra, at p. 651, fn. 7, and cases cited therein”].)
In addition, as the Trotter court noted, “The bigger problem in our view, however, is that the Mullen court misstated the law regarding ‘abandonment.’ The court held that ‘[whatever] the extent and however rough the fondling of the woman, if her pursuer without fear of interruption voluntarily abandons his endeavor to ravish her sexual organs, then the force he employed was not an assault with intent to commit rape.’ [Citation.] That was not the law in 1941 when Mullen was decided [citations], and it is not the law now [citations]. If, at any point during the incident, [a] defendant entertains the intent to have sexual intercourse with [a] victim by force, the crime of assault with intent to commit rape is complete. It makes no difference whatsoever that [the defendant] later abandons that intent.” (Trotter, supra, 160 Cal.App.3d at pp. 1223-1224.) We agree with the reasoning in Trotter and, likewise, disagree with the holding in Mullen.
Furthermore, the facts of this case are distinguishable from that of Puckett. In that case, the defendant drove behind the victim’s car, flashing his headlights, and following her home. When she reached her home, she ran into the house. The defendant ran after her, trying to keep her from closing the door. When the victim’s mother came to her aid, the defendant fled. (Puckett, supra, 44 Cal.App.3d at p. 610.) The Puckett court found the evidence insufficient to establish an intent to commit rape. (Id. at p. 613-614.) The facts in this case are clearly distinguishable. Defendant here accosted A.P. and said he wanted “pussy.” He struggled with her, restrained her, and tried to kiss her and force her into his bedroom.
Defendant suggests that his physical appearance and demeanor as described by the witnesses, and the expert testimony of Dr. Jones, all demonstrate that he was suffering from a mental instability at the time of the incident. However, this was a credibility issue to be resolved by the trier of fact. (Craig, supra, 25 Cal.App.4th at p. 1597.) The jury rejected defendant’s claim that he was suffering from a mental disorder at the time of the incident. As a result, we must draw those inferences in support of the jury’s factual findings that defendant intended to have sexual intercourse with A.P.
Defendant also highlights that he and the victim had previously flirted and kissed and that he stopped his assault on A.P. “when faced with the fact of her resistance....” Even though defendant and A.P. had flirted and kissed in the past, it does not negate the evidence that A.P. resisted defendant and others tried to stop defendant, yet he continued to accost A.P., kiss her, force her into his bedroom, hold her after she fell on top of him, and make sexualized statements. “Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal. [Citation.]” (People v. Zamudio, supra, 43 Cal.4th at p. 358.) Simply put, there is sufficient evidence to support the conviction that defendant assaulted A.P. with the intent to commit rape.
II
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J.MILLER J.