Opinion
D057806
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. MALON RUSS SINEGAL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD222347)
APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed.
A jury found defendant Malon Sinegal guilty of assault with intent to commit rape. (Pen. Code, § 220, subd. (a).) The court sentenced Sinegal to four years in prison and imposed various fines and fees.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Sinegal contends the evidence was insufficient to support the verdict, and the court's failure sua sponte to give a lesser included offense instruction was prejudicial error.
FACTS
On the morning of January 21, 2006, Tammie W. left her house in Imperial Beach, California, to walk along a bike path near her home. The path is in a fairly remote area, has brush on both sides, and is bordered by the bay on one side and a large open area on the inland side. The path is relatively deserted during the time Tammie took her walk.
Tammie, who stands about 5'3" and weighs about 120 pounds, was dressed in jogging pants, a tank top and sweatshirt, and was wearing a watch and a silver ring. Around 7:30 a.m., she had begun heading home when she heard someone walking quickly behind her, and she moved over to let the person pass. However, the person continued to walk behind her. She turned and said to the person (identified later as Sinegal), "Let me just move and let you go by," but he reached out and grabbed her. He pulled her toward him so she was face to face with him and tried to kiss her. He got close to her mouth and she could smell alcohol on his breath.
Tammie screamed and tried to break loose as Sinegal attempted to push her to the ground. She managed to free a hand and strike him in the face, but Sinegal threw her to the ground. He got on her back and pinned her down, and when he put his arm around her neck, she bit his hand, causing him to bleed. Sinegal then bit her on the shoulder. He tried to pull her off the path and into the brush while she struggled to stay on the path.
As they were struggling on the ground, Sinegal's cell phone fell from his pocket. Tammie grabbed the cell phone but could not unlock the keypad. Sinegal realized he had dropped his phone and held her down while trying to retrieve it. He got up, and so did Tammie, as a person (Mr. Ybarra) approached them on his bicycle. Sinegal, putting on a show for Ybarra, said, "Baby, baby, just give me the cell phone" as though he and Tammie knew each other. After Ybarra passed them, Sinegal again began to approach Tammie. As Sinegal was about to grab her arms, Tammie threw the cell phone as far as she could in the opposite direction and ran after Ybarra. Sinegal retrieved his cell phone and then left the area.
Ybarra had not initially stopped because he believed Sinegal and Tammie knew each other and were only wrestling and fooling around. However, after he passed them, he realized something was wrong and stopped. Tammie caught up with him, but Ybarra was not carrying a cell phone. They encountered Lynne Hernandez on the path and used her cell phone to call police. Hernandez testified Tammie was distraught, crying, had blood on her hands, and said she had been assaulted.
Police responded to the scene but Sinegal was gone. Police extracted DNA from Tammie's sweatshirt and entered the DNA profile into a nationwide DNA database. The sample taken from Tammie's sweatshirt matched Sinegal's DNA. Sinegal lived in Imperial Beach at the time of the attack.
ANALYSIS
A. The Substantial Evidence Challenge
Sinegal asserts the evidence is insufficient to support the jury's finding that he assaulted Tammie with the intent to rape her.
Legal Principles
When a criminal defendant challenges the sufficiency of the evidence on appeal, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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. Kraft (2000) 23 Cal.4th 978, 1053.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.)"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." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
It is for the jury to determine whether a defendant possessed the requisite intent to rape, and the jury may examine the defendant's conduct, words, and the relevant surrounding circumstances to infer the defendant's intent. (People v. Bradley (1993) 15 Cal.App.4th 1144, 1154, disapproved on other grounds by People v. Rayford (1994) 9 Cal.4th 1, 21.) Intent is rarely susceptible of direct proof and must usually be inferred from the facts and circumstances disclosed by the evidence. (People v. Holt (1997) 15 Cal.4th 619, 669.) " ' "When the evidence justifies a reasonable inference of felonious intent, the verdict may not be disturbed on appeal." ' " (People v. Cain (1995) 10 Cal.4th 1, 47.)
Analysis
We conclude there was substantial evidence from which a reasonable trier of fact could have found the requisite intent to rape beyond a reasonable doubt. First, Sinegal's assault was on a relatively small woman who was a complete stranger to him, and he maintained his attack until the combination of her resistance and the presence of a passerby interrupted his conduct. (See People v. Clifton (1967) 248 Cal.App.2d 126, 130.) Second, he attacked her in a relatively secluded area, and manifested his sexual purpose by grabbing her, pulling her to him face to face, and trying to kiss her. (See People v. Craig (1994) 25 Cal.App.4th 1593, 1600 [substantial evidence supported finding of intent to rape where assailant physically grabbed victim and commenced overt sexual conduct that could have led to further sexual conduct absent interruption of the attack].) Moreover, when she resisted, Sinegal physically struggled to move Tammie into a more secluded location, threw her face down on the ground, and got on top of her to pin her to the ground, from which a jury could have inferred Sinegal intended to engage in sexual activity while on the ground with Tammie in the more hidden location.
Finally, Sinegal did not orally demand Tammie turn over any money or property, and he did not either take or attempt to take the valuables she was wearing, which permitted the jury to infer that Sinegal's intent was not to rob Tammie but was for other purposes. As articulated by People v. Nye (1951) 38 Cal.2d 34, 37 (disapproved on other grounds by People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882), "[w]hen a strange man enters a woman's bedroom, covers her mouth with his hand, grasps her wrist while she screams and kicks, releases her when she bites his hand, and makes no effort to take any property, it is reasonable to infer that he intended to commit rape . . . ." (Italics added.)
Sinegal argues People v. Greene (1973) 34 Cal.App.3d 622 demonstrates that the evidence here was insufficient to support the jury's finding of intent to commit rape. In Greene, the defendant, who appeared to be 18 or 19 years old (id. at p. 651), 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.' " (Ibid.) As they walked, the defendant moved his hand up and down the victim's waistline "a little" but, after a few minutes, the victim broke from the defendant's embrace without a struggle and ran to a friend's home. (Ibid.) The appellate court concluded there was insufficient evidence to support the jury's finding of assault with intent to commit rape, noting the defendant did not attempt to disarrange the victim's clothing or expose himself to her. (Id. at p. 650.) The Greene court 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 defendant 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. (Id. at p. 652, fn. 8.)
Here, the facts are less ambiguous than those in Greene. Although in Greene the defendant merely ran his hand along the victim's waist briefly after expressing a desire to "play," and released the victim when she broke away without struggling and without pursuing her, in this case Sinegal accosted Tammie, forcibly tried to kiss her, grappled with her when she resisted, struggled to move her to a more secluded location, and held her to the ground.
In People v. Craig, supra, 25 Cal.App.4th 1593, the court found the evidence did establish the requisite intent to commit rape. There, 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 in Greene were consistent with an assault not intended to lead to a rape, while in contrast, the Craig court noted that the defendant in Craig "made no statements suggesting that his intent was to commit rape or that it was not." (Craig, at p. 1599.) In addition, the Craig court found the physical act evidence stronger than in Greene (Craig, at pp. 1599-1600), and concluded the totality of the circumstances supported the finding that the assault was accompanied by the specific intent to commit rape, stating, "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 Sinegal'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), Sinegal's conduct was nevertheless unambiguous: he followed and then accosted her, struggled with her and restrained her despite her forceful resistance, tried to kiss her and to force her into a more secluded location, and there is no evidence of another motive for his attack. A rational juror could conclude Sinegal did intend to rape Tammie, because he gave no suggestion (as in Greene) of another explanation for his aggressive behavior, and "[w]hile other reasonable inferences also might be drawn, it was for the jury, not us, to draw them." (People v. Craig, supra, 25 Cal.App.4th at p. 1604.).
B. The Instructional Challenge
Sinegal asserts the court was obligated sua sponte to instruct on the lesser included offense of simple assault, and that the error was prejudicial.
Legal Principles
In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) "The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given." (People v. Sedeno (1974) 10 Cal.3d 703, 716, fn. omitted, disapproved on other grounds by Breverman, at pp. 149, 165; People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) A lesser offense is necessarily included in the charged offense if it meets either the " 'elements' test" or the " 'accusatory pleading' test." (People v. Lopez (1998) 19 Cal.4th 282, 288.) "Under the 'elements' test, we look strictly to the statutory elements, not to the specific facts of a given case. [Citation.] We inquire whether all the statutory elements of the lesser offense are included within those of the greater offense." (People v. Ramirez (2009) 45 Cal.4th 980, 985.)
Sinegal contends, and the People concede, that simple assault is a lesser included offense to the charged offense of assault with intent to commit rape. (See People v. Elam (2001) 91 Cal.App.4th 298, 308.) Although a court has no duty sua sponte to instruct when there is no substantial evidence to support the lesser included offense (ibid.), it must instruct if there is some evidence to support the instruction. When the court has erred by not instructing sua sponte on lesser included offenses, we test whether the error is prejudicial under People v. Watson (1956) 46 Cal.2d 818. (People v. Breverman, supra, 19 Cal.4th at p. 178 ["in a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson"].) In applying the Watson standard, we determine whether it is reasonably probable that the result would have been more favorable to the defendant had the error not occurred. (Watson, at p. 836.)
Analysis
We conclude the court erred by not giving the instruction on simple assault but the error was not prejudicial. The evidence that Sinegal harbored sexual purposes for the assault rested on Tammie's testimony that he initiated the assault by grabbing her and trying to kiss her. However, there was some basis for the jury to have accepted that, while he assaulted Tammie, he did not try to kiss her. Tammie testified at the preliminary hearing about Sinegal's conduct but made no mention of his attempt to kiss her, an omission brought out by the defense on cross-examination. A rational jury could have concluded this was an embellishment (as impliedly argued by the defense in its closing argument) rather than accepting Tammie's explanation that she made no mention of it simply because neither side asked her at the preliminary hearing whether Sinegal tried to kiss her. However, because there was some basis from which a rational jury could have concluded Sinegal did not try to kiss Tammie, there was some evidence requiring a simple assault instruction.
However, we are not convinced it was reasonably probable the jury would have returned a verdict of simple assault even had the instruction been given. The evidence given by Tammie that Sinegal grabbed her and pulled her toward him, and tried to kiss her as he drew her face to face with him, was not contradicted by her preliminary hearing testimony. Moreover, Sinegal made no statements or engaged in any conduct suggesting he intended to rob Tammie. Instead, Sinegal tried to move her off the path into a secluded area, and got Tammie onto the ground, both of which were consistent with a planned sexual attack but neither of which would ordinarily be associated with an intent to rob (or to simply inflict injury on) a victim. We are unconvinced it is reasonably likely the jury would have convicted Sinegal of simple assault had the instruction been given.
Her preliminary hearing testimony described Sinegal as grabbing her and pulling her "as close as you would be to someone that was trying to embrace you" and he was within inches of her.
DISPOSITION
The judgment is affirmed.
McDONALD, J. WE CONCUR:
NARES, Acting P. J.
AARON, J.