Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF125420 J. Thompson Hanks, Judge.
Patrick J. Hennessey, Jr., 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, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Ahmodn Jamaal Thomas appeals from his conviction of lewd acts on a person under the age of 16 by a person at least 10 years older (Pen. Code, § 288, subd. (c) (count 4)) and resisting an executive officer in the performance of his duties (§ 69 (counts 5 & 6)). Defendant contends (1) the evidence was insufficient to support his conviction on count 4, (2) the trial court erred in failing to instruct the jury sua sponte on the impact of the relationship between defendant’s intoxication and his ability to form the required intent in count 4, and (3) in the alternative, he received ineffective assistance of counsel because his trial counsel failed to request such an instruction. We find no error, and we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant erroneously identifies the charge as count 1; however, he was found not guilty of count 1.
II. FACTS AND PROCEDURAL BACKGROUND
On August 10, 2005, K.H., then 14 years old, lived with her parents at the Deerwood Apartments in the City of Corona. Her adult sister lived in another apartment in the same complex.
That evening, K.H. was outside with two friends, B.P. and A.P. K.H.’s sister came out to ask K.H. if she would watch K.H.’s sister’s two-year-old son for an hour.
K.H.’s sister left, and the three girls played with K.H.’s sister’s son in the apartment parking lot. The apartment complex maintenance man drove up in a red car with defendant as his passenger. Defendant got out of the car holding a beer. He put the beer down and began talking to K.H. He put his arms around her waist and told her how beautiful she was. K.H. had never spoken to defendant before, although she had seen him at the park 30 to 45 minutes earlier. K.H. could smell beer on his breath. She tried to walk away, but defendant pulled on her wrists with both his hands.
Defendant finally released K.H., and she started to walk to the back of the building. Defendant followed her, grabbed her arm, and pulled her into an emergency exit stairwell. She told him to stop, but he did not respond. He put his hands inside her shirt and felt her chest. She was frightened and did not know what to do. He tried unsuccessfully to unbuckle her belt while he gripped her shoulder to hold her against the wall. He pulled out his penis and made her look at it. He held his penis with one hand and “kind of bounc[ed] it up and down.” He said he had just gotten out of jail and it had been a while since he had been with a woman.
K.H.’s sister returned to the apartment complex 45 minutes to an hour after she had left her son with K.H. When she returned, she found her son with A.P. and B.P. The girls told K.H.’s sister that “[t]his guy came and he took her somewhere,” and they pointed in the direction they had gone. K.H.’s sister went to look for K.H. She found that the emergency exit was locked, and she started knocking on the door. She heard voices and heard people moving around. Someone loudly asked, “Who is it?” K.H.’s sister demanded to know if K.H. was there, and she heard people running up the stairs. She ran around the building to the stairwell and ran up one flight. On the second floor, she saw K.H. and defendant coming upstairs, and she asked K.H. what was going on. Defendant was holding K.H. against the wall so K.H. could not move, and K.H.’s sister testified that K.H. appeared somewhat frightened and did not say anything.
K.H. heard the banging on the door to the stairwell, and she heard someone trying to pull open the door. K.H. ran up the stairs and met her sister. K.H.’s sister opened the door to the stairwell, slapped K.H., and yelled at her. The sisters began walking away. Defendant followed them, approached K.H., and put his arm around her. K.H.’s sister told defendant not to touch K.H. and asked if he knew how old she was. He responded he did not know. Defendant said he was 18 years old. K.H.’s sister told defendant K.H. was 14 years old, and defendant shrugged his shoulders as if it did not matter.
The probation report reflects that defendant was born in February 1979, so he would have been 26 years old in August 2005.
Once back in her apartment, K.H. told her sister what had occurred. K.H.’s sister went outside to confront defendant. Defendant was upset because K.H. had said he was ugly; he stated women found him irresistible. K.H.’s sister returned to the apartment and called their father, who told her to call the police, which she did. She also contacted the security guard at the apartment complex. A little while later, the security guard returned with defendant in custody. Defendant was acting as if nothing had happened.
On cross-examination, K.H. denied telling anyone she was 18 years old. She denied she had gone to the emergency exit stairwell voluntarily with defendant. She acknowledged she had had sex with a boy in a different stairwell one time before. She denied having told B.P. that she had had oral sex or sexual intercourse on several occasions with different boys in the emergency exit stairwell. She acknowledged defendant had not made any threats to her.
A.P., 12 years old at the time of trial, and B.P., 13 years old at the time of trial, testified they had been outside with K.H. when K.H.’s sister asked K.H. to babysit. A short while later, the maintenance man arrived with defendant, who got out of the car with a beer in his hand. The maintenance man and defendant spoke with K.H., and it appeared that defendant knew her. After defendant had a brief conversation with K.H., K.H. gave the baby to A.P. and walked away with defendant. It appeared to A.P. that defendant had a strong grip on K.H.’s arm, so that K.H. could not pull away, and she looked scared or worried. A.P. testified defendant’s nails were digging into K.H.’s skin. B.P. did not notice that the man used any force. After K.H.’s sister returned, they began looking for K.H.
A.P. saw defendant, K.H., and K.H.’s sister come around the building. Defendant was zipping his pants and adjusting his shirt; K.H.’s sister appeared very angry, and K.H. appeared to be crying. A.P. was unable to identify defendant at trial as the man she had seen that day, but she had seen the man in police custody the night of his arrest. K.H. had told A.P. and B.P. that K.H. had had sexual experiences with six to 10 boys in the same emergency exit stairwell.
D.K., 14 years old in August 2005, lived at the same apartment complex. She had seen defendant there earlier in the day, and he had “look[ed] [her] up and down” and tried to “hit[] on [her]” until a neighbor yelled at him to leave her alone because she was only 14 years old. She saw defendant in custody later that evening, but she was unable to identify him in court.
Rex Western was a security guard at the apartment complex. On August 10, while on foot patrol, he had seen defendant drinking a beer and acting somewhat boisterous. Western heard defendant say to a woman getting out of her car, “[H]ey, baby, how’s it going?” Western asked defendant if defendant lived at the complex, and defendant replied that he did, but he was unable to say which apartment he lived in, and he did not have any identification with him. Western escorted defendant out of the complex and told him he would be arrested for trespassing if he returned without identification or proof that he lived there or unless he had been invited by a resident.
When Western returned to the complex, a young woman approached him and asked him if he was with the police department. The woman said her younger sister had just been accosted, and she gave a description of the man that matched the man Western had just escorted off the property. Western briefly interviewed K.H., who told him the man had touched her inappropriately. Western went to look for the man. About a block away from the complex, Western spotted defendant. When Western was about 20 feet away, defendant turned and ran. Western caught him and detained him for the police.
Corona Police Community Service Officer Paul De La Hoya was working in the booking area of the jail on August 10, 2005. When defendant was brought into the jail, defendant was agitated and upset that he had been arrested, and he was yelling at the officers. Defendant continued to yell during the booking process. Officer De La Hoya and Officer Mark Currier completed a search of defendant, photographed him, and got the paperwork done. When the officers informed defendant that he was charged with, among other things, committing a lewd act with a minor and with false imprisonment, defendant became particularly upset. He yelled that he was not a child molester, and he would not comply when the officers asked to take his fingerprints. He eventually allowed the officers to take his thumbprint. However, he started threatening to shoot the officers.
Officer De La Hoya concluded that defendant would have to be put in a cell and would be booked later when he reached the main county jail. Defendant struggled with the officers and swung his arms at them when they tried to put him in a cell. Officer Currier tried to spray defendant with pepper spray, but defendant covered his eyes with his arm and the spray hit only defendant’s arm, and he was not affected by it. Officers Currier and De La Hoya grabbed defendant’s arms and tried to get his hands behind his back.
Eventually, other officers came to their assistance, and defendant was Tasered and handcuffed. Officer De La Hoya testified two of his fingers “got a little jammed,” and Officer Currier received a scrape on his elbow during the struggle. Officer Currier believed the physical struggle had lasted 30 seconds to one minute before the other officers arrived.
Orlando Alexander testified he worked as a maintenance assistant at the Deerwood Apartments in August 2005, and he was friendly with K.H. and her sister. He had parked in the apartment parking lot on the afternoon of August 10, and he saw K.H. and several of her friends. A young man joined the group; Alexander did not know the man, and he did not identify defendant in the courtroom as that man.
K.H. and the young man hugged and acted as if they knew one another; both appeared friendly. After less than five minutes of conversation, K.H. took the man’s hand and started pulling him back toward the fire escape area. K.H. did not signal to Alexander or to her friends that she needed help or that she did not want to go with the man. The man appeared to have been drinking—he had alcohol on his breath, and he was acting tipsy. Alexander had previously stated to the police that the group had been talking next to his car, “And then, the girl, she walked up, well no, he grabbed her hand. You know, and, and they was talking they was jawing at each other, and they just walked away.”
Sergio Velasco testified he was a maintenance supervisor at the Deerwood Apartments, and he knew K.H. and most of the other residents at the complex. On the afternoon or early evening of August 10, he had seen K.H. talking with a man who appeared to be a good friend. He had never seen the man before. K.H. and the man appeared to be smiling and talking to each other and grabbing each other’s hands in a friendly manner. The man and K.H. walked out of Velasco’s sight. The man had a beer in his hand, and he appeared to be intoxicated.
The jury found defendant guilty of lewd acts on a person under the age of 16 by a person at least 10 years older (§ 288, subd. (c) (count 4)) and resisting an executive officer in the performance of his duties (§ 69 (counts 5 & 6)). The jury also found defendant not guilty of kidnapping for purposes of rape (§ 289) as charged in count 1 or false imprisonment by force (§ 236) as charged in counts 2 and 3. In bifurcated proceedings, the trial court found true the allegations that defendant had suffered a prior conviction for robbery, a serious and violent felony, for which he had served a prison term. (§§ 211, 667, subd. (a), (b), (c) & (e)(1), 1170.12, subd. (c)(1).)
The trial court sentenced defendant to four years for count 4 (the middle term for the offense, doubled under the “Three Strikes” law), a consecutive term of one year four months for count 5, and a consecutive term of one year four months for count 6. The court imposed a one-year consecutive enhancement for the prior prison term and a five-year term for the serious prior conviction, but struck that term.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support his conviction on count 4. He argues that inconsistencies in the testimonies of the victim and other witnesses indicate that the victim was not being truthful, and her testimony cannot be believed. He also argues that his own actions were consistent with his adamant denial that he had molested K.H.
1. Standard of Review
When a defendant challenges the sufficiency of the evidence to support a criminal conviction, we determine “‘“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.”’ [Citations.] . . . ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, [we] “must view the evidence in a 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.”’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1175.)
We therefore review the record in the light most favorable to the prosecution to determine whether the challenged convictions are supported by substantial evidence, meaning “evidence which is reasonable, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “In deciding the sufficiency of the evidence, [we] resolve[] neither credibility issues nor evidentiary conflicts. [Citation.] 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, supra, 34 Cal.4th at p. 1181.)
2. Analysis
Defendant’s contention merits little discussion. The evidence set forth in the statement of facts abundantly supports defendant’s conviction. Despite the inevitable inconsistencies among the various witnesses’ testimonies, nothing about K.H.’s testimony in which she described defendant’s conduct was physically impossible or inherently improbable. The resolution of the conflicts and inconsistencies in the evidence was solely the province of the jury, and our task on appeal does not involve reweighing the evidence. (People v. Young, supra, 34 Cal.4th at p. 1181.) We therefore reject defendant’s argument that the evidence was insufficient.
B. Jury Instruction on Effect of Intoxication
Defendant contends the trial court erred in failing to instruct the jury on the impact of the relationship between defendant’s intoxication and his ability to form the required intent in count 4. Specifically, defendant contends the jury should have been instructed with CALJIC No. 4.21.
We observe that during pretrial motions, defendant’s counsel moved to exclude evidence that defendant had been holding a beer or that he had the odor of alcohol on his breath. Defendant’s counsel argued that such evidence was “entirely prejudicial to my client in the absence of any expert testimony that would establish what a person’s behavior is likely to be under the influence of some alcoholic beverages,” and that such evidence had no probative value and was highly prejudicial. Defendant’s counsel further stated his concern that an “argument could be made, something relating to his proclivity to commit certain offense or . . . .” The trial court asked, “That the alcohol prevented him from having any specific intent, you mean that sort of thing?” Defense counsel replied, “No. The alcohol made it more likely that he committed the alleged offenses.”
CALJIC No. 4.21 provides: “In the crime[s] of ____, . . . of which the defendant is accused in Count[s] ____, . . . a necessary element is the existence in the mind of the defendant of the [specific intent to ____] [mental state[s] of ____]. [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required [specific intent] [mental state]. [¶] If from all the evidence you have a reasonable doubt whether the defendant formed that [specific intent] [mental state[s]], you must find that [he] . . . did not have such [specific intent] [mental state[s]].”
1. Standard of Review
We apply de novo review to questions concerning the validity and impact of the jury instructions because the underlying question is one of law and the application of legal principles. (People v. Alvarez (1996) 14 Cal.4th 155, 217.)
2. Analysis
The trial court has a sua sponte duty to instruct the jury on the principles closely and openly connected to the facts of the case. This duty requires the trial court to instruct the jury on all the elements of the offenses charged and on possible defenses supported by the evidence. However, People v. Saille (1991) 54 Cal.3d 1103, 1119 through 1121, established that an instruction on voluntary intoxication is in the nature of a pinpoint instruction, i.e., an instruction that relates particular facts to a legal issue in the case. Pinpoint instructions need be given only when requested and only when supported by the evidence. (Id. at p. 1119.)
Defendant concedes the instruction was not requested. Nor was the instruction supported by the evidence. In People v. Ivans (1992) 2 Cal.App.4th 1654, 1661, this court stated that an instruction on voluntary intoxication “is not required when the evidence shows that a defendant ingested drugs or was drinking, unless the evidence also shows he became intoxicated to the point he failed to form the requisite intent or attain the required mental state.” This court noted that other courts had found the evidence insufficient to support a sua sponte intoxication instruction when: “(1) the defendant had drunk some beer and whiskey and was ‘“pretty well plastered”’ (People v. Spencer (1963) 60 Cal.2d 64, 88 . . .); (2) the defendant had been drinking for several hours, but was ‘only woozy and not completely “blacked out”’ (People v. Simpson (1987) 192 Cal.App.3d 1360, 1370 . . .); (3) the defendant had been drinking before the crime; he appeared to be ‘“a little high”’ at the time of the crime, and he testified he was ‘“pretty drunk”’ (People v. Cram (1970) 12 Cal.App.3d 37, 42 . . .); and (4) the defendant had drunk a dozen beers and some wine and thought he was drunk, but knew what he was doing. (People v. Gonzales (1970) 4 Cal.App.3d 593, 607. . . .)” (Ivans,at p. 1662; see also People v. Dunkle (2005) 36 Cal.4th 861, 911 [defendant’s statement that he was “pretty well drunk” and had taken “dope” before the murder was insufficient evidence to warrant a voluntary intoxication instruction].) The evidence in the present case on which defendant relies—that several witnesses had observed defendant drinking and noted from his demeanor that he appeared to be intoxicated—is even less compelling than the evidence rejected as insufficient in all of those cases listed above.
Moreover, even if the instruction should have been given, the omission of the instruction was harmless. The specific intent required for the offense of lewd and lascivious conduct with a child under the age of 16 under section 288, subdivision (c) is the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused. (See People v. Warner (2006) 39 Cal.4th 548, 553; People v. Mullens (2004) 119 Cal.App.4th 648, 661-662.) No reasonable jury could have found that defendant’s actions of putting his hands on K.H.’s chest under her T-shirt, pinning her against the wall while trying unsuccessfully to unbuckle her pants, and then pulling out his penis and shaking it up and down while telling K.H. he had just gotten out of jail and had not been with a woman for a long time, were done for any purpose other than sexual arousal or gratification.
C. Assistance of Counsel
Defendant argues that even if the trial court had no sua sponte duty to instruct the jury on the effect of his intoxication, his trial counsel provided ineffective assistance by failing to request such an instruction.
To establish a claim of ineffective assistance of counsel, the defendant must demonstrate both that “‘“counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness . . . under prevailing professional norms’”’” and that “‘“counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”’” (People v. Salcido (2008) 44 Cal.4th 93, 170.)
As noted above, even if the instruction had been given, there was no reasonable likelihood of a more favorable outcome. Defendant has failed to establish the prejudice prong of ineffective assistance of counsel, and we therefore reject his contention.
IV. DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KING, J.