Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC502691
McAdams, J.
After a court trial, defendant was found guilty of kidnapping Cynthia, a child under 14, to commit a lewd act (Pen. Code § 207, subd. (b)), kidnapping her for the purpose of committing a sexual offense (§ 209, subd. (b)(1)), committing four forcible lewd acts on her (§ 288, subd. (b)(1)), making criminal threats against her (§ 422), and committing a lewd act on Jacqueline, a child under 14. (§ 288, subd. (a).) The court sentenced defendant to 34 years to life in prison.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On appeal, defendant challenges the sufficiency of the evidence to prove kidnapping a child under 14 (§ 207, subd. (b)) and kidnapping for the purpose of committing a sexual offense (§ 209, subd. (b)(1)). We affirm.
STATEMENT OF FACTS
Jacquelyn
In 2003, defendant lived in the apartment upstairs from Mary and her 13-year-old daughter, Jacquelyn. Defendant, who was 24 years old, told Mary he wanted her daughter to be his girlfriend. Mary said no. However, one day Mary saw Jacquelyn when she was undressing to take a shower; Jacquelyn had “hickies” on her neck and breasts. Jacquelyn said defendant had given them to her.
Jacquelyn’s birthday is May 1990.
Jacquelyn described her relationship with defendant when she was 13 as “more than friends.” He asked her to be his girlfriend and she said yes. They kissed, and he gave her three “hickies,” one on her neck and one on each breast. He pulled out his penis, and she pushed him away. After her mother found out about the “hickies,” her relationship with defendant ended.
Cynthia
Cynthia met defendant through a telephone party in September 2004, when she was 13. She was in the seventh grade. He called her on her cell phone and said he wanted to meet her. He told her he was 18, and she told him she was 13. He arranged to pick her up at the house of one of her friends. They went to Oakridge Mall, and then he drove into the mountains. He told her he was taking her somewhere nice and that she would really like it. Once they got to the mountains, they kissed in his car. Defendant said there were too many people around and he moved the car to a more secluded spot on the road.
She did not remember the exact month and year, but she eventually remembered telling the police she started talking to him in September 2004. Her birthday is July 1991.
Defendant got into the passenger seat with Cynthia, moved the seat from a sitting to a reclining position, positioned himself between her legs and started kissing her. Cynthia was “kind of scared.” She thought it was weird, because she did not know him, and she did not think anything like that was going to happen when she decided to go with him. Cynthia told him she did not want to do anything. Defendant responded, “Just a quickie.” Defendant pushed down or took off his pants and underwear; then he grabbed Cynthia’s hand, and put it on his penis. She did not want to touch it. She took her hand off his penis and he put it back on his penis three times. Meanwhile, he was kissing her and unbuttoning her pants. She kept saying, “No, I don’t want to do anything.” He put his mouth on her vagina. Then he put on a condom and put his penis in her vagina. She tried to move him off her but he just kept pushing forward. Once he got his penis inside her, she just gave up and let it happen, even though she didn’t want anything like that to occur. It hurt, because she had only had sex two times before that, two months earlier. When he finished, he threw the condom away, then they got dressed and left.
As they were driving away, defendant asked her to be his girlfriend. She did not want to be his girlfriend, but she said “Yeah” because of what had happened. She felt it was her fault. He took her home. She was upset and did not know what to think.
He called her the next day and wanted to pick her up, but she could not go with him because she had cross-country practice. On her way to school the next day after practice, she saw his car close to her house. Then she saw him, and he told her to get in the car. She said, “For what?” He told her to get in. She said she had to go to school. He said he would bring her back. She got in the car.
He drove her to a park on the way to the mountains. They got out of the car and took a walk while they talked. Then he said he needed to go to the bathroom. He walked into a thicket of bamboo and told her to follow him. She waited for him, and after he finished he started to take her clothes off while he kissed her. She did not want to take her clothes off and told him to stop, but he didn’t listen. There were spiders everywhere and she was scared. Despite her efforts to stop him, he succeeded in disrobing her. He took off his shirt and laid it on the ground; then he tried to lay her down. She did not want to lay down, but she wound up on the ground. She was more scared than the first time, because she tried harder to get him off her, but he actually used more force on her. He put his mouth and then his penis in her vagina. He did not use a condom. When he finished, they put their clothes on and he took her to the Great Mall. Defendant told Cynthia that he was 20, and she was shocked.
She wanted to tell her mom, but she couldn’t really tell her things like that. After the second time, she continued to see him. When he wasn’t forcing her to have sex with him, she liked to spend time with defendant, but it would always end up with him putting his penis in her vagina. She also felt that she did not want to spend time with him, but did so because she felt “kind of bad” because he thought they were together and she “felt like [she] had to keep on seeing him.”
In January 2005, she went to Mexico with defendant. From the time she met defendant to the time she went to Mexico with him, she saw defendant and had sex with him every day. Sometimes they would have sex in the bushes at a Milpitas middle school. She did not want to have sex with him, but he did it anyway. One time, when they were having sex in the bushes at that school, he put his penis in her anus. She did not want him to do that. She let him do it because she heard some girls say it felt good. But it hurt. Another time, she had sex with defendant behind the some big blue sheds at the Herman School at night. The condom broke. She cried because she was 13 and she thought she was going to be pregnant.
Cynthia did not remember the month or year, (she thought it was April), but she remembered telling the police it was January 2005.
Sometime before Cynthia went to Mexico with defendant, the police came to her school to talk to her. The officer asked her if she was involved with someone older than her. She said no. They also asked her if she was defendant’s girlfriend, and if she had had sex with him. She said no. She lied to the police “because I didn’t want him to be in jail.”
It was defendant’s idea to go to Mexico. She was on house arrest. She cut the bracelet off. “He thought the cops were going to go after him. And he wanted to be with me. And I wanted to be with him. So he asked me if I wanted to go to Mexico and I said yeah.”
Cynthia’s relationship with her mother was not the reason she went to Mexico, “but that was [defendant’s] reason.” Before defendant asked her to go to Mexico, Cynthia had called her mother, who was already mad at her. “She got me mad because she was accusing me of something I didn’t do so I was mad and I left. I didn’t run away. I just left.” When she left home, she did not pack luggage; she did not expect to go to Mexico when she left home.
Defendant told her to call her mother again and ask her mother if she was mad “or something like that.” Cynthia did call her mother. “And my mom, all she said was: ‘I don’t care. Do whatever you want.’ She just hung up the phone.” Cynthia told defendant what her mother had said. Defendant “got mad and he told me: ‘Your mom doesn’t care.’ [¶] He said something about my mom not caring what I do, to do whatever I want. [¶] So he asked me if I wanted to go to Mexico.”
Also, she knew that she and defendant could be together as boyfriend and girlfriend in Mexico because “there is really not a law about age.” She wanted to be with him; that was the main reason why she went. She went of her own free will.
They spent the night at defendant’s brother’s house. The next day, they went to Mexico by bus. Defendant’s brother’s wife gave her clothes so that she would have something to wear in Mexico. She packed them in luggage. Defendant’s brother went to the bank to get the money for their tickets. Asked if she wanted to go to Mexico with defendant, Cynthia testified: “I was scared. I felt like I did, but at the same time I didn’t.” Defendant did not say anything that made her feel as if she did want to go, “but I knew we would be able to be together, so that was one of the … things that made me want to go.”
She had no money; defendant paid for everything. When they arrived at defendant’s parents’ house, they had sex. She started to want to have sex with defendant when they were in Mexico.
In Mexico, defendant started to be violent with her. The first time, he punched her in the right eye. The bruising and swelling lasted a week. She was afraid of him. Every time he hit her, he would tell her not to cover herself or he would hit her more. Once he broke a mirror in anger and threatened to stab her in the stomach with a shard. He punched her in the left eye. He hit her in the hip area. He kicked her in the area of her vagina. He punched her in the stomach so hard she could not breathe. He left her in a cornfield and told her the wolves would get her. He hit her in her jaw so hard she could not talk. After that, she managed to run to a neighbor’s house. She could not remember if defendant ever forced her to have sex with him after he started beating her.
In April 2005, Cynthia and defendant left Mexico by plane. She missed her mother and wanted to get away from defendant. Cynthia’s mother picked her up in Tijuana and brought her home. But she continued to see defendant for a while after she got home. She was still his girlfriend, even though she did not want to be with him. However, she told a police officer that she would miss him and call him. At trial, she could not recall if she had sex with defendant when she returned home, but previously she told a police officer that she did have sex with him.
The transcripts of Cynthia’s interviews with Detectives Stephens and Christian, as well as the CD-Rom of the interviews, were offered as evidence by the defense and admitted at trial.
The day she finally told defendant that she wanted to end the relationship, he got mad. He made her go into the garage, where he forced her to orally copulate him.
At some point, Cynthia spent time in juvenile hall; after she got out, she did not see defendant any more. Several months went by. Then, on August 29, 2005, Cynthia was walking to school and talking on her phone when she heard someone call her name. She turned and saw that it was defendant. She hung up the phone, tried to call 9-1-1 and ran. He ran after her. He caught her and grabbed her hand and told her that he just wanted to talk. He took her phone away from her. She was crying and screaming as he pulled her across the street towards his car. As they crossed the street, he showed her he had a gun tucked into his pants and told her to shut up or he would shoot or kill her. He forced her into the car and locked her in. He got into the car and started driving fast. Once in the car, he started trying to be nice to her. He told her how much he missed her. He told her he was going to get a new car, a Mustang, in order to show off and win her back. He asked her if she had a new boyfriend, and when she indicated that she did, he wanted to know where he lived, because he wanted to beat him up. Defendant told her he could not live without her, or something like that.
After about 10 or 15 minutes of driving, Cynthia noticed there was somebody in the back seat; it was defendant’s friend Billy. He was very quiet, and defendant did not let Billy talk.
On the freeway, Cynthia banged on the window to get the attention of someone in another car. She discovered she could roll down the window. Defendant told her to close the window. He put his hand on the gun, and she complied.
Defendant started telling her that they should never have left Mexico. She was afraid he was going to take her back there, and she pushed open the car door with her legs while the car was moving. She saw a man on a tractor alongside the road and started screaming. Defendant told her he couldn’t hear her, and to close the door. When she refused, he grabbed her by the neck with his arm.
The next thing she remembered was defendant telling Billy to put gas in the car, and her not to be stupid. She thought defendant had run out of gas at the entrance to a gas station; he was pushing the car. She got out of the car and demanded her phone. He would not give it to her. She hit him and ran into the gas station yelling for help. Someone from the gas station called the police, and they arrived within 15 or 20 minutes.
Billy had met up with defendant the night before. He had ridden around in the night looking for defendant’s girlfriend, Cynthia. Defendant told Billy he was missing Cynthia and he wanted to see “what’s going on, if she had a boyfriend or something.” He said he “just wanted to talk to her.” They found her early in the morning as she was walking, near her house. Defendant asked her to get into the car in a “really mean” way, but she said “No. No. I got to go to school.” Defendant “didn’t take no for an answer. So he grabbed her” and “[j]ust threw her in the car.” Cynthia was screaming and crying. Defendant drove off really fast. He said he was going to take Cynthia to school. Instead, he drove to Salinas.
In the car, on the way to Salinas, they fought about who she was seeing. Cynthia was still yelling and crying. At one point, defendant took out a gun and pointed it at her head. He told her not to say anything or she would get shot.
Cynthia denied that he pointed the gun at her.
Defendant was driving “like a maniac.” Cynthia opened the car door and tried to get out. She had the top half of her body out of the car. Defendant pulled her back in by the hair. Another car tried to stop to help, but defendant kept driving. About 10 minutes later, they stopped at a gas station in Salinas. Cynthia got out of the car, “and she took all her anger and started hitting [defendant] in the face” with her fist. Then she ran into the gas station. They ran, too, but the police found them.
The police located a handgun, or what looked like a handgun, on the driver’s side of the car, jammed between the seat and the side of the car.
Billy testified that he later learned the gun was a fake.
DISCUSSION
Defendant argues that the evidence adduced at trial is insufficient as a matter of law to support his convictions for kidnapping a child under 14, and kidnapping for the purpose of committing a sexual offense. Specifically, defendant argues that, as to count 5, the violation of section 207, subdivision (b), there is insufficient evidence to prove that he enticed or persuaded Cynthia to run away with him to Mexico; and as to count 6, the violation of section 209, subdivision (b)(1), there is insufficient evidence that he harbored the specific intent to sexually assault Cynthia at the time he kidnapped her. In essence, he claims that his convictions rest on pure speculation. We disagree.
I. Relevant Legal Principles
In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the 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, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “An 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.) “A reasonable inference, however, ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] … A finding of fact must be an inference drawn from evidence rather than … a mere speculation as to probabilities without evidence.’ ” (People v. Morris (1988) 46 Cal.3d 1, 21, overruled on other points in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5 & 6.) A trier of fact may rely on inferences to support a conviction only if those inferences are “of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt” that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 891.) “Evidence is sufficient to support a conviction only if it is substantial, that is, if it ‘ “reasonably inspires confidence” ’ and is ‘credible and of solid value.’ ” (Ibid., citation omitted.)
“The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation],… An appellate court must accept logical inferences that the [trier of fact] might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)
II. Enticement or Persuasion
Defendant was convicted, in count 5, of violating section 207, subdivision (b), which provides: “Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping.” Defendant argues that the evidence of persuasion or enticement is insufficient as a matter of law because when asked, “Did [defendant] say anything that made you feel like you did want to go” to Mexico, Cynthia answered “No, but I knew we would be able to be together, so that’s one of the reasons – that’s one of the things that made me want to go.” And, when she was asked, “Did he ever say anything about wanting to go to Mexico for not getting in trouble or you cutting your bracelet off,” she responded: “I don’t remember. I don’t think he did.” He argues “the court cannot infer that defendant persuaded Cynthia to go when Cynthia’s direct and uncontradicted testimony was that defendant did not say anything to make her want to go to Mexico.” We disagree.
The above-quoted testimony was not all that Cynthia said on the subject of her reasons for going to Mexico with defendant. From the sum total of her testimony, the trial court was entitled to infer that, while defendant did not say anything directly to entice or persuade her to go to Mexico, he did so by the saying things indirectly, and by doing things, which caused Cynthia to want to go to Mexico.
First, defendant physically seduced her over many months. By his conduct, he made a 13-year-old girl want to “be able to be together” with a 25-year-old man without any adult interference. His seduction of her made her not want him to get into legal trouble. She had lied to the police about not having a sexual relationship with him “because [she] didn’t want him to be in jail.” She had cut off her house arrest bracelets and “[h]e thought the cops were going to go after him. And he wanted to be with me. And I wanted to be with him. So he asked me if I wanted to go to Mexico and I said yeah.”
Furthermore, defendant exploited Cynthia’s anger at her mother. She testified that when she left home after an argument with her mother, she did not intend to run away from home. But after she called her mother, at his suggestion, and she told defendant what her mother said, defendant used her mother’s angry words as an argument in favor of going to Mexico with him. In addition, defendant made it easy for her to go to Mexico, without going home first, where she might be confronted by her mother: he arranged for them to spend the night at his brother’s house, he arranged to get the tickets and, since she had no clothes, he arranged for his sister-in-law to give her clothes to wear. In our view, Cynthia’s testimony, as a whole, amply supported the reasonable inference that defendant did, by word and action, persuade and entice Cynthia to go to Mexico with him, and this inference was not foreclosed by the isolated testimony on which defendant relies.
The trial court found that the totality of the evidence on this point was sufficient beyond a reasonable doubt. “Why do I find that element…? It was the defendant’s idea. Regardless of how he got the ticket, he supplied the ticket. He also supplied clothes to her, through a third party, but nevertheless, it was through his contacts that the cloth[es] were supplied. [¶] At the time that it happened, Cynthia, was certainly in conflict with her mother, which many teenage girls are at that age. And she really admitted that. She also said that she was not happy with her mother. At that particular time she was angry with her [mother]. But she also said she didn’t go to Mexico because she [was] angry with her mom. What I found based upon the evidence is that he preyed upon her vulnerability. He preyed upon her vulnerability. And that was a way of enticing her, by telling her that mother didn’t really care about her. And you put that in context with the conflict that she is having with her mother at that time and not only that, the defendant enticing her by telling her that her mother did not care for her. [¶] But at this point in time she was developing feelings for the defendant and he preyed upon those feelings by telling her that they now can go to Mexico and be together without any other conflicts surrounding them. And, so, that was a way to enticing her to go. And I feel that it’s more than sufficient evidence beyond a reasonable doubt on that particular element.”
We conclude the trial court’s finding that defendant enticed or persuaded Cynthia to go to Mexico with him is supported by substantial evidence.
III. Intent to Commit a Sexual Offense
Defendant was also convicted, in count 6, of violating section 209, subdivision (b)(1), which provides: “Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole.” Defendant argues there was “not a shred of evidence to establish that defendant abducted Cynthia on August 29, 2005, with the intent to carry on their sexual relationship,” although he agrees it may be inferred that “based on their prior relationship defendant would have attempted to have sex with Cynthia had he successfully abducted her.” In our view, it may be inferred from the evidence that defendant harbored the intent to have sex with Cynthia, against her will if necessary, before he set about to abduct her.
Billy testified that they drove around the night before the abduction, looking for defendant’s “girlfriend.” Although defendant said he just wanted to talk to her, his obsessive search for her belied that intent. Furthermore, defendant also told Billy while they searched for her that he was missing her, and he wanted to see “what’s going on, if she had a boyfriend or something.” Finally, the overwhelming evidence showed that defendant’s interest in, and relationship with Cynthia, was sexual. He had sex with her for months, every day. She broke up with him because, she told him, “all you wanna do is fuck.” The evidence was also overwhelming that he had sex with her whether she wanted to have sex or not, and that they had not had sex for several months, since she broke up with him. A rationale trier of fact was entitled to infer from this evidence that defendant’s interest and purpose in finding and abducting Cynthia was to have sex with her again.
The trial court did so infer. It found that “in the context of the entirety of this relationship, I do think that based upon the evidence surrounding the relationship that the defendant’s intent in taking Cynthia was to rape her. Now, was it a typical rape where someone takes someone off the street and then rapes them immediately? Well, no. This was not that. But this relationship was never like that. And, so, the fact that even Billy was present did not negate to the trier of fact what the defendant’s eventual intent was to be; it was to continue that sexual relationship, which, based upon all the evidence, it had been during the entirety of the relationship, as Cynthia describes, having sex at least hundreds of times, if not every day. And I do find the defendant guilty of count 6.”
Defendant seizes upon the trial court’s use of the phrase “eventual intent” and implicitly argues the court found only that the intent to rape was formed after the abduction. We disagree. In the context of the court’s entire remarks, it is clear that the court found that “the defendant’s intent in taking Cynthia was to rape her,” and that by referring to defendant’s “eventual intent” the court meant only that defendant was forced, by the circumstances, to delay gratification of that intent. (Italics added.) Where, as here, “a judge’s statements as a whole disclose a correct concept of the law and its application, no secondary remarks should be deemed to have impeached his determination.” (People v. Cartier (1960) 54 Cal.2d 300, 312.) Substantial evidence supports defendant’s conviction for kidnapping with the intent to commit a sexual offense.
CONCLUSION
Substantial evidence supports defendant’s convictions for violation of sections 207, subdivision (b) and 209, subdivision (b)(1).
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.