Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Ct. No. 07CEJ601609-1, Martin C. Suits, Commissioner.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
J.V., a juvenile, was found to have committed first degree residential burglary, assault with intent to commit rape, and sexual battery by restraint. On appeal, he contends (1) insufficient evidence supported the findings that he committed these three offenses, and (2) the term on the residential burglary should have been stayed. We agree the residential burglary term must be stayed, but we conclude substantial evidence supported the juvenile court’s findings that J.V. committed the offenses. Accordingly, we stay the term and affirm in all other respects.
PROCEDURAL SUMMARY
On September 23, 2008, the Fresno County District Attorney filed a juvenile wardship petition (Welf & Inst. Code, § 602, subd. (a)), alleging that J.V. committed first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); count 1), assault with intent to commit rape (§ 220; count 2), and sexual battery by restraint (§ 243.4, subd. (a); count 3). The following day, the court ordered J.V. detained pending a jurisdictional hearing.
All statutory references are to the Penal Code unless otherwise noted.
At the contested jurisdictional hearing on November 13, 2008, the court found all three allegations true beyond a reasonable doubt.
At the dispositional hearing on December 1, 2008, the court declared J.V. a ward, deemed each count a felony violation, and determined J.V.’s maximum term of confinement to be seven years four months, as follows: the upper term of six years on count 2, and 16 months (one-third the middle term) on count 1, to be served consecutively. The court stayed the term on count 3 (§ 654).
FACTS
The victim knew fifteen-year-old J.V. from school and she had done social things with him. On September 19, 2008, the victim went with J.V. and two other people to the store. On their way home, the victim returned to her house. At about 11:00 a.m., when she was home alone, doing her homework and listening to the radio in the living room, she heard a whistle outside. She looked and saw J.V. and the two other people. The victim’s front door was open, but the screen door was closed. J.V. walked toward the victim’s front door and told her he wanted to talk to her. She opened the screen door slightly and tried to go outside, but J.V. “pulled himself in.” She did not invite him in.
They stood right next to each other in the living room, about four feet from the front door. J.V. said, “‘Let’s do this, let’s do this.’” The victim understood that he was referring to sex, and she refused. He said, “‘Why not?’” She responded, “‘[Bec]ause I already have a boyfriend.’” J.V. asked her multiple times as he stood right next to her. She said, “‘No, I have a boyfriend. I am not going to cheat on him. I don’t do that.’” He said, “‘Well, your boyfriend is not here. He is not going to see you.’” J.V. continued to tell her, “‘Let’s do this.’”
The victim became annoyed and tired of J.V.’s repeated prodding, so she grabbed her cell phone. J.V. asked her what she was doing and she told him she was just checking the time. In fact, she secretly started her cell phone’s two-minute recorder. She then held the cell phone under her other arm as she recorded their conversation. J.V. continued to ask her for sex. He asked her if she “wanted to bust a 69” and if she “wanted to take it from the back.”
J.V. kept pushing her toward the couch and, with his final push, she lost her balance and fell onto the couch in a seated position. He sat right next to her and started rubbing her “bottom.” He rubbed her breasts over her T-shirt, then he rubbed them under her bra. He said, “‘Can we just do this? … Let’s just do it.’” She said, “‘No, I don’t want to.’” He quit touching her when she moved away and got up from the couch. He got up too, stood next to her and continued to request sex, but he did not touch her again.
The victim walked toward the front door and J.V. followed her. He was still saying, “‘Let’s just do this. Nobody is here.’” The victim could not see the other two people any longer; they had left. The victim set her cell phone down and told J.V. she was going to turn on the water outside, an excuse to get J.V. out of her house. He grabbed her cell phone and followed her out as she pretended to adjust the water. J.V. said he was leaving. The victim said, “‘[J.V.], give me back my phone.’” He said, “‘Naw, you can come and get it.’” She repeatedly demanded that he give her the phone and he repeatedly refused and told her to come and get it. He said she would have to follow him to get it back, and he walked out of the gate.
The victim felt she could not follow J.V. because she was alone and her house key was in her room. But she was afraid he would run away with her cell phone. She stayed at the gate and pretended to lock it. She got the regular telephone from inside her house and she called her boyfriend. She could still see J.V. walking away. She asked her boyfriend to call her cell phone. When her cell phone started to ring, J.V. teased her by saying, “‘Do you want your phone?’” She cussed at him and told him to give it to her. He told her to come and get it. She ran after him, but he walked faster. Finally, about 10 houses down the street from her house, J.V. left the cell phone on the ground, told her to go get it, and he walked away.
The victim grabbed her cell phone and went back to her house. She locked all the doors. She was crying. She took a shower, but she “still felt like he was rubbing on [her], touching [her],” so she took another shower. She kept quiet because she was scared.
A few hours later, she confided in her neighbor, and the neighbor told her to call the police. The victim did not want to be known as a snitch, but she was really scared. She thought telling her parents was the worst thing because she was also scared of them. She called the police later that afternoon.
Defense Evidence
J.V. testified that he knew the victim through school and friends. On September 19, 2008, he talked to the victim at school. She told him she was going to be home alone later, and he could come by. After school, J.V. went to see his friend, B., and they watched television. J.V., B., and B.’s girlfriend decided to go to the liquor store. On their way, they stopped by the victim’s house and B. whistled. The victim came out of the house and B. asked her if she wanted to go with them. They all went to the store and the victim bought something for them. They walked back and the victim went into her house. She told them they could come back and smoke at her house. J.V., B. and B’s girlfriend stopped by someone’s house, but found no marijuana to buy, so they went back to B.’s house.
J.V. and B. got tired of watching television. At that time, J.V., B, B.’s girlfriend and another friend, C., went back to the victim’s house. B. whistled for the victim again as they waited outside her front gate. When she came out and told them to come in, they all entered the yard and went inside the house because “[i]t was allowed for them to walk in.” The victim did not open the door for J.V.; the door was already open and she was seated on the couch. They all sat down. The victim sat in a rocking chair. J.V. was talking to B. and the victim was talking to C. The victim asked J.V. to go to a back room. He said, “[N]o, why, when we can just sit here and talk[?]” The victim asked him again and again until he “finally got tired of it and just got up and went back there [to a room].” While they were in the room, “[e]verybody else was just sitting down in the living room, I guess, talking.”
J.V. asked the victim if she was sure that she wanted to have sex because he did not want to get into trouble. She said she was sure. J.V. felt “kind of awkward,” but they proceeded to have sex. The victim took off her clothes and J.V. unbuttoned his pants. They had intercourse for at least five minutes. J.V. did not hold any part of the victim’s body; he was holding himself up. “[B]ut then in [J.V.’s] head [he] felt like this was a setup, well, who asks you to come over just like—and starts bugging you to go to a back room. So [J.V.] stopped, []buttoned his pants, and just left the room.” He looked at the victim and “you can see the look in her eyes, like—the look in her eyes, like she was getting mad or something like that.” J.V. “just told her that [he] didn’t feel right being [there] and that [he] got to go.” “[He] just walked out. [He] didn’t even look, bother looking back. [He] just walked out, told [his] friend [B. he had] to go, [he didn’t] want to be [there] no more.” J.V.’s friends did not get up, so J.V. left the house by himself. B. came after him and grabbed his hand. B. said, “‘Where are we going?’” J.V. told him, “‘We got to go because I feel like this is a setup.’” He said he did not feel right being there. B. said, “‘[A]ll right,’” and he told the others to get up and go.
On cross-examination, J.V. testified that from what he had heard, the victim did not have a boyfriend, and she did not tell him that she did. J.V. first became suspicious of a setup when he was walking down the hall with the victim to the back room, but even though he was suspicious, he entered the dark room, put on a condom he had in his pocket, and had sex with the victim for about five minutes. During those five minutes, he kept thinking that this could be a setup.
J.V. never had the victim’s cell phone and he never teased her by taking it away.
On redirect, J.V. explained that he had sex with the victim despite his suspicions because he did not want his friends to think he was scared.
Rebuttal Evidence
The victim testified that no one other than J.V. was in her house that day, and C. was not present at all. The victim denied ever asking J.V. to have sex with her. She said he had never been in any bedroom in her house and she had never had sex with him.
DISCUSSION
I. Sufficiency of the Evidence: Residential Burglary
J.V. contends there was insufficient evidence to support a finding that he entered the victim’s house with the intent to commit a sexual assault or any other felony.
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Although we review the whole record, “[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296; People v. Panah (2005) 35 Cal.4th 395, 489.) Furthermore, “‘“‘[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’” [Citations.]’ [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.; People v. Panah, supra, at pp. 487-488.)
This same standard applies in determining the sufficiency of the evidence to support the true finding of a juvenile court. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
Residential burglary occurs when a person enters an inhabited dwelling with the intent to commit larceny or any felony. (§ 459.) Here, there was ample evidence that defendant entered the victim’s house with the intent to commit a sexual assault. The evidence established that defendant knew the victim was home alone and, from the moment he pushed himself into her house, he began his relentless pursuit to engage in sexual acts with her. He immediately started telling her, “‘Let’s do this, let’s do this.’” When she would not accommodate him, he pushed her onto the couch and forcibly groped her. This evidence supported the inference that J.V. entered the victim’s house with the intent to have sexual contact with her, regardless of whether she was a willing partner or not. Thus, the evidence was sufficient to support the juvenile court’s finding that J.V. entered with the intent to commit a felony.
II. Sufficiency of the Evidence: Assault With Intent to Commit Rape
J.V. argues there was insufficient evidence that he intended to rape the victim. Rather, he says the evidence shows he intended to seek and obtain consensual sex from her.
Assault with intent to commit rape “requires proof that [the defendant] intended to have sexual intercourse with [the victim] and to use force to overcome her resistance. [Citation.]” (People v. Craig (1994) 25 Cal.App.4th 1593, 1597.) The essential element of assault with intent to commit rape is the intent to commit the act against the victim’s will. (People v. Maury (2003) 30 Cal.4th 342, 399-400.) The requisite intent may be shown by the defendant’s statements, by his conduct, and by the circumstances surrounding the commission of his conduct. (People v. Craig, supra, at p. 1597.) “If, at any point during the incident, defendant entertains the intent to have sexual intercourse with his victim by force, the crime of assault with intent to commit rape is complete. It makes no difference whatsoever that he later abandons that intent.” (People v. Trotter (1984) 160 Cal.App.3d 1217, 1223, fn. omitted.) The defendant need not employ all of his force, and the victim need not resist fully or violently. (Id. at p. 1222; People v. Greene (1973) 34 Cal.App.3d 622, 651, fn. 7.) “The question whether the intent existed is one for the [trier of fact] to determine from the conduct of the defendant and the surrounding circumstances, and a determination by the court is permissible only when the facts afford no reasonable ground for an inference that the intent existed. [Citation.]” (People v. House (1958) 157 Cal.App.2d 151, 155; see People v. Greene, supra, at p. 649; People v. Roth (1964) 228 Cal.App.2d 522, 532.)
In People v. Craig, supra, 25 Cal.App.4th 1593, we found sufficient evidence of intent to rape where the defendant followed the victim as she drove home and then told her he had mistaken her for someone else. Instead of leaving, he pushed the victim onto the driver’s seat, placed his hand under her sweater, and “touch[ed] both of her breasts outside her bra.” The attack was then interrupted. (Id. at p. 1596.) We concluded that the evidence raised the inference that the defendant would have continued to pursue sexual intercourse by force had he not been interrupted. (Id. at p. 1600.) “All of [the defendant’s] conduct was consistent with [the intent to commit rape]. 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 [trier of fact], not us, to draw them.” (Id. at p. 1604.)
In this case, a rational trier of fact reasonably could have concluded that J.V. had the specific intent to rape the victim. The evidence supported the inference that his repeated prodding for sexual acts constituted demands rather than mere requests. He pushed his way into the victim’s house, relentlessly demanded sex, forced the victim onto the couch, and subjected her to unwanted sexual contact until she was able to get away. The fact that his pursuit was unaffected by the victim’s repeated refusals suggested that he did not intend to wait for her consent. Thus, his incessant demands and his forcible sexual contact raised the reasonable inference that, at some point during the incident, he intended to use force to overcome the victim’s unwillingness to have sexual intercourse. The evidence also supported the inference that J.V. would have continued to pursue sexual intercourse by force had the victim not been able get away from him. The fact that he abandoned his intent to use force after she got away did not negate his previous intent. In sum, there was a “reasonable ground for an inference that the intent existed” (People v. House, supra, 157 Cal.App.2d at p. 155), and the possibility that the evidence could also support a contrary inference does not require reversal (People v. Bradford, supra, 15 Cal.4th at p. 1329).
III. Sufficiency of the Evidence: Sexual Battery by Restraint
Defendant asserts that there was insufficient evidence that he restrained the victim within the meaning of section 243.4, subdivision (a). He notes that he stopped his advances when the victim moved away and stood up, and he continued begging for sexual favors.
Sexual battery by restraint consists of the following elements: (1) a person touched an intimate part of the victim, (2) the touching was against the victim’s will, (3) the touching was done with the specific intent to cause sexual arousal, gratification, or abuse, and (4) the touching occurred while the defendant unlawfully restrained the victim. (§ 243.4, subd. (a); People v. Elam (2001) 91 Cal.App.4th 298, 309-310.) A person is unlawfully restrained under section 243.4, subdivision (a) “when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the person’s liberty, and such restriction is against the person’s will; a restraint is not unlawful if it is accomplished by lawful authority and for a lawful purpose, as long as the restraint continues to be for a lawful purpose. The ‘unlawful restraint required for violation of section 243.4 is something more than the exertion of physical effort required to commit the prohibited sexual act.’ [Citation.]” (People v. Arnold (1992) 6 Cal.App.4th 18, 28 (Arnold).)
In Arnold, cited by defendant, the defendant was a school teacher who went jogging with a 17-year-old female high school student who was infatuated with him. (Arnold, supra, 6 Cal.App.4th at p. 22.) The defendant’s sexual advances initially consisted of pulling the student toward him, grabbing her buttocks, and fondling her breasts. The student willingly accompanied the defendant and did not object to these initial acts. (Id. at pp. 22, 29.) The court concluded that these acts did not constitute unlawful restraint under section 243.4. (Id. at p. 30.)
Arnold, however, is distinguishable from this case. Here, from the start, the victim repeatedly refused J.V.’s demands for sex. J.V. pushed her onto the couch and subjected her to unwanted sexual touching until she was able to get away from him. He rubbed her buttocks and her breasts, first over her shirt, then under her bra. The victim again told J.V. she did not want to have sex with him, but he continued to touch her until she was able to move away and get off the couch.
This evidence supported the inference that J.V. subjected the victim to the unwanted skin-on-skin touching by means of physical force. By pushing her onto the couch, he was able to force himself on her until she could get away. Thus, the unlawful restraint was “‘something more than the exertion of physical effort required to commit the prohibited sexual act.’” (Arnold, supra, 6 Cal.App.4th at p. 28.) The evidence was thus sufficient to support the court's finding that J.V. committed sexual battery by restraint in violation of section 243.4, subdivision (a).
IV. Section 654
Lastly, defendant contends, and the People concede, the juvenile court erred by not staying the term of confinement on count 1, the residential burglary, pursuant to section 654.
“Burglary consists of entry into a house or other specified structure with the intent to commit a felony. [Citation.] Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, … section 654 will permit punishment for one or the other but not for both. [Citations.]” (People v. Centers (1999) 73 Cal.App.4th 84, 98 99.) Accordingly, we accept the People’s concession and will stay the term of confinement on count 1.
DISPOSITION
The juvenile court shall modify its dispositional orders to reflect that the term of confinement on count 1, residential burglary (§§ 459, 460, subd. (a)), is stayed. In all other respects, the juvenile court’s findings and orders are affirmed.
WE CONCUR: Cornell, Acting P.J., Dawson, J.