Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1261592 Brian E. Hill, Judge.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
German Acosta appeals his conviction for aggravated sexual assault of a child (rape; Pen. Code, § 269, subd. (a)(1)), forcible lewd act upon a child (§ 288, subd. (b)(1)), and lewd act upon a child (§ 288, subd. (a)). The trial court denied probation and sentenced appellant to 15 years to life state prison. We affirm and reject the argument that the jury was not adequately instructed on sexual penetration. (§ 263; People v. Rundle (2008) 43 Cal.4th 76, 150-152 [disapproved on other grounds in People v, Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
All statutory references are to the Penal Code.
Facts
On July 26, 2008, appellant (age 33) slept over at his brother's house where M. (age 12) lived. Sometime after 10:00 p.m., appellant walked into M.'s bedroom and asked if she had a boyfriend. M. replied "no." Appellant giggled and left the room.
Appellant returned after M. fell asleep. Fondling her knee, appellant moved his hand up her thigh. M. woke up but was too scared to scream. Appellant smiled and reached under M.'s gown and bra. M. pushed his hands away.
Appellant got up and returned two or three minutes later. Forcing M. down on her knees, appellant tried to insert his penis in her "butt" M. feared appellant would hit her and was really scared. Appellant pulled up his pants and left the room.
Appellant returned a few minutes later, grabbed M. by the ankles, and pulled her legs apart. M. pushed and kicked to no avail. Appellant inserted his penis about half an inch inside M.'s vaginal lips for eight to ten seconds as M. kicked.
Appellant used the bathroom, returned, and masturbated in front of M. He had an erect penis and the foreskin was pulled back. Grabbing M.'s wrist, appellant ejaculated on the palm of her hand and made her pour the sperm into his hand.
Appellant left early the next morning, but before leaving, let M. wash her hands and gave her $20.
M. was confused and nauseous, felt like a prostitute, and bathed twice. She was too afraid to tell her parents but wrote down what happened. Stephanie, M.'s friend, read the note, talked to M., and reported the rape.
On July 28, 2008, M.'s mother found a $20 bill next to the bed.
M. underwent a SART exam and complained about a burning sensation when she urinated. Doctor Elliot Shulman testified the burning was consistent with a penis penetrating the labia majora and described the anatomical landmarks. Such a penetration would irritate the tissue surrounding the urethra and cause pain while urinating (dysuria).
Appellant denied touching M. or exposing his penis. Appellant said that M. has never seen his penis but could not explain how M. knew he was uncircumcised. Appellant claimed that he drank 12 beers, fell asleep on the couch, and hugged and kissed M. when he left the next morning.
Sexual Penetration
Appellant contends that the trial court failed to adequately instruct on "penetration" with respect to count one for aggravated sexual assault. The jury received pattern instructions on rape by force or fear and aggravated sexual assault. (CALCRIM 1000, 1123.) The jury was instructed inter alia that the prosecution must prove that "defendant had sexual intercourse with a child, " that the child did not consent to the intercourse, and that "defendant accomplished the intercourse by force, or violence, or duress, or menace, or fear of immediate and unlawful bodily injury to the child.... [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis..." (CALCRIM 1000.)
Appellant did not request a clarifying or supplemental instruction on penetration, thereby forfeiting the alleged error. (People v. Hart (1999) 20 Cal.4th 546, 623.) A defendant may not complain on appeal that an instruction correct in law and responsive to the evidence is too general unless the defendant requested appropriate clarifying or amplifying language. (Ibid.)
The prosecutor argued that "sexual intercourse means any penetration, it doesn't matter how slight, of the vagina or genitalia by the penis. That's the law, any penetration, no matter how slight."
On the merits, appellant makes no showing that he was prejudiced by the instructions give N.M. testified that appellant forced his penis half an inch past the outer lips of her vagina but "it didn't go all the way up where the Tampax goes."
In People v. Karsai (1982) 131 Cal.App.3d 224 (disapproved on other grounds in People v. Jones (1998) 46 Cal.3d 585, 600, fn. 8), the victim testified that defendant pushed his penis between her "lips" but did not accomplish vaginal penetration. (Id., at p. 232.) Defendant claimed that he merely rubbed his flaccid penis against the victim's genitals. (Ibid.) The jury asked the trial court to define when penetration occurs in relation to external female genitalia. (Id., at p. 233-234.) The court instructed that "the word penetrate means to pass, extend, pierce into or through something. Any penetration into the female genitalia constitutes a sexual penetration." (Id., at p. 234.) The Court of Appeal affirmed the rape conviction. (Id., at p. 235.)
Unlike Karsai, the jury did not ask the trial court to clarify when sexual penetration occurs. In Karsai, defendant argued that the instructions failed to explain the difference between rubbing and actual sexual penetration. (Id., at p. 234.) It was a non-issue here because appellant claimed that he did not touch M.'s genitalia or expose his penis. Consistent with section 263, the jury was instructed: "Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required." (CALCRIM 1000)
It is presumed that the jury understood and followed the instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) "Sexual intercourse" is not a technical term with various meanings; juries understand that it requires penetration of a female victim's genitalia. (Id., at pp. 675-676; see also People v. Stitely (2005) 35 Cal.4th 514, 554-555.) "A 'genital' opening is not synonymous with a 'vaginal' opening as appellant's argument assumes. The vagina is only one part of the female genitalia, which also include inter alia the labia majora, labia minora, and the clitoris. [Citations.]" (People v. Quintana (2001) 89 Cal.App.4th 1362, 1367.)
Appellant contends the jury may have been confused because "penetration" is commonly understood to mean "to pass into or through, " i.e., to enter the vagina. (Webster's 10th Collegiate Dict. (1999) p. 858.) Assuming, arguendo, that the jury used such a definition, it would have favored the defense and was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 22-23 [17 L.Ed., 2d 705, 710].)
Appellant argues that it is a close case because there was no DNA or physical evidence of a rape. Sexual penetration, however, may be established by circumstantial evidence. (See e.g. People v. Holt, supra, 15 Cal.4th at p. 669 [affirming rape conviction based on circumstantial evidence].) M. testified that appellant penetrated her vaginal lips but not her vagina. Her testimony was corroborated by the SART exam, by medical testimony that M. would experience burning while urinating, by M.'s prior statements, by the $20 bill, and by appellant's admission that he is uncircumcised.
Appellant's remaining arguments merit no further discussion. A criminal defendant has no due process right to instructions that are cumulative, argumentative, confusing, or misstate the law. (People v. Noguera (1992) 4 Cal.4th 599, 648; People v. Wharton (1991) 53 Cal.3d 522, 570.) Nor has appellant shown that the instructions, as given, denied him a fair trial. (People v. Rundle, supra, 43 Cal.4th at pp. 151-152.)
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.