Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Ct. No. SCE266629 Laura W. Halgren, Judge.
IRION, J.
A jury convicted defendant Muhammad Jameel Hassan of assault with intent to commit rape (Pen. Code, § 220; count 1), felony sexual battery (§ 243.4, subd. (a); count 2), misdemeanor sexual battery (§ 243.4, subd. (a); count 3), and false imprisonment (§§ 236 & 237, subd. (a); count 4). The court found true the allegation that Hassan had served a prior prison term within the meaning of section 667.5, subdivision (b). It sentenced Hassan to eight years and eight months in prison: the upper term of six years in count 1; one year (one-third the middle term) in count 2; time served in the county jail in count 3; eight months (one-third the middle term) in count four; and one year for the prior prison term enhancement.
Undesignated statutory references are to the Penal Code.
On appeal, Hassan argues that there is insufficient evidence to show he had the requisite intent to commit rape in count 1. Applying well-established standards of review, we conclude there is substantial evidence from which a reasonable jury could find beyond a reasonable doubt that Hassan was guilty of assault to commit rape. (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).) We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, Ann K., stopped at a neighborhood liquor store around 5:40 p.m. on December 29, 2005. When she returned to her car, Hassan approached and asked the victim for the time. She opened the door of her car, checked the clock, and responded to Hassan's question. Hassan continued to question the victim as he moved from the sidewalk to a position closer to her. He asked how old she was, if she had a boyfriend, and whether she wanted to "get high" with him. Standing "right in front of [the victim]," Hassan asked if she "had ever been with a Black guy before." The victim responded, "No."
At that point, Hassan tried to kiss the victim as she attempted to move away. She told Hassan that she did not want to be kissed. He pushed the victim against her car, leaned on her, and began kissing her neck and chest. She estimated that Hassan was approximately "six-five" and weighed 250 pounds. The victim was "five-one" and weighed 155 pounds. When a group of people walked by, Hassan told the victim to "pretend like [she] was [his] girlfriend and not to embarrass him." She responded, "Fuck you," but did not call for help because she was scared. The victim stated at trial that "he was such a big guy, that he probably could hurt [her] if [she] made him angry enough, so [she] was doing [her] best to keep him from getting angry."
Hassan became more aggressive and used more force as he continued to bite and kiss the victim's neck and chest. When she tried to get into her car, Hassan leaned his body on top of her. He pulled down the victim's shirt, exposed her right breast, and bit the nipple. Hassan rubbed the victim's groin on top of her clothes and tried to put her hand on his crotch. The victim continued to tell Hassan "No" and kick her legs in an attempt to get him off. When Hassan started to move out of the way, the victim closed the car door, started the car, and drove home.
The victim's mother called 911 and the victim reported what happened. When sheriff's officers arrived, the victim provided a description of her assailant. The sheriff's detective took her to the hospital for a Sexual Assault Response Team (SART) examination. Nearly a year later, the sheriff's crime lab received notice that DNA from the assailant's saliva matched separate DNA samples obtained from Hassan.
Hassan's trial testimony was consistent with the victim's testimony regarding the first moments of their encounter. He acknowledged that he thought the victim was attractive when he saw her coming out of the liquor store. Hassan did not dispute approaching the victim, asking her "flirtatious" questions, including whether she had ever "been with a Black man," and kissing her on the cheek, ears, neck and upper chest. However, he gave a different account of the victim's response. Hassan testified that the victim kissed him back and at no time backed away. Nor did she stop him when he started kissing her chest area, but told him to " 'leave something to the imagination.' " When Hassan asked the victim for her phone number, she told him that she lived with her mother and did not give out the home phone number. She did, however, agree to take Hassan's number. Hassan testified that he got a pen from his car to write it down for her. The victim told Hassan that she had to get back to her family, but said she would call him.
DISCUSSION
Hassan argues that the evidence is insufficient to support the jury's implied finding that he acted with the intent to rape Ann K. in count 1. He contends that "[t]he facts as presented . . . support a flirtatious episode rather than a rape." There is no merit in Hassan's argument.
When a criminal defendant challenges the sufficiency of the evidence on appeal, the reviewing court "must 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. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 (Kraft), citing Johnson, supra, 26 Cal.3d at p. 578.) Consistent with these principles, the reviewing court gives deference to the jury's determination regarding witness credibility, since that question remains within "the exclusive province" of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "Thus, ' "[i]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]" ' [Citation.]" (Kraft, supra, 23 Cal.4th at p. 1054.)
The essential element of assault with intent to commit rape is the intent to commit the act against the will of the complainant. (People v. Maury (2003) 30 Cal.4th 342, 400.) " ' "The offense is complete if at any moment during the assault the accused intends to use whatever force may be required." ' " (Ibid.) " '[I]f there is evidence of the former intent and acts attendant to the execution of that intent, the abandonment of that intent before consummation of the act will not erase the felonious nature of the assault.' " (People v. Davis (1995) 10 Cal.4th 463, 509-510.) The testimony of the victim alone, if believed by the jury, is sufficient to support conviction. (People v. Oster (1953) 121 Cal.App.2d 750, 752-753 (Oster).)
In their opening briefs, both parties improperly cite Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 890 to show the elements of assault to commit rape. CALCRIM instructions are prepared by a committee of the Judicial Council. Although the committee aims to provide jury instructions that are "legally accurate" in accordance with case law, the instructions are not legal precedent. (Id., Preface, vol. 1, p. xi.)
In People v. Bradley (1993) 15 Cal.App.4th 1144, the defendant grabbed the 16-year-old victim in front of the ice cream store where she worked. He took her to a secluded area in back of the store, kissed her on the neck, fondled her breasts, and moved his hand under her shorts while pressing his body against her. During the assault, the defendant's companion quipped that he would not mind getting a "piece of that." The defendant responded, " 'Don't worry, I will.' " (Id. at p. 1150.) He and his companion fled when a car approached and the victim kicked defendant in the shins. (Ibid.) Based on inferences the jury could draw from the defendant's conduct, including the words he had spoken, the reviewing court held that there was "ample objective evidence" supporting the jury's finding that the defendant intended to complete a sexual act during his encounter with the victim. (Id. at pp. 1154-1155.)
In Davis, supra, 10 Cal.4th 463, the California Supreme Court upheld the defendant's conviction of assault to commit rape or sodomy against the claim of insufficient evidence of intent. In that case, the victim and defendant had met for drinks after the victim got off work. Later in the evening, the defendant instructed the victim to drive to a secluded area where he fondled her breasts, "slobbered all over her neck," grabbed her crotch and tried to remove her pants. When the victim attempted to get out of the car, the defendant held her shoulder. (Id. at p. 489.) She attempted to get help at a gas station, but defendant dragged her back to the car while she kicked and screamed. When the victim broke free, the defendant disabled her car and fled. (Id. at pp. 489-490.) The Supreme Court held that the jury could reasonably reject defendant's argument that the incident " 'had the earmarks of a conventional date' " and " 'at most showed an overly forcible seduction that perhaps crossed the line of sexual battery but did not go further.' " (Id. at p. 510.)
Here, the encounter began with what could be viewed as conventional and benign flirtatious questions. However, Hassan's subsequent words and actions support the reasonable inference that defendant intended to force the victim to have sexual intercourse with him. Indeed, the question whether the victim had "ever been with a Black guy" took on a more sinister meaning when considered with Hassan's increasing use of force as he kissed her neck, fondled her right breast, bit the nipple and rubbed her groin while the victim tried to fight him off.
Hassan argues that if he had intended to commit rape, he would not have done it under the circumstances of this case. Without citation to the record, he states that "[m]ost of the interaction between the two parties occurred outside of the vehicle," the incident occurred around 6:00 p.m., when "[i]t was daylight" and "the parking lot was crowded." He also notes, again without citation to the record, that the victim did not call for help "even though she personally knew the store clerk," did not honk the car horn, and testified that Hassan did not "attempt to take either of their pants off." Hassan speculates on other scenarios that might have established a stronger showing of the required intent, but misses the point. After considering all the testimony, the jury rejected Hassan's account of the events as not credible. The victim's testimony is sufficient evidence to support the jury's findings. (Oster, supra, 121 Cal.App.2d at pp. 752-753.)
The failure to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears" violates California Rules of Court, rule 8.204(a)(1)(C). If a brief does not comply with this rule, the reviewing court may return the brief for correction and refiling, strike the brief with leave to file a new brief, or disregard the noncompliance. (Cal. Rules of Court, rules 8.204(e) & 8.360(a).) The lapse is problematical where, as here, the appellant challenges the sufficiency of the evidence but leaves the court with the task of locating in the record the facts to support that claim.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., O'ROURKE, J.