Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CF0999 David A. Hoffer, Judge. Affirmed.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Gustavo Adolfo Piedrasanta appeals from a judgment after a jury convicted him of numerous sexual offenses against his daughter, Jane Doe. He argues insufficient evidence supports one count of aggravated sexual assault of a child and the jury’s finding he had substantial sexual conduct with a child as to another count. We disagree and affirm the judgment.
FACTS
Background
On April 7, 2006, Jane Doe, who was 12 years old, told her school principal Piedrasanta had been molesting her. Officer Abel Alcantar interviewed Jane Doe at the school. That same day, a social worker of the Child Abuse Services Team (CAST), Adrianna Ball, interviewed Jane Doe. After the interview, Dr. Frederic Bruhn performed a sexual assault examination.
As a result of the investigation, an information charged Piedrasanta with the following: aggravated sexual assault of a child (Pen. Code, § 269, subd. (a)(1)) (count 1); lewd act upon a child under the age of 14 (§ 288, subd. (a)) (count 2); aggravated sexual assault of a child (§§ 269, subd. (a)(1), 261, subd. (a)(2)) (count 3); lewd act upon a child under the age of 14 (§ 288, subd. (a)) (count 4); lewd act upon a child under the age of 14 (§ 288, subd. (a)) (count 5); lewd act upon a child under the age of 14 (§ 288, subd. (a)) (count 6); and lewd act upon a child under the age of 14 (§ 288, subd. (a)) (count 7). As to counts 2, 4, 5, 6, and 7, the information alleged Piedrasanta had substantial sexual conduct with a child (§ 1203.066, subd. (a)(8)). The information alleged he committed counts 2 and 4 with force (§ 1203.066, subd. (a)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, the prosecutor offered the testimony of Jane Doe, her mother, Bruhn, and Alcantar, among others. Piedrasanta did not testify at trial, and rested on the state of the evidence. During closing argument, defense counsel argued Jane Doe was believable and the jury could convict him on counts 2, 4, 5, 6, and 7. However, defense counsel argued the jury could not convict him of counts 1 and 3 because there was insufficient evidence of penetration.
The jury convicted Piedrasanta of all counts and found all the enhancement allegations true. The trial court sentenced Piedrasanta to 40 years to life in prison as follows: 15 years to life on count 1, 15 years to life on count 3, six years on count 5, and two years on counts 6 and 7.
Because the only issue in this case is whether there was sufficient evidence of penetration, we will focus on the September 2004 and January 2006 events.
Trial
The prosecutor offered Alcantar’s testimony. Alcantar testified that after Jane Doe described an incident occurring the previous day, and one occurring the prior year, she stated Piedrasanta tried to have sex with her on two occasions. Jane Doe explained that in September 2004, she was in her bedroom and her mother was in the shower. Piedrasanta walked into her bedroom, grabbed her arms, and pulled down her pants and underwear. He pulled down his pants and tried to put his erect penis insider her vagina. Because Jane Doe was struggling, “he was only able to get the tip of his penis inside of her vagina.” Jane Doe pushed him away and got dressed, and he told her not to tell her mother. Jane Doe stated that four months later while her mother was in the shower Piedrasanta again forcibly removed her pants and underwear. As he tried to put his erect penis insider her vagina, Jane Doe tried to keep her legs together and Piedrasanta tried to pull them apart. She escaped without Piedrasanta having penetrated her.
The prosecutor offered a videotape and transcripts of the CAST interview. Jane Doe told Ball that Piedrasanta started touching her “private area” when she was 10 or 11 years old. She told Ball that Piedrasanta touched the inside of her private area about five times. She also said he had licked her private area numerous times.
With respect to the January 2006 incident, Jane Doe stated Piedrasanta walked into her bedroom wearing only his underwear while her mother was in the shower. He pushed her onto the bed and took of her pants and underwear, and he took off his underwear. When Ball asked her whether his penis touched her private area, she said yes, and the following colloquy occurred:
“Ball: [Okay] alright... and how did that feel when he put his penis on your private area?
“[Jane Doe]: It hurt.
“Ball: It hurt. [Okay]... well did it just on the outside or did it go on the inside?
“[Jane Doe]: It kinda [sic] went in.
“Ball: It kind of went in around the inside? [Okay] how was his penis when he was doing that?
“[Jane Doe]: It was hard.”
Jane Doe added that as “he tried to get it in[]” she “back[ed] off so so [sic] he [would not] get it in.” Piedrasanta grabbed her hands and told her not to back off. When her mother got out of the shower, Piedrasanta put his underwear on and went to take a bath. Jane Doe put her clothes on and went downstairs.
Jane Doe then stated that during the September 2004 incident, Piedrasanta did the same thing to her. She explained, “He tried to put it in [her].” When Ball asked how far he put his penis inside her, she replied, “Like only half.” Jane Doe stated that she was menstruating and her “period” got on him and his underwear. Jane Doe told Ball she never told her mother what had happened because Piedrasanta told her not to and she was afraid of him.
The prosecutor offered Jane Doe’s testimony. She testified Piedrasanta started touching her “bottom” and “vagina” when she was five or six years old and started licking her vagina when she was 11 or 12 years old. As to the September 2004 incident, Jane Doe testified Piedrasanta tried to put his hard penis inside her. She stated he did not put his penis inside her, but when he put his penis “on top,” blood got on his penis because she was on her period. With respect to the January 2006 incident, Jane Doe said she was in her bedroom and her mother was in the shower when Piedrasanta came into her bedroom. He took off her pants and underwear. As she lay on the bed, he took off his pants and tried to put his hard penis inside her vagina. She stated he did not put his penis inside her vagina. She said his penis was “on top” of her vagina. On cross-examination Jane Doe testified Piedrasanta’s penis did not enter her vagina. She did not remember telling Alcantar his penis entered her vagina, but she did say “the tip of [his] penis [went] into her vagina[.]” On redirect examination, with respect to the September 2004 incident, Jane Doe testified Piedrasanta rubbed his penis against the part of her vagina where the blood comes out. As to the January 2006, incident, she explained he rubbed his penis against “the front” of her vagina and she felt pressure.
Bruhn testified he found no evidence of sexual trauma but that it was common in children because the sexual activity normally did not cause visible physical injuries. He also explained the anatomy of the female genitalia, including the external genitalia.
Veronica Thomas, a clinical, forensic psychologist, testified concerning child sexual abuse accommodation syndrome. She explained that children who are sexually abused over a period of time by a family member keep the abuse a secret. For these children, disclosure is the “beginning of a process, and it’s rarely a complete one at first.” The child will gradually disclose details of the abuse over time. Thomas opined Jane Doe was suffering from the syndrome based on her review of the interviews.
DISCUSSION
Piedrasanta claims there was insufficient evidence of sexual penetration supporting his conviction on count 3 and the jury’s true finding on the substantial sexual conduct enhancement on count 4. Not so.
“‘“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.”’ [Citations.] ‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.] The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 104 (Valdez).)
Section 263 states “[a]ny sexual penetration, however slight, is sufficient to complete the crime[]” of rape. In People v. Karsai(1982) 131 Cal.App.3d 224 (Karsai), the court rejected defendant’s argument that vaginal penetration is necessary to commit rape. The court explained, “The penetration which is required is sexual penetration and not vaginal penetration. Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.” (Id. at p. 232.)
Karsai was disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.
In People v. Quintana (2001) 89 Cal.App.4th 1362, 1364, 1366 (Quintana), the court applied the Karsai rape penetration standard to the offense of “foreign object penetration” and equated the two penetrations. (Quintana, supra, 89 Cal.App.4th at pp. 1364, 1366.) The court explained that the external female genitalia includes, among other things, the exterior vaginal lips (labia majora) and the clitoris. (Id. at p. 1371.) The court reasoned, therefore, that any contact inside the exterior vaginal lips, including with the clitoris, constitutes the penetration required for object penetration and for rape, vaginal penetration is unnecessary. (Id. at pp. 1366, 1371.)
For purposes of section 1203.066, “‘[s]ubstantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.”
Piedrasanta relies on Jane Doe’s statements to Alcantar and her testimony on direct examination to support his contention insufficient evidence supports the finding his penis penetrated his daughter’s vagina in January 2006. We disagree. There was sufficient evidence for the jury to reasonably conclude Piedrasanta sexually penetrated Jane Doe in January 2006. It is true that in January 2006 during her first interview concerning the molestations Jane Doe told Alcantar that Piedrasanta did not put his penis inside her vagina. However, when she spoke with Ball later that same day, she told Ball that Piedrasanta’s penis “kinda [sic] went in.” And after claiming on cross-examination Piedrasanta did not penetrate her, on redirect examination, Jane Doe explained he rubbed his penis against “the front” of her vagina and she felt pressure.
Piedrasanta paints this evidence as ambiguous at best. He essentially asks us to reweight the evidence and substitute our judgment for that of the jury, which we cannot do. (Valdez, supra, 32 Cal.4th at p. 104.) Additionally, it is clear from our review of the record Jane Doe had a difficult time recounting the details of the repeated molestations and had difficulty explaining the physical sensations she felt as her father sexually abused her. Based on the evidence Piedrasanta’s penis “kinda [sic] went in[]” and Jane Doe felt pressure when he rubbed his penis against “the front” of her vagina, and Thomas’s testimony concerning child sexual abuse accommodation syndrome, it was certainly reasonable for the jury to conclude Piedrasanta sexually penetrated her exterior vaginal lips. That Jane Doe stated Piedrasanta tried to get his penis inside her does not mean he was unsuccessful on the first attempt and because she struggled, she broke free from him. Therefore, there was sufficient evidence supporting count 3 and the finding accompanying count 4 that Piedrasanta had substantial sexual contact with Jane Doe.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.