P. v. Gonzalez
Filed 6/21/13 P. v. Gonzalez CA4/3
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
>
THE PEOPLE, Plaintiff and Respondent, v. VICTORINO RODRIQUEZ GONZALEZ, Defendant and Appellant. | G047260 (Super. Ct. No. 11CF1841) O P I N I O N |
Appeal from a judgment
of the Superior Court
of
County, Patrick Donahue, Judge. Affirmed.
Law Offices of Allen G.
Weinberg and Allen G. Weinberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Steve Oetting and Lise S. Jacobson, Deputy
Attorneys General, for Plaintiff and Respondent.
* * *
The jury found appellant
Victorino Gonzalez guilty of one count of sexual
intercourse with a child 10 years of age or younger (Pen. Code,
§ 288.7, subdivision (a))
name="_ftnref1" title="">[1]
and of three counts of sexual penetration of a child 10 years of age or younger
(§ 288.7, subd. (b)). Gonzalez was
sentenced to a term of 25 years to life on the intercourse count (count one), a
consecutive term of 15 years to life for one of the penetration counts (count
two), and two concurrent terms of 15 years to life for the other two
penetration counts (counts three and four).
Gonzalez was the
victim’s stepfather, living in her mother’s house and began molesting her just
before she turned nine years old. The
molestations continued until, in the victim’s words, she was “like ten.†There is no question there was substantial
evidence of actual sexual penetration at least once, since the victim testified
Gonzalez’s penis went “inside†of her vagina.
But the victim also
mentioned a few times in an initial police interview that “he put weenie on†–
as distinct from “in†– “my pussy,†and from this statement Gonzalez theorizes
that the trial judge should have sua sponte instructed the jury about the
possibility of finding Gonzalez guilty of attempted
sexual intercourse with a child under the age of 10. Indeed, the absence of an attempt instruction
is Gonzalez’s only argument in this appeal.
We will accept, for sake
of argument, the idea that the victim’s statement Gonzalez put his penis “onâ€
her “pussy†does not, by itself, show a completed crime under section 288.7,
subdivision (a). That is, “contact†by
itself does not necessarily show even
the “slight†amount of penetration of the female sexual organs required to come
within the definition of “sexual intercourse,†as the words are used in section
288.7, subdivision (a). (See
958 [“the term ‘sexual intercourse’ is commonly understood as vaginal
penetration and needs no elaborationâ€]; People
v. Dunn (2012) 205 Cal.App.4th 1086, 1097-1098 [conviction of section
288.7, subdivision (a) “required penetration†of victim’s labia majoraâ€]; e.g.,
People v. Quintana (2001) 89
Cal.App.4th 1362, 1371 [“contact with hymen as well as the clitoris and the
other genitalia inside the exterior of the labia majora constitutes ‘sexual
penetration’ within the meaning of section 289â€].)
However, to justify an
attempt instruction concerning a crime that involves sexual intercourse, there
must have been substantial evidence
the defendant intended to commit sexual intercourse with his victim but was
“unsuccessful in the attempt.†(
674 [rejecting argument that sua sponte attempted rape instruction was required
where there was no evidence “that defendant intended to commit rape but was
unsuccessful in the attemptâ€].) And in
this case there is nothing to indicate Gonzalez made any attempts to have intercourse with the victim but was otherwise
unsuccessful. At the risk of indelicacy,
it is completely possible for a penis to be both “on†and “in†the female
genitalia during the same act of sexual intercourse.
In his reply brief,
Gonzalez asserts the evidence was “equivocal as to whether appellant completed
the act of sexual intercourse,†which appears to be a veiled allusion to some
sort of erectile dysfunction on his part.
But there is absolutely no evidence that Gonzalez attempted some sort of
penetration – as distinct from just making contact – but was otherwise
unsuccessful. For example, there was no
evidence that one of the other children also sleeping in the same room as the
victim woke up during one of Gonzalez’s molestations and interrupted what
Gonzalez intended to do.
We also agree with the
Attorney General that any arguable error in failing to instruct on the lesser
included crime of attempted sexual intercourse on a child under the age of 10
was harmless. The standard is set out in
People v. Koontz (2002) 27 Cal.4th
1041, 1085-1086: “Error in failing to
instruct the jury on a lesser included offense is harmless when the jury
necessarily decides the factual questions posed by the omitted instructions
adversely to defendant under other properly given instructions.†Here, the jury was instructed about the possibility of finding Gonzalez only
guilty of battery, which it easily could have done if it was willing to credit
the defense theory that Gonzalez had only put his penis, sans even slight
penetration, on, rather than in, the victim’s genital area.
The
judgment is affirmed.
BEDSWORTH,
J.
WE CONCUR:
RYLAARSDAM,
ACTING P. J.
THOMPSON, J.
name="_ftn1" title=""> [1] All statutory references in this
opinion are to the Penal Code.
name="_ftn2" title=""> [2] She also told a Santa
Ana police officer (which interview was audiotaped and
later heard by the jury) that Gonzalez “put his weenie†“all the way in†her
vagina.
