P. v. Haji

Filed 10/16/09 P. v. Haji CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed in part; reversed in part.

A jury convicted Aweis Haji of two counts of lewd and lascivious acts on a child (Pen. Code,  288, subd. (a)).[1] One of these counts alleged Haji penetrated the anus of the child, and the other count alleged Haji penetrated the vagina of the child. With respect to the count involving anal penetration, the jury also found that Haji had substantial sexual conduct with the victim ( 1203.066, subd. (a)(8)) and caused her bodily injury (id., subd. (a)(2)). The jury did not make those findings with respect to the other section 288, subdivision (a) count.[2] The trial court sentenced Haji to the upper term of eight years on the section 288, subdivision (a) count involving anal penetration and a consecutive two-year term on the other section 288, subdivision (a) count.

Haji appeals, contending there was insufficient evidence to support his conviction on the section 288, subdivision (a) count involving molestation of the vaginal area. Haji also contends the court committed instructional error and his sentence violated section 654's prohibition against double punishment.

We find that there was insufficient evidence to sustain the conviction on the section 288, subdivision (a) count involving vaginal molestation and therefore reverse the judgment as to that conviction. Otherwise, we affirm.

FACTS

Haji was a member of the Bantu Somali community living in San Diego, as was the five-year-old victim and her family.

On the afternoon of September 3, 2006, F.H., the mother of the victim (Mother), asked Haji to repair her television and connect it to the VCR; she offered to pay him $5. After Haji finished the repair, he asked for cigarettes in addition to the $5. Mother's husband agreed and went to the store to get cigarettes for Haji. While the husband was gone, Haji asked to use the bathroom. Mother showed Haji where the bathroom was, returned to the living room and watched a videotape to make sure the television and VCR were working properly.

Meanwhile, I.K., the five-year-old daughter, was sleeping in the bedroom, which was directly across from the bathroom. After about 15 minutes, Haji returned to the living room. About the same time, the husband returned from the store with cigarettes for Haji. Haji said he wanted a different brand of cigarettes and suggested that he and husband go back to the store and exchange the cigarettes.

After Haji and the husband left the apartment, I.K. entered the living room. She leaned on a table and then lay down on the floor. She told Mother: "Aweiso put some milk on me." I.K pointed to her lower back area. I.K. said "Aweiso put milk on my behind." Mother checked the dress I.K. was wearing and found it damp. When Mother rolled up the bottom of the dress, she found a milky-white substance on the dress. I.K.'s back, buttocks and vaginal area were wet.

When Haji and the husband returned, Mother confronted Haji, asking what he had done. Haji responded: "I didn't do anything." Haji added that if Mother and her husband believed that he had done something wrong, they should take I.K. to the hospital. Mother and her husband met with the elders of the Somali community, who decided to contact the police. Prior to that, I.K. used the bathroom and Mother cleaned the child's buttocks and genital area with water.

At Paradise Valley Hospital, Dr. Beena Wycliffe, the emergency room physician on duty, performed a "quick-look exam" of I.K.'s anal and pelvic areas. Wycliffe observed a tear in the anal area along with a small amount of blood and swelling of the skin. Wycliffe reported that I.K.'s hymen was not present, indicating there had been vaginal penetration. Wycliffe recommended that I.K. be transferred to Children's Hospital for a more thorough examination.

Dr. Joyce Adams, a board certified pediatrician specializing in child abuse, examined I.K. at Children's Hospital. Adams noted two anal fissures and a red, abraded appearance of tissue inside the rectum; these observations particularly, the fissures led the doctor to conclude that the anus had been penetrated. In contradiction of Dr. Wycliffe's finding, Dr. Adams reported I.K.'s hymen was intact, but that there was an abrasion underneath the interior labia, next to the hymen, which might have been indicative of some type of trauma. The doctor also found clear yellowish secretions on the external labia, which could have been vaginal secretions or urine. Dr. Adams did not see any evidence of sperm or semen. No sperm or semen was detected on interior and exterior swabs of I.K.'s vaginal and anal areas.

About two weeks later, Dr. Adams saw I.K. again for a follow-up examination. The anal fissures had healed, but the abrasion next to the hymen "really looked about the same," Dr. Adams testified. "And so my conclusion at that time was that it probably wasn't an abrasion but just some nonspecific redness in that area." Dr. Adams further said the redness near the hymen was "probably not" the result of trauma and there was no other evidence of abuse in the vaginal area.

Police forensic scientists found semen and sperm stains on the dress I.K. was wearing at the time of the incident. DNA testing showed that Haji was a "very likely" donor of the sperm found on the dress. The possibility of a match was 1 in 1.5 quintillion in the African-American population. No evidence was presented whether the semen/sperm stains were on the front or back of the dress.

At trial, I.K., then six years old, testified that Haji "put milk" on "my butt." I.K. demonstrated the location by pointing to the buttocks area of a doll. I.K. said Haji entered the bedroom where she was sleeping on her stomach and went on the bed "just . . . a little bit." Haji did not touch her with his hands or touch her arms. I.K. did not know what happened, but it hurt "my butt." I.K. did not know how Haji got the "milk" on her.

DISCUSSION

Haji contends the evidence was insufficient to support two convictions of lewd and lascivious conduct on a child. Although Haji does not challenge the sufficiency of the evidence to support the conviction involving the penetration of the child's anus, he claims there is no substantial evidence that he committed the separate and distinct act of penetrating the child's vagina, as alleged in the other section 288, subdivision (a) count, or otherwise molested the child in the vaginal area. We agree.

In assessing Haji's evidentiary challenge, we review the entire record in the light most favorable to the judgment to determine whether there is substantial evidence to support the trial court's findings. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Substantial evidence is, of course, evidence of solid value, which reasonably inspires confidence. (People v. Marshall (1997) 15 Cal.4th 1, 34.) In order to set aside a judgment on appeal, it must be shown that under no hypothesis whatsoever is there sufficient evidence to support the conclusion of the trier of fact. (People v. Redmond (1969) 71 Cal.2d 745, 755.) " 'Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.' " (People v. Green (1995) 34 Cal.App.4th 165, 180.) However, "[e]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact." (Redmond, at p. 755.) Nor does speculation qualify as substantial evidence. (People v. Waidla (2000) 22 Cal.4th 690, 735.)

Section 288, subdivision (a) states in part:

"Any person who willfully and lewdly commits a lewd or lascivious act, including [criminal offenses], upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ."

Section 288 requires a touching with lewd or lustful intent. (People v. Austin (1980) 111 Cal.App.3d 110, 113; see also People v. Martinez (1995) 11 Cal.4th 434, 442 (Martinez) [adhering to "overwhelming weight of authority that section 288 is violated by 'any touching' of an underage child committed with the intent to sexually arouse either the defendant or the child"].) Section 288, subdivision (a) does not require penetration. (In re Asencio (2008) 166 Cal.App.4th 1195, 1206 [contact between defendant's penis and child's vagina was more than enough to establish lewd and lascivious act].)

In Martinez, supra, 11 Cal.4th 434, our Supreme Court observed:

"[S]ection 288 was enacted to provide children with 'special protection' from sexual exploitation. . . .  The statute recognizes that children are 'uniquely susceptible' to such abuse as a result of their dependence upon adults, smaller size, and relative naivet. . . . The statute also assumes that young victims suffer profound harm whenever they are perceived and used as objects of sexual desire." (Id. at pp. 443-444, citations omitted.)

To provide children with broad protection from such abuse, "section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the 'gist' of the offense has always been the defendant's intent to sexually exploit a child, not the nature of the offending act." (Id. at p. 444.)

Here, Haji does not contest the sufficiency of the evidence to support his conviction of the section 288, subdivision (a) count involving anal penetration. Indeed, the evidence supporting the conviction on that count was overwhelming. Dr. Adams, a board certified pediatrician specializing in child abuse cases, examined I.K. and found two anal fissures as well as tissue inside the rectum that appeared red and abraded. Dr. Adams was unequivocal in her conclusion that I.K.'s anus had been penetrated. Additionally, I.K., who had been sleeping face down when the incident occurred, consistently complained that Haji had poured milk on her "butt" and that she experienced pain in that area. Haji's semen and sperm were found on the dress I.K. was wearing that day. The prosecution met its burden to prove Haji was guilty of this section 288, subdivision (a) count that is, he willfully touched I.K. in a lewd and lascivious manner with the requisite specific intent.

In contrast to the substantial evidence supporting the count involving anal penetration, there was a virtual dearth of evidence supporting the count involving vaginal penetration. Dr. Wycliffe, the emergency room physician at Paradise Valley Hospital who conducted a "quick-look exam," opined that there had been vaginal penetration based on her failure to see I.K.'s hymen. Dr. Wycliff's opinion in this regard was conclusively rebutted by Dr. Adams, who, using magnifying instruments, found I.K.'s hymen intact. Furthermore, after a follow-up examination, Dr. Adams concluded that what initially she had thought was an abrasion near the hymen, which might be indicative of abuse, was not an abrasion and there was no medical evidence of abuse in the genital area. We reject the Attorney General's arguments that there was substantial evidence that Haji committed a lewd act that involved touching I.K.'s vagina either by his penis or by his semen.

Significantly, the evidence showed that Haji only committed one act to one part of I.K.'s body, namely, her anus. In other words, there was no substantial evidence that Haji performed an act involving I.K.'s genital area. There was no evidence that the position of I.K.'s body on the bed lying on her stomach had changed. I.K. did not testify or tell anyone that she rolled over. I.K. did not testify or tell anyone that Haji "poured milk" on the front of her body. I.K. did not testify or tell anyone that Haji "poured milk" on her more than once. There was no evidence that the semen stain was on the front part of I.K.'s dress.

In fact, other than I.K.'s genital area being wet, as reported by Mother, there was no evidence that the child was abused or touched in the vaginal area. In this case the cause of the wetness felt by Mother was unknown. How that area became wet and whether the wetness was semen were not proved at trial. The wetness could have been, as Dr. Adams's testimony suggested, urine or vaginal secretions. Dr. Adams did not observe sperm or semen in the vaginal area during her examination, and none was detected during testing on the vaginal swabs.

The wetness also could have been attributed to some of Haji's semen, which he ejaculated while sodomizing I.K., spilling over from the back to the front of her body.[3] However, such a theory which essentially explains the wetness in the vaginal area as a gravity-induced transfer of semen would not support a second count of violating section 288, subdivision (a), because under this theory, Haji committed only one lewd act the sodomy. Without substantial evidence Haji committed a second act, there cannot be two convictions. (Cf. People v. Jimenez (2002) 99 Cal.App.4th 450, 453-456 [child molester who fondled several separate portions of his victim's body was properly convicted of several counts of child molestation under section 288].) Gravity is not enough; gravity cannot substitute for an act by Haji.

Therefore, it is not surprising that the Attorney General rejects the hypothesis that the jury based its guilty verdict on the spillover of the semen. Rather, the Attorney General insists that there is substantial evidence that Haji committed a lewd and lascivious act involving I.K.'s vagina. We are not persuaded.

Based on all the evidence presented in this case, it would be pure speculation to conclude that the wetness in the vaginal area reported by Mother was attributed to sperm or semen by Haji. "But speculation is not evidence, less still substantial evidence." (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on another point by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) We conclude the wetness in the vaginal area of the child does not constitute substantial evidence that Haji committed a lewd and lascivious act involving the child's vaginal area. Therefore, insufficient evidence supported Haji's conviction of count 4 the section 288, subdivision (a) count involving the child's vaginal area. Count 4 must be reversed for lack of sufficient evidence.[4]

DISPOSITION

The judgment of conviction on count 4 is reversed. Accordingly, we reduce Haji's sentence from 10 years to eight years in state prison. The trial court shall amend the abstract of judgment accordingly and forward an amended copy to the California Department of Corrections and Rehabilitation.

In all other respects, the judgment is affirmed.

IRION, J.

WE CONCUR:

McINTYRE, Acting P. J.

AARON, J.

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[1] All further statutory references are to the Penal Code.

[2] The jury acquitted Haji of one count of aggravated sexual assault of a child (sodomy) and one count of aggravated sexual assault of a child (rape). ( 269, subd. (a)(3), (1).)

[3] The jury may very well have reached this conclusion. The jury's first note to the trial court read: "[I]s semen touching the body considered 'touching'[?]"

[4] It is unnecessary for us to discuss Haji's assignment of errors concerning instructional error and double punishment because retrial on the same charge is impermissible if a reversal is based on insufficiency of the evidence. (Burks v. United States (1978) 437 U.S. 1, 18 [holding that "the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient," and that the "only 'just' remedy available for that court is the direction of a judgment of acquittal"].)