P. v. McFadden

File 10/12/06 P. v. McFadden CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Turner McFadden of first degree burglary of an inhabited dwelling (Pen. Code, § 459--count one),^[1] acquitted him of burglary with intent to commit rape (§ 459/261, subd. (a)(2)--count two), and could not reach a verdict on a third count of assault with intent to commit rape (§ 220--count three). On retrial, a second jury convicted him of the latter offense.

Sentenced to an aggregate state prison term of five years four months, defendant appeals, challenging only the conviction on retrial of count three--assault with intent to commit rape. Defendant raises claims of instructional and evidentiary error, improper restriction on defense counsel’s closing argument, and ineffective assistance of counsel.

We agree with defendant’s contention that the trial court erroneously failed to instruct on the lesser included offense of attempted rape, but reject defendant’s remaining arguments. We will give the district attorney the option of either retrying the charge in count three, or accepting a conviction of the lesser crime, and shall otherwise affirm the judgment.

FACTUAL BACKGROUND

On June 18, 2004, Regina G., a young law student, was living in a single apartment in the Natomas neighborhood of Sacramento. The upstairs apartment had one front door and a sliding glass door that led to an enclosed balcony. Wearing only her pajama bottoms, she fell asleep about midnight, chaining and locking her front door before retiring. However, she left a window near the sliding glass door open, due to the summer heat.

Around 4:00 a.m., Regina awoke to the movement of the covers on her bed. Upon opening her eyes, she saw a slender and muscular African-American man, later identified as defendant, crawling into bed with her. Defendant wore no clothes from the waist up, leaving her with the impression that he was naked.

After defendant laid his head on the pillow, Regina asked him how he got into her apartment. He replied that the front door was open, which Regina knew was a false statement.

Regina smelled alcohol on defendant’s breath. She introduced herself to him, telling him her name and asking him what his name was. He replied “Mark” or “Marcus.” Defendant said, “I just want to be honest, I just want some pussy because it’s not that easy to get.”^[2] Trying to get out of the situation, Regina told him she had never had sex before and suggested they go into the living room and have some beers. As she sat up on the bed, defendant grabbed her arm.

Regina reiterated her proposal that they go into the living room and talk over a beer. She arose from the bed again, this time unimpeded by defendant, grabbed a T-shirt out of the dresser drawer, and left the bedroom. She walked past the living room and out the front door, which she noticed was open a little bit. When she got halfway down the stairs of the apartment Regina paused, unsure of what to do next.

Defendant appeared at the top of the stairwell, wearing only shorts. He was shielding his face with his hands from an outside light. Defendant asked why they “weren’t having that beer.” Regina replied that she was really frightened and it just “wasn’t a good night for [her],” but he could come back tomorrow. Defendant exhorted her to “just come inside. We’ll calm down, and we’ll have that beer.”

Regina told defendant he could help himself to a beer. When he asked her to show him where it was, she replied that it was in the fridge. Defendant voiced concern that Regina was going to call the police, but she assured him she would not because he had not done anything wrong.

Defendant reemerged from Regina’s apartment a few seconds later, holding a bottle of beer and still covering his face. He again voiced concern about her calling the police. As he walked down toward her on the stairs, covering his face, Regina looked down at his feet. Defendant asked her why she was staring his feet and she replied it was because he did not want her to see his face.

Defendant walked down the stairs, past Regina and out of the complex, wearing only shorts. Regina returned to her apartment and noticed that the cordless phone was missing and the phone jack for the telephone was pulled out. She called 911 from an old cell phone. She noticed that the window screen had been partially torn. The apartment had been ransacked and valuable items including her laptop computer, cash and jewelry were missing.

Defendant was apprehended by the police with some of Regina’s personal property in his possession. He confessed to the burglary. At the police station, defendant gave a videotaped interview that was played for the jury. In the interview, defendant claimed he walked through an open door to steal Regina’s property. He was in the process of leaning over the bed to take her watch when Regina woke up. She “bounced up” and started “hollering” because she thought he was going to harm her, but he assured her that was not his intention. He denied getting into bed with Regina or saying anything about sex.

At the first trial defendant gave testimony that was generally consistent with his videotaped statement. However, he did not testify at the second trial.

DISCUSSION

I. The Prosecutor’s Reliance on an “Inadequate Theory” of Assault

A. Misstatement of Law in Closing Argument

The jury was instructed on assault with intent to commit rape, including CALJIC No. 9.00’s definition of assault,^[3] and the requirement of CALJIC No. 3.31 that, to find defendant guilty of assault with intent to commit rape, there must be a union or joint operation of act and specific intent.

In closing argument the prosecutor asserted that not only did defendant have the intent to rape Regina from the time he entered the apartment until she got out of bed and “became assertive,” but that the assault was complete at the moment he crawled into her bed with her: “An assault is merely committing an act that would probably and directly result in the application of physical force on another person. So you’re doing something that will probably and directly result in the application of force on another. So you don’t even have to touch anybody to be guilty of assault. You don’t have to touch them to be guilty of assault. Doesn’t require touching at all. . . . So here, just to recap: [Four] o’clock in the morning. He breaks into her apartment. He steals from her, takes her phones. Returns, knows she’s not going to be able to call 911. Knows that she’s alone. And he sees her sleeping topless. He’s looking at her, he gets naked, and he crawls into bed with her. You can stop right there. Clearly you have enough evidence to say that he assaulted her. It’s not an act that [Regina] is going to consent to. So what he’s done right there, without even saying anything to her, without even touching her, is that a threatened battery? Every person in here knows what’s coming . . . . Right there, legally, you have an assault. Right there, he’s done an act that would probably and directly result in the application of physical force on [Regina]. Clearly, that’s what he’s done.” (Italics added.) He concluded: “I submit to you the assault occurs before he even opens his mouth and touches her. But the case is solidified and slam-dunked once you get to that point where he actually speaks to her and actually touches her. He had no right to touch [Regina].”

Defendant contends the prosecutor misstated the law in telling the jury that defendant committed the assault merely by crawling into bed with the requisite intent. He reasons that while getting into bed with the intent to have nonconsensual intercourse may be sufficient to constitute the crime of attempted rape, it cannot provide the evidentiary foundation for assault with intent to rape. We agree.

The California Supreme Court has, in recent times, grappled with the elusive issue of how to define and classify the intent to commit an assault. (See People v. Williams (2001) 26 Cal.4th 779, 784-785 (Williams); People v. Colantuono (1994) 7 Cal.4th 206, 215-216 (Colantuono).) However, we are not here concerned with defendant’s state of mind, for the prosecutor’s argument assumed that he had the requisite intent. The question we face is whether the jury could find that defendant’s mere act of crawling into bed with Regina could constitute an assault.

Since the enactment of section 240 in 1872, the crime of assault has been defined as “‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’” (Williams, supra, 26 Cal.4th at p. 784.) The term “violent injury” is actually a misnomer, because the crime does not require violence in the traditional sense but, as the jury was told, “any unlawful application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark.” (See CALJIC No. 16.141; People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12. (Rocha).) Simply put, an assault is an attempt to commit a battery. (People v. Lee (1994) 28 Cal.App.4th 1724, 1734.) “An assault is an incipient or inchoate battery, and a battery is a consummated assault.” (1 Witkin, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 2, p. 638 (Witkin).)

As CALJIC No. 9.00 instructs, to qualify as an assault the act must be one which by its very nature is likely to produce the application of physical force against another. (Williams, supra, 26 Cal.4th at p. 790.) A classic example of an assault would be rushing toward the victim with a hatchet. (See People v. Yslas (1865) 27 Cal. 630, 633.) Even though no contact is made, the very nature of the act makes the imminent application of force (a battery) likely.

Witkin observes that the crime of assault requires a closer proximity to the crime of battery than a mere attempt to commit the underlying offense. “An act done toward the commission of the battery must precede the battery immediately, while an act constituting an attempt to commit an offense may be more remote. [Citations.] Thus, mere insulting words, preparation, or threats of future injury, not coupled with any offer of present violence, do not constitute assaults.” (1 Witkin, supra, § 6, p. 642, italics added.)

The act of crawling into bed is not one by its very nature that would likely result in the application of force to another. It is neither an “inchoate battery,” nor is it coupled with the offer of immediate, present violence. The prosecutor argued that if defendant intended to rape, the application of force was imminent since “[e]very person in here knows what’s coming.” But that line of reasoning indulges in the false presumption that the actor’s evil intent^[4] can change the nature of the act for purposes of determining whether an assault was committed.

Suppose, for example, that defendant approached Regina’s bedside and, with the intent to commit rape, ordered her to disrobe. While such conduct would clearly constitute an attempted rape, no jury could convict defendant of assault with intent to rape, even if a battery was a likely consequence of her failure to cooperate. Here, the act of getting into bed with a sleeping victim has an even more remote and tenuous connection to battery than the above hypothetical.

By telling the jury it could convict defendant of assault with intent to commit rape based on the lone act of slipping under the covers with Regina, the prosecutor misstated the law.^[5]

B. Prejudice

Defendant claims the prosecutor’s misstatement requires reversal of the judgment. He bases this argument on People v. Green (1980) 27 Cal.3d 1 and People v. Guiton (1993) 4 Cal.4th 1116, both of which hold that “‘[w]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.’” (Guiton, at p. 1122, quoting Green, at p. 69.)

Our Supreme Court faced a similar issue in People v. Morales (2001) 25 Cal.4th 34 (Morales). There, the defendant was charged with possessing phencyclidine (PCP) and the evidence showed a vial of PCP was in the defendant’s vehicle and he was under the influence of the drug at the time of his arrest. (Id. at p. 37.) During final argument, the prosecutor told the jurors that evidence the defendant was under the influence of PCP was sufficient to establish his possession of the drug. (Id. at p. 38.) In fact, evidence of being under the influence is not sufficient proof by itself of possession. On appeal, the defendant argued his conviction must be reversed under Guiton and Green because the prosecutor had presented a legally incorrect theory, and it was not possible to determine whether the jury’s verdict had rested on that theory. (Morales, at pp. 41-42.)

Our Supreme Court disagreed, holding that it would be “an incorrect reading of precedent” to conclude that “because the closing argument is part of the presentation of the state’s case, error may arise solely from improper remarks made therein.” (Morales, supra, 25 Cal.4th at p. 48.) Instead, the court distinguished the cases upon which the defendant relied: “Guiton and Green are unlike this case in that in each of them, the court presented the state’s case to the jury on an erroneous legal theory or theories. . . . . . . In this case, by contrast, the court did not present to the jury a case that was premised on a legally incorrect theory. The prosecutor arguably misstated some law, but such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis. When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court’s attention by a timely objection. Otherwise no claim is preserved for appeal.” (Id. at pp. 43-44.)

We reach the same conclusion here. The trial court instructed the jurors on the law of assault, using standard CALJIC instructions. Defendant does not contend the instructions were incorrect. Thus, even though the prosecutor was wrong in asserting that defendant’s act of crawling into bed with Regina could be deemed an assault, the error raises only a potential claim of prosecutorial misconduct. Defendant did not object to the prosecutor’s comments. Accordingly, the improper remarks by the prosecutor provide no basis for reversal of the judgment.

C. Ineffective Assistance of Counsel

Anticipating the foregoing conclusion, defendant claims his trial attorney deprived him of constitutionally effective assistance of counsel by failing to object to the prosecutor’s misstatements concerning the law of assault.

To succeed on a claim of ineffective assistance, a defendant must satisfy a two-pronged burden: (1) counsel’s act or omission fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to the defendant would have resulted. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) “If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.” (Rodrigues, at p. 1126.) Defendant has failed to make an adequate showing in either respect.

It is established that “‘even “debatable trial tactics” do not “constitute a deprivation of the effective assistance of counsel.”’” (People v. Weaver (2001) 26 Cal.4th 876, 928, quoting People v. McGautha (1969) 70 Cal.2d 770, 784.) The record shows that defense counsel’s strategy was to create reasonable doubt about defendant’s state of mind throughout the course of events, based on inconsistencies in Regina’s prior statements, coupled with the possibility that she misinterpreted what took place due to cultural differences and pervasive racial stereotypes. It was an arguably reasonable choice of tactics for counsel not to interfere with the prosecutor’s dubious claim that getting into bed could constitute an assault, especially since an objection would have focused unwanted attention on a scenario that presupposed defendant did intend to rape Regina.

Even if defense counsel’s omission was unjustified, defendant has failed to demonstrate a reasonable probability that he would have achieved a more favorable result had the objection been interposed. The instructions on assault were undisputedly correct and the jury was told that if any statements made by counsel during argument conflicted with the court’s instructions, they were to follow the instructions. There is no indication in the record that the jury refused to heed this admonition.

Even more importantly, while the prosecutor “submit[ted]” that it was possible to find the act of getting into Regina’s bed constituted an assault, he quickly added that the assault was “slam-dunked” when defendant grabbed Regina’s arm as she sat up in bed. Thus, the prosecutor minimized the importance of the incorrect theory of liability and drove home the correct theory.

For all these reasons, we conclude that it is not reasonably probable the jury would have returned a different verdict had counsel made a proper objection.^[6] Ineffective assistance of counsel has not been shown.

II. Failure to Instruct on Attempted Rape

The jurors were instructed that if they were not convinced beyond a reasonable doubt that defendant was guilty of assault with intent to commit rape, they could nevertheless convict him of the lesser offenses of either assault or battery. However, they were not given the option of convicting defendant of attempted rape as a lesser included offense.

Defendant argues the trial court had a sua sponte duty to instruct on the lesser offense because there was substantial evidence to support it. The People concede that attempted rape is a lesser included offense of assault with intent to commit rape, but maintain the court had no duty to instruct on it. Defendant has the better argument.

“‘The trial court functions both as a neutral arbiter between two contesting parties and as the jury’s guide to the law. This role requires that the court fully instruct the jury on the law applicable to each particular case.’” (People v. Daya (1994) 29 Cal.App.4th 697, 712.) The trial court errs if it does not, sua sponte, instruct on a lesser included offense where evidence of that offense is “‘substantial enough to merit consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman), quoting People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive. (People v. Barton (1995) 12 Cal.4th 186, 201 & fn. 8, quoting Flannel, supra, 25 Cal.3d at p. 684.)

“An attempt to commit a crime has two elements: the intent to commit the crime and a direct ineffectual act done toward its commission. The act must not be mere preparation but must be a direct movement after the preparation that would have accomplished the crime if not frustrated by extraneous circumstances.” (People v. Carpenter (1997) 15 Cal.4th 312, 387.)

Here, there was evidence that defendant, after burglarizing Regina’s apartment, returned through an open door, took off his clothes, and crawled into bed with her as she was sleeping. Unquestionably, a jury could conclude that he harbored an intent to rape her at that point. The act of slipping under the covers next to his victim qualifies as an ineffectual act toward the commission of rape, which goes beyond mere preparation. Thus, as long as he harbored the requisite specific intent, defendant was guilty of attempted rape at the moment he crawled into the bed.

Regina testified, however, that she awoke as soon as defendant got into her bed. Rather than panicking, she spoke to him in a calm manner, asking him how he got in. She introduced herself to him and he did likewise. He confessed he “just want[ed] some pussy.” Afraid of being raped, she told him she had never had sex and suggested having a beer together. As she sat up, defendant grabbed her arm. She repeated her proposal that they go in the living room and talk over a beer. When defendant agreed to the beer and released her arm, she got up, grabbed a T-shirt, walked to the living room and ran out the open front door.^[7]

Understandably, the prosecutor advanced the notion that defendant intended to rape Regina when he grabbed her arm, thereby committing the assault. However, the evidence was equally susceptible of the inference that by that time, Regina had changed the dynamics of the situation by humanizing herself and converting what could have been a violent confrontation into a chance encounter between strangers. Based on the foregoing evidence, the jury could have concluded that by the time defendant grabbed her arm, his attitude had changed, such that he had abandoned the intent to rape, and decided instead to try to convince her to have consensual sex.^[8]

We conclude there was substantial evidence from which the jury could find that defendant was guilty of attempted rape but not assault with intent to commit rape. The trial court erred in failing to instruct on this lesser offense. We also find it reasonably probable that the jury would have reached a different verdict had it been given the option of convicting defendant of attempted rape. The error was therefore prejudicial under the standard stated in Breverman, supra, 19 Cal.4th at page 165. “The state has no interest . . . in obtaining a conviction of the offense charged where the jury entertains a reasonable doubt of guilt of the charged offense but returns a verdict of guilty of that offense solely because the jury is unwilling to acquit where it is satisfied that the defendant has been guilty of wrongful conduct constituting a necessarily included offense.” (People v. Geiger (1984) 35 Cal.3d 510, 519, overruled on a different point in People v. Birks (1998) 19 Cal.4th 108, 112-113.)

Anticipating an unfavorable ruling on this point, the Attorney General requests that we give the prosecutor the option of retrying defendant or accepting a reduction of the conviction to attempted rape. We agree that is an appropriate disposition. “When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense.” (People v. Kelly (1992) 1 Cal.4th 495, 528 (Kelly).)

III. Exclusion of the Wallet

At the first trial, the arresting officer was questioned by defense counsel about the items found in defendant’s wallet. Among them were scraps of paper on which were written mostly female-sounding names and telephone numbers. The wallet was admitted into evidence. During closing argument, defense counsel argued that the scraps of paper indicated that defendant was not at a loss for female companionship, casting into doubt the statement Regina attributed to him that he could not get “pussy.”

At the second trial, the officer again testified about the wallet and some of its contents, but was not specifically asked about the scraps of paper. At the close of the case, the prosecutor objected to admission of the contents of the wallet, on grounds of insufficient foundation and that it would mislead and confuse the jury. After taking the matter under submission, the court ruled that the wallet “is not even relevant and, therefore, we don’t ever get to the contents issue,” but even if the wallet was relevant, the contents would be inadmissible for lack of foundation.^[9]

Defendant now contends that exclusion of the wallet was reversible error because the names and phone numbers of women written on the scraps of paper indicated that he “was not lacking in female companionship and did not need to forcibly rape women.” The claim is utterly without merit.

“Evidence is relevant if it has any tendency in reason to prove or disprove a disputed fact at issue.” (People v. Mayfield (1997) 14 Cal.4th 668, 749; Evid. Code, § 210.) The trial court is vested with wide discretion in determining relevance under this standard. (Kelly, supra, 1 Cal.4th at p. 523.)

Defendant’s contention that the scraps of paper tended to prove he lacked the intent to rape engages in two wildly speculative presumptions. The first is that the names on the paper represented women who were willing to have sex with defendant. There is no evidentiary support for such a conclusion. Without more information, the names meant nothing to the jurors. Defendant could have been a hairstylist for women, a pimp, or a drug dealer supplying mostly female users.

Second, even assuming the names were those of women with whom defendant had a personal relationship, we reject as unsound and without scientific support the outdated notion that criminals do not rape if they can obtain sex consensually.

The trial court properly excluded the wallet as irrelevant. Our determination renders moot defendant’s alternative argument that his attorney was incompetent for failing to lay a sufficient foundation for admission of the wallet.

IV. Restriction on Defense Counsel’s Closing Argument

During his closing presentation, defense counsel reprised a theme he had employed in the first trial, that racism and cultural stereotypes colored Regina’s perception of her interaction with defendant. After giving two examples of racial stereotyping of Black men,^[10] counsel argued: “There are sexual attitudes associated with Black people in terms of the White consciousness that, hey, we have to discuss. Okay? They’re here in this case. And if there isn’t a myth in your particular lexicon, and mine, you must admit that there is one in terms of other people, that Black men are frequently looked upon as all sexually oriented. Okay? They all have large penises too. One of the wonderful myths, okay? They are there. Does that color anybody’s thinking? Certainly can. Prejudice and prejudgment and ideas as to how people react and how people are, are a way of keeping them in subjugation, of course. But, there is also a reality in our society. I’m not saying that should a charge against--“

At this point, the prosecutor objected, asserting counsel’s argument was “wholly unfounded in any evidence” as well as “highly inflammatory and prejudicial.” He urged the court to tell counsel to “move on.” Defense counsel replied that the prosecutor’s comments did not constitute “a legal argument.” The court decided to take a recess at that point.

Out of the presence of the jury, the court said that it was inclined to restrain defense counsel from continuing his line of argument. Counsel replied, “I’m just about done anyway,” but engaged in a lively exchange with the prosecutor over whether he had a right to argue that cultural and racial prejudices might have affected the victim’s perception of events. (Italics added.) At the conclusion of the debate, the court asked defense counsel, “[C]an you move on from here?” Counsel replied, “Yeah, I can move on from here.”

Based on these events, defendant contends the trial court improperly and prejudicially restricted defense counsel’s closing argument. The argument fails.

First, the point has not been properly preserved. The court initially stated that it was “inclined” to agree with the prosecutor that defense counsel should move on to another subject. After a robust debate between the attorneys, the court made no ruling but merely asked defense counsel whether he could move on. He agreed. Since counsel failed to secure a ruling, but rather acquiesced in the court’s suggestion, defendant has forfeited his claim of error. (6 Witkin, supra, Reversible Error, § 36, p. 495.)

Moreover, prejudice is lacking since, as the People correctly point out, defense counsel was able to develop his point as fully as he did in the first trial. By his own admission, counsel was “just about done” by the time the prosecutor intervened. Even after agreeing to “move on,” counsel returned to his theme without interference.^[11] Thus, defendant’s claim that trial counsel was materially restricted in his line of argument is unsupported by the record.

DISPOSITION

Defendant’s conviction of assault with intent to commit rape (§ 220--count three) is reversed. If, after the filing of the remittitur in the trial court, the People do not retry defendant on count three within the time limit set forth in section 1382, subdivision (a)(2)---60 days unless waived by defendant---the trial court shall treat the remittitur as a modification of the judgment as to count three to reflect, rather, a conviction of attempted rape (§ 664/261, subd. (a)(2)), and resentence defendant accordingly. (People v. Woods (1992) 8 Cal.App.4th 1570, 1596.) In all other respects, the judgment is affirmed.

BUTZ , J.

I concur:

ROBIE , Acting P. J.

Concurring and dissenting of Cantil-Sakauye, J.

I concur in parts I, III and IV of the majority opinion and dissent as to part II -- failure to instruct on attempted rape and the reversal based on that issue. The majority conclude there was substantial evidence from which the jury could find defendant was guilty of attempted rape but not assault with intent to commit rape. The majority assert that the evidence of defendant grabbing Regina’s arm (which the prosecution argued was evidence of the assault with intent to commit rape) was equally susceptible of the inference that by that time, Regina had changed the dynamics of the situation by humanizing herself and converting what could have been a violent confrontation into a chance encounter between strangers. It concludes that this and other evidence was substantial evidence from which the jury could find defendant had abandoned the intent to rape and decided instead to try to convince her to have consensual sex. I respectfully disagree.

The law is clear that “[a] trial court must instruct the jury sua sponte on an uncharged offense that is lesser than, and included in, a greater offense with which the defendant is charged ‘only if [citation] “there is evidence”’ [citation], specifically ‘substantial evidence’ [citation] ‘”which, if accepted . . . , would absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser‘ [citation]. [Citations.]” (People v. Waidla (2000) 22 Cal.4th 690, 733, first italics added by Waidla, second italics in original, quoting People v. Memro (1995) 11 Cal.4th 876, 871.) In order to justify an instruction on a lesser included offense, it is not enough that there be “any evidence” to support the lesser but not the greater offense. There must be substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) “‘”Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” [Citation.]’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) On appeal, the reviewing court reviews the record to determine if there was substantial evidence warranting the instruction on the lesser offense. (People v. Dennis (1998) 17 Cal.4th 468, 508.) Defendant’s act of grabbing the victim’s arm, his statement that he wanted pussy, and his post bedroom conduct must be viewed in the context of the entire record.

The evidence indicated that by the time defendant slipped between Regina’s covers, her phone had been disabled, he had removed her cell phone, and her bedroom lights were disabled. Regina awoke to defendant in her bed under her covers. Notably, she testified that defendant, a complete stranger, grabbed her arm; she did not testify that he touched her arm or brushed her arm or nudged her arm -- he grabbed it. (Italics added.) The skin-to-skin grab was sufficiently effective to one, stop Regina’s forward movement and two, to cause her to “quit trying to move.” The arm grabbing, the restraint, occurs in Regina’s bed about the time defendant somewhat rhetorically makes known his desire for pussy and only when Regina tried to get away. It is reasonable to infer that when defendant, who appeared naked to Regina, grabbed her naked arm, it was an objectively frightening and offensive act qualifying as an assault and a prelude to assault with intent to commit rape. Defendant’s conduct, when considered with all the evidence in the record could not reasonably be interpreted as a change in attitude or an abandonment of the intent to rape. Indeed, notwithstanding the court’s instruction on and the availability of the lesser included offenses of assault and battery, the jury returned a verdict of guilty on the assault with intent to commit rape. There was no substantial evidence that defendant abandoned the intent to commit rape. He did not get out of bed first, or say anything to communicate he abandoned the intent to commit rape.

Nor could the evidence that the victim was able to get out of the bed, grab a shirt, leave the bedroom and get out of the apartment be interpreted as substantial evidence defendant abandoned the intent to commit rape. The evidence is that the victim left the bedroom quickly and went outside halfway down the stairs. Approximately five to ten seconds later defendant came outside and stood at the top of the stairs and talked to her while shielding his face from the outside light. Defendant and the victim conversed in this position -- he still outside her apartment barefoot and shirtless, she on the stairs -- as defendant tried to coax the victim back in to have a beer. The victim was still trying to defuse the situation. At some point defendant went in, was out of sight for about 10 seconds, retrieved a beer and came back outside, still shielding his face from the light. Defendant’s post bedroom behavior is not substantial evidence that he abandoned his intent to rape. If anything, it establishes that Regina outsmarted defendant and he attempted to regain control of the situation. That defendant did not give chase is not substantial evidence of defendant’s abandonment of the intent to commit rape. Half dressed, defendant was not well-equipped to run barefoot down the stairs to chase the victim and risk her screams awakening residents near her apartment.

The opinion states that there was substantial evidence from which a jury could conclude that defendant decided instead to try to convince Regina to have consensual sex. This conclusion presupposes that defendant’s intent to rape was only half formed. But the evidence overwhelmingly suggests otherwise.

The jury heard that defendant had returned to Regina’s apartment a second time that night. Her phones and bedroom light were disabled. He used stealth in getting into her bed so as not to awaken her. He was under her covers when she woke up. Defendant was prepared for a criminal act including a violent confrontation. Even while he was outside of the apartment trying to coax Regina back inside, he shielded his face from the light to avoid her identification of him. Defendant’s preparation and behavior belies any inference that his intent to commit rape was only half formed.

Lastly, the defendant did not testify at trial. In defendant’s videotaped interview with the police, admitted at trial, he denied getting into the bed and saying anything about sex. He said he was in the process of leaning over the bed to take Regina’s watch when she woke up. The defense theory of the case was that Regina had misperceived the entire bedroom event.

The only evidence for the instruction on attempted rape is the majority’s evaluation of the potential effect of Regina and defendant’s conversation and that somehow when the defendant grabbed Regina’s arm, he meant her no harm. And in order for the jury to find defendant guilty of the lesser and not the greater offense it would have had to believe defendant abandoned the intent to commit a crime he denied existed. In my view, no reasonable jury could have believed Regina’s testimony, disbelieved defendant’s statement to the police, interpret defendant’s arm grab as benign and find that for all his preparation, he abandoned the intent to rape. I find no error and would affirm the trial court.

_____CANTIL-SAKAUYE_________, J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] At the first trial Regina testified that defendant first grabbed her and then said he “just wanted some pussy.” At the second trial, she said defendant first made the statement and grabbed her arm “a few seconds after that.”

^[3] The instructions stated, in pertinent part: “The crime of assault with intent to commit rape is complete if an assault is made and . . . at any moment during the assault the aggressor intends to commit rape on the person assaulted. In order to prove an assault, each of the following elements must be proved: A person willfully and unlawfully commits an act which by its nature would probably and directly result in the application of physical force [against] another person; The person committing the act was aware of the fact that would lead a reasonable person to realize that as a direct and natural and probable result of this act that physical force would be applied to another person; And at the time the act was committed, the person committing the act had the present ability to apply physical force to the other person. . . . To constitute an assault, it is not necessary that actual injury be inflicted. . . . As used in the foregoing, force and violence are synonymous and mean any unlawful application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act. The slightest unlawful touching, if done in an insolent, rude or angry manner, is sufficient. It is not necessary that the touching be done in actual anger or with actual malice. It is sufficient if it was unwarranted and unjustified.”

^[4] Simple assault is a general intent crime. (Colantuono, supra, 7 Cal.4th at pp. 215-216.) The only state of mind required is that the defendant intend to engage in an act that he realizes would, if successfully completed, result in injury to another. (Williams, supra, 26 Cal.4th at p. 784, citing Rocha, supra, 3 Cal.3d at p. 899.) Of course, the crime of assault with intent to commit rape requires that the act be accompanied by an additional specific intent to have nonconsensual intercourse.

^[5] Our conclusion renders moot defendant’s fallback argument that the trial court erred in failing to instruct the jury that they must unanimously agree on which act constituted the assault. As defendant concedes, if a guilty verdict could only be based on the act of grabbing Regina’s arm, a unanimity instruction was not required.

^[6] We reject, as hair-splitting, defendant’s claim that counsel should have objected to the prosecutor’s definition of an assault as an act that “will probably and directly” result in the application of physical force, instead of saying that the act by its very nature would probably result in the application of physical force. The difference between the two modes of expression is not so significant that the prosecutor can be said to have misled the jury in this respect.

^[7] See footnote 2, ante, at page 3.

^[8] In an attempt to mount an apparent estoppel claim, the Attorney General avers that “it appears” defense counsel was opposed to a lesser included instruction on attempted rape at the first trial and “presumably” was opposed to such an instruction at the second. Because these statements are not supported by proper citations to the record, the argument is undeserving of further consideration.

^[9] Defense counsel responded that if lack of foundation was the reason for exclusion, he would be inclined to move to reopen his case to allow defendant to testify that the scraps of paper contained the names of “females that he called.” However, in light of the court’s intended ruling that if defendant took the stand he would be subject to plenary cross-examination by the prosecutor, counsel declined to move to reopen.

^[10] Defense counsel brought up the example of Emmett Till, a 14-year old African-American boy in Mississippi who, a half century ago, was beaten to death and thrown in a river after whistling at a white woman. He also repeated a joke from the comedy film Blazing Saddles, in which a Black sheriff enters a gathering of people and exclaims, “Where is all the white women?”

^[11] After the recess, defense counsel continued to argue that Regina’s perception of the events might be “based upon her own prejudices and what she thinks is going on.” (Italics added.) He continued, “And I’m not saying that she’s unreasonable in having that idea. That she’s going to get raped. But it’s there, foremost, and it colors things. Okay? I mean our fears always color things. Our ideas, our concepts in our culture color things. Okay?” (Italics added.)