P. v. Montiel

Filed 6/21/07 P. v. Montiel CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed with directions.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Maxine Cutler and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Jose Montiel of forcible rape, a violation of Penal Code section 261, subdivision (a)(2),^[1]and assault by means of force likely to produce great bodily injury, a violation of section 245, subdivision (a)(1). The jury also found that defendant personally inflicted great bodily injury on the victim.

Defendant appeals, contending that his rape conviction must be reversed because there was insufficient evidence of penetration. He also asks that the abstract of judgment be corrected.

I. FACTS

The victim, referred to at trial as Jane Doe, testified that she had a fight with her boyfriend in Ontario on November 12, 2005. Her boyfriend took her car keys, so she walked away from his home about midnight. As she did so, she saw a male, identified as defendant, in front of a house. Defendant tried to make contact with her, and followed her in a car. Eventually, defendant stopped the car and got out. She began running.

Defendant caught her, knocked her down, and began to hit her. She fought back and he attempted to strangle her. She passed out and woke up in an ambulance. When she woke up, she saw that her underwear had been removed and her skirt had been pulled up to her chest. She did not remember being beaten or raped.

Due to the force of the DNA evidence, discussed below, defendant concedes that there was substantial evidence to support the jurys conclusion that he was the person who assaulted the victim. But he contends the evidence of penetration was insufficient to support the rape conviction.

II. THE SUFFICIENCY OF THE EVIDENCE OF RAPE

An argument that evidence is insufficient to establish a statutory violation requires the appellate court to determine whether the evidence, and reasonable inferences to be drawn from the evidence, provides substantial evidence of each element of the charged crime. (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]

Section 261 defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under various situations, including intercourse accomplished against a persons will by force and violence. ( 261, subd. (a)(2).) The requisite act of sexual intercourse is defined by an act of penetration. In this regard, section 263 states: The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime. The issue here is whether there was evidence of penetration.

Penetration means 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. (People v. Karsai (1982) 131 Cal.App.3d 224, 232, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.)

The consummation of such an act may be shown by the circumstances and surroundings [citation], and may be proved by circumstantial as well as direct evidence. [Citation.] The right to draw proper inferences from the evidence is a function of the jury; and as long as its conclusions do not do violence to reason, an appellate court is not permitted to substitute its findings of the ultimate fact for that reached by the jury [citation], and inasmuch as we cannot say that the conclusion reached by the jury does violence to reason we likewise cannot say that such conclusion was erroneous. (People v. Strickland (1955) 134 Cal.App.2d 815, 818, quoting People v. Vicencio (1945) 71 Cal.App.2d 361, 365.)

The People find ample evidence of penetration. First, they cite the testimony of a hospital nurse who performed a sexual assault exam on the victim. She took vaginal and vulvar swabs from the victims genital area, as well as a swab from the victims inner left thigh. She examined the area and found redness and abrasive friction-type injuries on the victims labia minora, and between the hymen and labia minora. In her opinion, the findings were consistent with recent penetration.

Second, the People point to the DNA evidence. An expert testified that he tested the vaginal swab taken by the nurse and found defendants DNA on it. He also tested for the DNA of the victims boyfriend and excluded the boyfriend from being the source of the DNA on the vaginal swab. He also found defendants DNA on a rectal swab. The victims DNA was also found on defendants penis.

Third, a witness testified that her daughter awakened her at the time of the attack. Looking out a bedroom window, she saw a person on top of another person. The person on top was making thrusting motions as if he was having sex with the other person. After the attacker left, the witness went to the victim and saw that the victim was not wearing any underwear or skirt.

The daughter of the witness also testified that she saw the attacker straddling the victim. She also saw the attacker move his body up and down over the victim.

We agree with the People that this evidence is sufficient to allow the jury to infer that penetration occurred. The People cite People v. Earp (1999) 20 Cal.4th. 826 (Earp):Vaginal redness consistent with penetration by an adult penis constitutes evidence sufficient to establish rape. [Citation.] (Id. at p. 888.)

Although defendant attempts to distinguish the case by pointing out that it involved an adult raping a baby, the case cited in Earp states: That the evidence might lead to a different verdict does not warrant a conclusion that the evidence supporting the verdict is insubstantial. [Citation.] The evidence of penetration in this case was circumstantialredness in the vaginal area, the absence of evidence of an infection that might account for it, and expert testimony that the redness was consistent with penetration. Other circumstantial evidencethe medication and absence of blood or semencould support an inference that the redness had a different cause. [] When, as here, the trier of fact has relied on inferences, those inferences must be reasonable. An inference is not reasonable if it is based only on speculation. [Citation.] The jury verdict in this case was not, as defendant argues, based only on speculation. It was based on evidence that the redness present in the victims vagina was consistent with penetration by an adult male penis. The inference that defendant accomplished penetration, apparently drawn by the jury on the basis of this evidence and defendants admission that he sexually assaulted the victim, is reasonable. (People v. Holt (1997) 15 Cal.4th 619, 669.)

There were counterarguments to the evidence cited by the People , but that does not mean that a rational jury could not accept the prosecutions argument and reasonably infer that penetration occurred.

Defendant argues, for example, the genital redness could be explained by the victims testimony that she had consensual intercourse with her boyfriend the day before.

With regard to the DNA evidence, the People concede that there was some ambiguity concerning it. The nurse testified that she took three swabs: two inside the genital area and one on the thigh. Since the expert testified that he tested only one of the swabs, which he referred to as a vaginal swab, and defendants DNA was found on that swab, it is at least arguable that the defendants DNA was found on the sample from the thigh, not the other two samples. The People also commendably point out that the prosecutor, in oral argument, referred to the DNA as being on the victims vagina, rather than in the victims vagina.

Defendant also argues that his motions, as reported by the eyewitnesses, could be explained by the assault or sexual activity short of penetration.

But it is not enough to merely show that the jury could have drawn alternative inferences from the evidence. In Earp, the court concluded: Where, as here, the jurys findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding does not render the evidence insubstantial. [Citation.] (Earp, supra, 20 Cal.4th at pp. 887-888.)

In considering a claim of insufficiency of evidence, a reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] [Citation.] Although it is the jurys 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 defendants guilt beyond a reasonable doubt. [Citation.] Simply put, if the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citations.] (People v. Farnam (2002) 28 Cal.4th 107, 142-143.)

We find ample evidence from which a rational jury could infer that penetration, and therefore rape, occurred.

III. CORRECTION OF THE ABSTRACT OF JUDGMENT

Defendant points out that the abstract of judgment incorrectly refers to a conviction of the crime of assault with a deadly weapon, rather than the crime of assault with intent to commit great bodily injury. The People agree that the abstract should be corrected to show the proper basis for the conviction. We will order the abstract of judgment amended accordingly.

IV. DISPOSITION

The judgment is affirmed. The trial court is directed to modify the abstract of judgment to reflect a conviction of a violation of section 245, subdivision (a)(1), assault with intent to commit great bodily injury, rather than the crime of assault with a deadly weapon.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.