P. v. Moon

Filed 9/21/07 P. v. Moon CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.

Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

We appointed counsel to represent defendant Gi Jeon Moon on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against her client, but advised the court she found no issues to argue on his behalf. We provided defendant 30 days to file written argument in his appeal. He has filed a letter, translated from the Korean language, asserting various grievances.

We have examined the record pursuant to People v. Wende (1979) 25 Cal.3d 436. An information charged Moon with assault with intent to commit rape. (Pen. Code,  220.) The evidence at the jury trial, conducted in June 2006, disclosed that defendant met Jung S. at a drunk-driving class in 2003 and they reconnected in November 2005. She socialized with him and had previously spent the night in a guest room at the home where he lived, but they never had a sexual relationship.

On December 16, defendant asked Jung to come over for drinks. She and a female friend drove separately to his Buena Park residence after picking up food and

12-18 cans of beer. Jung drank three to five beers. Defendant also drank but did not become drunk. After her friend left, Jung determined she should not drive and decided to spend the night. Defendant persuaded her to sleep in his room because he had an electric blanket. She fell asleep on his bed fully clothed but awoke to find defendant touching her stomach. Defendant was next to her on the bed wearing only a T-shirt, and his penis touched her thigh. She pushed his hand and said go away. He got on top of her and tried to pull down her pants. She resisted by pulling up her pants. He hit her face with his fist, pulled her off the bed by her hair and kicked her. When she climbed back on the bed, he shouted at her, held her hair, squeezed her neck, and told her to quit being a bitch. She felt like she was suffocating.

He stopped hitting her, took several heavy breaths, and she suggested they go into the kitchen. She lied to him, telling him she could not have sexual relations because she recently suffered a miscarriage. He told her [w]e must do this today and that she was lucky because his friends used to break girls legs and did this and then made them pregnant. She said she would have sex but he had to buy her some medicine to stop her nose from bleeding and told him about a 24-hour pharmacy. When he left to buy the medicine, she fled and telephoned police. Jung admitted she bit defendant, and may have scratched him.

When police arrived, Jung was shaking and crying, bleeding from her nose and mouth, her left eye was puffy, and she had an abrasion on the bridge of her nose. There was blood on her shirt and right shoe, her hair was mussed, and her pants zipper was broken. She said she had been raped. On cross-examination, Jung clarified that at some point during the struggle she pushed defendant off the bed. He got back on top of her. Sometime after this he hit her, pulled her hair, and knocked her off the bed and kicked her. She did not tell officers about defendants statement they must do it today.

Defendant told the police officer he and the victim were not dating or in a sexual relationship and that he had slept next to her on previous occasions without touching her. When Jung agreed to stay in his room, he thought they were going to have sex. He took off his pants and laid next to her, touched her, and tried to take her pants down. He could not get her pants lower than her buttocks and could not get her underwear off because she kicked him off the bed. He fell off and bumped his head on the television. He became angry, and admitted slapping her twice, but denied punching her. He got on top of her again and she bit him. He pushed her off him to prevent her from biting his forearm, grabbed her neck, and kicked her in the buttocks and thigh area. He also threw a lamp down on the floor, but did not recall if he hit her with it. He admitted feeling angry and humiliated. They went into the kitchen and she told him about her recent abortion. He offered to wipe the blood off her nose and mouth, but she refused.

Defendant told the officer it was not physically possible to rape a woman unless you tie them up. He had scratch marks on his face and back, redness around his left shoulder, and a bite mark on his right forearm. The officer did not see a bump on defendants head. There was blood and hair on the bedroom floor and bedspread, and the room showed signs of a struggle.

Defendants landlord testified Jung had spent the night with defendant in his room three or four times. He had never seen them hug or kiss, but they did hold hands. Defendant had told the landlord he was interested in being more than friends with Jung.

The jury convicted defendant of assault with intent to commit rape. The court suspended imposition of sentence and granted defendant probation for five years on various terms and conditions, including a 365-day jail term, with credit for 357 days. The court also ordered defendant to register as a sex offender under Penal Code section 290.

We briefly attempt to address defendants claims. (People v. Kelly (2006) 40 Cal.4th 106, 110.) Defendant argues he was a victim, not a perpetrator, and had been subjected to sexual harassment for a long period . . . . He states, One man has been sexually harassed by a woman for over two years. He was then battered [sic] and reacted in like manner, but did not use any object or weapon. That was immediately followed with remorse and regret. Furthermore, this man, although he did not disclose on the police report that he had been sexually harassed for all that time, did nonetheless complain of the mental distress he has suffered. [Fn. omitted.] Yet, he now serves a prison sentence based on the womens word alone that he tried to rape her. There was no evidence in the record suggesting Jung had harassed defendant, nor would harassment excuse defendants assault.

Defendant also asserts there were legal problems during the jury trial. He complains about something called the Victim Protection Act, and that the law . . . says that even the touching of anothers hand is sexual battery. Concerning the Victim Protection Act, we do not know what law or statute defendant is referring to. As for his complaint about sexual battery, defendant was charged with violating Penal Code section 220. That section is violated if defendant assaults a person with the intent to commit rape. (People v. Lutes (1947) 79 Cal.App.2d 233.) We fail to see the contradiction in that particular law. The question for the jury was whether defendant assaulted Jung with the intent to rape her, or whether the assault followed an attempt to have consensual sex. The jury found the former, and ample evidence supports the conviction. Defendant argues that it needed to be clearly impressed upon the jury that the fact that [I] attempt sex does NOT constitute rape. The trial court adequately instructed the jury concerning the charged crime and the uncharged included offense of assault, and the attorneys emphasized the distinction in their closing arguments.

Defendant also asserts the biggest problem with this particular case occurred before trial, i.e., Jung gave false statements to the police officer. Of course, defendant received an opportunity to attack the victims credibility. Defendants attorney cross-examined the victim about her testimony, prior statements, and omissions.

Contrary to defendants claim, the police did not determine who [was] guilty, the jury did. And it was for the jury following the trial, not the judge before trial, to decide whether the victim was truthful. Similarly, defendants argument that there is a pretrial process during which the judge first gets to consider the legal aspects and decides on whether the charges are fair or not, and prevents unfair cases from going to trial, misapprehends the respective roles of judge and jury. The judge does not decide whether the charges are fair, but whether there is sufficient evidence to submit the case to a jury.

Finally, defendant asserts he has learned that one cannot be punished doubly based on two charges from one case. He suffered only one conviction and one punishment.

We have found no other arguable issues. The judgment is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

BEDSWORTH, J.

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