P. v. Crank

Filed 5/26/06  P. v. Crank CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  J. Thompson Hanks, Judge.  Affirmed in part and reversed in part.

            Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Melissa A. Mandel and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

            Following a jury trial, defendant was found guilty of two counts of assault to commit rape (Pen. Code, § 220)^[1] (counts 1 and 3) and three counts of lewd and lascivious conduct upon a child under the age of 16 years and more than 10 years younger than defendant (§ 288, subd. (c)(1)) (counts 5, 6, and 7).^[2]  Defendant was sentenced to a total term of seven years four months in state prison as follows: the middle term of four years on count 1, plus one year four months on count 3, plus consecutive eight-month terms on counts 5 through 7. 

            On appeal, defendant contends (1) the trial court erred in allowing the People to try him on a charge (count 7) that had been dismissed pursuant to section 995; (2) the trial court erred in denying his motion for judgment of acquittal as to one of the lewd and lascivious charges (count 7) pursuant to section 1118.1; and (3) there was insufficient evidence to support the jury's verdict that he committed counts 1 and 3.  We find that the trial court erred in denying the section 1118.1 motion as to count 7 but reject defendant's remaining contentions.

I

FACTUAL AND PROCEDURAL BACKGROUND

            When she was 14 and 15, the victim, Jane Doe, was living with her mother, brother, and defendant (her stepfather).  She was 16 years old at the time of her testimony.

            In early May 2003, when Jane was 14 years old, she fell asleep on the living room couch.  She awoke to defendant touching her breasts about 3:30 a.m. (count 5).  Defendant, while holding Jane's wrists down, continued to attempt to touch her breasts.  Jane told him to stop, but he held her for approximately four to five minutes.  He then apologized and backed away.  Jane went to her room. 

            In July or August 2003, when Jane was 15, the air conditioning was broken in Jane's home, and it was very hot.  She therefore decided to sleep in her underwear.  Jane was awakened by defendant as she slept on her back in her bed.  Defendant took the covers off.  Jane covered herself and rolled onto her stomach.  Defendant grabbed her wrist and tried to roll her back over, saying, â€