Filed 10/4/18 P. v. Simental CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Jose Simental was sentenced to prison for a term that included life without the possibility of parole after a jury convicted him of several sexual offenses against two minors. He contends: (1) the court erred in denying his motion under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (2) there was no substantial evidence of force, violence, duress, menace or fear as to one count of Penal Code section 288, subdivision (b)(1);[1] (3) the trial court should not have instructed the jury on a legally erroneous theory of duress with respect to section 288, subdivision (b)(1); (4) there was no substantial evidence appellant entered the home of one victim with the intent necessary to support a one-strike allegation of “aggravated” burglary under section 667.61, subdivision (d)(4); and (5) the instructions did not adequately define the intent required. We affirm.

I. FACTS AND PROCEDURAL HISTORY

In July 2012, appellant, who was born in 1985 and was then 27 years old, saw Jane Doe III[2] at a park and sent her an instant message on Facebook a couple of days later. Jane Doe III’s Facebook profile showed her true age, which was 15. Over the next few days, they exchanged text messages and Jane Doe III confided in appellant. Eventually, appellant steered the conversation towards sex. They met in person when Jane Doe III invited appellant over. Appellant spoke awkwardly with Jane Doe III’s parents and complained via text message (even though they were in the same room) that Jane Doe III was not paying him sufficient attention. At the front door, as appellant was leaving, he had a confrontation with Jane Doe III that included an attempt to kiss her and an effort to put his hand down her shorts. Appellant left when Jane Doe III’s stepfather arrived.

On April 3, 2013, when he was 28 years old, appellant was convicted of violating section 288, subdivision (c) by committing a lewd act upon Jane Doe IV, who was 14 or 15 years old.^{(See footnote 2.)}

In 2014, appellant was 29 years old and met Jane Doe II, who turned 14 in March 2014, over the Internet. They “talked” about music and exchanged photographs, including inappropriate ones. Jane Doe II did not tell appellant her real age. They met in person when appellant arrived unexpectedly at Jane Doe II’s house one morning after her mother left for work. Appellant grabbed Jane Doe II’s breasts while they were watching television, and she told him to stop, and that she needed to leave for summer school. He came to Jane Doe II’s house on other occasions, and had intercourse with her, which Jane Doe II claimed were rapes, on two occasions. Appellant also brought gifts. Jane Doe II received hostile messages purportedly from her boyfriend Hector; police later found an online account for “hector.torbo#v” on one of appellant’s cell phones.

Appellant met Jane Doe I when he contacted her through the Kik application in November of 2014, when she was 12 years old. She had created a profile which included a photograph, though not her real age. Her parents had taken her out of school intending to homeschool her, and she felt depressed and lonely. Jane Doe fell “in love” with appellant after a few days of chatting, and they exchanged photographs. They chatted about sex, even though Jane Doe I did not want to have sex with appellant. A text from appellant to Jane Doe I referred to oral sex and “eating [her] out” and she replied with “Mmmm,” which signaled hesitation.

They made a plan to meet in person. Jane Doe I confided that she was “not that confident” about sex and appellant assured her, “Don’t worry. We go slow, and you just relax. Let me do all the work. Your job is to feel amazing, moan, and cum all over me okay, baby?” On November 24, 2014, Jane Doe I and appellant agreed he would come to her house at 10 p.m.

Because Jane Doe I’s parents were awake when appellant arrived that evening, he waited for a time in the yard before Jane Doe I’s younger brother let him in through a window. Appellant accompanied Jane Doe I to her room along with her younger brother and sister and they watched a movie on the laptop. Jane Doe I and appellant sat together on the bed and began kissing. Appellant touched her “everywhere” and seemed “pushy” compared to his online persona. Jane Doe I pushed appellant into the closet when she heard her mother come into the room. Jane Doe I’s mother took the laptop, sent the brother and sister to bed, and closed the door behind her. Appellant came out of the closet and sat on Jane Doe I’s bed, where he started touching her breasts and roughly pushing his body against hers. Jane Doe I no longer wanted appellant to kiss her and she did not want him on top of her.

Jane Doe I’s mother came into her room a second time and saw appellant. Jane Doe I said appellant was a friend, and Jane Doe I’s mother became angry and called the police. Appellant tried to run out the front door but was restrained by Jane Doe I’s stepfather. When a deputy arrived, appellant had to be restrained and falsely claimed to be 16.

After his apprehension at Jane Doe I’s house, appellant was charged by information as follows: forcible lewd act upon a child under 14 in violation of section 288, subdivision (b)(1) (count 1; Jane Doe I as victim); two counts of lewd act upon a child under 14 in violation of section 288, subdivision (a) (counts 2 & 3; Jane Doe I as victim); first degree residential burglary in violation of section 459 (count 4); contact with a minor for sexual purposes in violation of section 288.3, subdivision (a) (count 5; Jane Doe I as victim); meeting a minor for lewd purposes in violation of section 288.4, subdivision (b) (count 6; Jane Doe I as victim); two counts of forcible rape in violation of section 261, subdivision (a)(2) (counts 7 and 8; Jane Doe II as victim); two counts of lewd act upon a child age 14 to 15 in violation of section 288, subdivision (c)(1) (counts 9-10; Jane Doe II as victim); and stalking in violation of section 646.9, subdivision (a) (count 12; Jane Doe II as victim). It was also alleged under the one-strike law that appellant had committed counts 1 through 3 and counts 7 through 8 during the commission of a burglary in violation of section 667.61, subdivision (a)(4) and against more than one victim under section 667.61, subdivision (E)(4).

A jury convicted appellant of all but the rape counts and found true the burglary allegation. Appellant was sentenced to serve a term of life without the possibility of parole pursuant to section 667.61, subdivision (j)(1) on count 1, plus six years.

II. DISCUSSION

A. Batson-Wheeler

Appellant contends the case must be remanded because the trial court erroneously denied his motion under Batson-Wheeler. We disagree.

1. Background.

Prospective Juror Jason G. was 20 years old and identified himself on the written juror questionnaire as “Spanish and African American.” He was single and unemployed and did not have any children. Juror G. had never been the victim of a violent crime and believed the criminal justice system was fair. He initially thought it would be hard to vote to convict based on the testimony of a single witness, but said during voir dire he would follow the rule that the testimony of a single witness was sufficient for a sex count.

Prospective Juror Robert C. was a 64-year-old divorced truck driver with two adult children. He described his ethnicity on the written questionnaire as “Mexican American.” Asked on the written questionnaire whether he believed a person could make a false allegation of sexual assault or molestation, Juror C. answered yes and wrote, “They may be falsly [sic] testify to protect the victim, or subject of interest.” Juror C. had previously served on a criminal jury that could not reach a verdict and wrote that it would be difficult for him to return a guilty verdict if the prosecution proved its case: “Not satisfied of the Evidence to Convict.” When asked about that response during voir dire, Juror C. responded, “I’m sure that I would be sensible enough to convict the person if there was enough evidence.”

Prospective Juror Jorge N. was a 47-year-old production technician with no children who was born in El Salvador and identified his ethnicity as “Latino.” He stated in his written questionnaire that it was possible for a person to make a false allegation about sexual assault or molestation, but he would not hesitate to return a guilty verdict supported by the evidence. Asked during voir dire about concerns he might have about sitting in judgment as to whether people were telling the truth, he stated,” Well, that’s – you know, where we’re going to see what they have to say, and the evidence, right? I mean, because that’s – it has been mentioned before, you know, people lie sometimes and, you know, that’s why we’re here, to find out.”

The prosecutor used six of his peremptory challenges against six male (apparently non-Hispanic) prospective jurors on March 3, 2016 and seven peremptory challenges against seven male jurors on March 7, 2016. The last seven included challenges against Jurors G., C. and N., in that order. When the prosecutor excused Juror N., defense counsel made a motion under Batson-Wheeler, arguing N. was being excused because he was a Hispanic male. Defense counsel noted the prosecutor had excused Jurors G. and C., who were also Hispanic or Latino males, and further noted that appellant fell into this category and that the jury currently appeared to be predominantly Caucasian.

The court denied the defense motion, ruling that there was no inference of discrimination and the defense had not made a prima facie case of discrimination. It allowed the prosecutor to provide his reason for the challenges and the prosecutor stated that he had excused Juror N. because he had no children, did not come into contact with children on a regular basis and he had a “technical and scientific” job which was of the type the prosecutor preferred not to be held by people on juries. With respect to Juror C., he had given responses the prosecutor did not understand, and it was not clear from his responses during voir dire that he was tracking the prosecutor “[a]s well as the fact that he is a divorced person, and he’s a retired truck driver, and quite frankly I think truck drivers are creepy and tend to be pedophiles themselves[.]” Finally, with respect to Juror G., he had little life experience and his response concerning CALCRIM No. 1190, that evidence other than the victim’s testimony was not required to support a sexual offense, was of concern. The trial court did not rule on the validity of these reasons.

The prosecutor brought five more peremptory challenges against four men and one woman before voir dire was complete.

2. General Principles.

Both the federal and state Constitutions prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race, gender, ethnicity or other cognizable grounds. (People v. Scott (2015) 61 Cal.4th 363, 383 (Scott); Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276–277.) Hispanics or Latinos constitute a cognizable group for Batson/Wheeler purposes. (People v. Davis (2009) 46 Cal.4th 539, 584.) Gender is also a protected class. (People v. Carasi (2008) 44 Cal.4th 1263, 1291.) We assume, without deciding, that Hispanic or Latino men constitutes a separate group, distinct from Hispanics generally. (People v. Bonilla (2007) 41 Cal.4th 313, 344 (Bonilla).)

“The familiar Batson/Wheeler inquiry consists of three distinct steps. The opponent of the peremptory strike must first make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. If a prima facie case of discrimination has been established, the burden shifts to the proponent of the strike to justify it by offering nondiscriminatory reasons. If a valid nondiscriminatory reason has been offered, the trial court must then decide whether the opponent of the strike has proved the ultimate question of purposeful discrimination.” (People v. Zaragoza (2016) 1 Cal.5th 21, 42 (Zaragoza); People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).)

There is a rebuttable presumption that a party properly exercised its peremptory challenges, and the burden is on the party opposing a challenge to demonstrate impermissible discrimination. (People v. Parker (2017) 2 Cal.5th 1184, 1211 (Parker).) Indeed, “[t]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Lenix, supra, 44 Cal.4th at pp. 612–613; People v. Manibusan (2013) 58 Cal.4th 40, 75.)

“ ‘Although the question at the first stage concerning the existence of a prima facie case depends on consideration of the entire record of voir dire as of the time the motion was made [citation], we have observed that certain types of evidence may prove particularly relevant. [Citation.] Among these are that a party has struck most or all of the members of the identified group from the venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and “clearly established” in the record [citations] and that necessarily dispel any inference of bias. [Citations.]’ ” (People v. Sanchez (2016) 63 Cal.4th 411, 434–435.)

Unless a trial court applies the wrong standard (which it did not do here),[3]

we review a first-prong ruling for substantial evidence. (People v. Rushing (2011) 197 Cal.App.4th 801, 809.) “ ‘The determination of whether a defendant has established a prima facie case “is largely within the province of the trial court whose decision is subject only to limited review. [Citations.]” [Citation.] On appeal, we ‘examine the entire record of voir dire for evidence to support the trial court’s ruling. [Citation.] Because of the trial judge’s knowledge of local conditions and local prosecutors, powers of observation, understanding of trial techniques, and judicial experience, we must give “considerable deference” to the determination that appellant failed to establish a prima facie case of improper exclusion. [Citation.]’ [Citation.] ‘If the record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question, we affirm.’ [Citation.]’ ” (Ibid.; see also Bonilla, supra, 41 Cal.4th at p. 341; People v. Neuman (2009) 176 Cal.App.4th 571, 579–581.)

3. Analysis.

This case concerns the first step of the Batson/Wheeler inquiry, that is, whether the trial court correctly determined that appellant failed to make a prima facie case of discriminatory purpose based on the totality of the relevant facts, including any nondiscriminatory reasons for the challenge that were clearly established in the record. (Scott, supra, 61 Cal.4th at p. 384; Zaragoza, supra, 1 Cal.5th at p. 43.) We conclude no reversal or remand is required.

First, the mere fact that the prosecutor used three challenges to exclude Hispanic or Latino men does not itself give rise to an inference of discrimination. (See People v. Clark (2011) 52 Cal.4th 856, 905 [no prima facie case where four of five African American prospective jurors excused].) The size of the sample is simply too small to draw an inference of discrimination, and claims consisting of no more than “an assertion that a number of prospective jurors from a cognizable group had been excused” are “particularly weak.” (People v. Panah (2005) 35 Cal.4th 395, 442.)

Second, the record discloses nondiscriminatory reasons for the challenges. Prospective Juror G. was young, inexperienced and unemployed, factors that militated against keeping him on the jury. (People v. Perez (1994) 29 Cal.App.4th 1313, 1328.) Prospective Juror C. gave an answer on his written questionnaire suggesting he would hesitate to return a guilty verdict. Prospective Juror N. did not have any children despite his age (in a case involving child victims) and did not appear to have much contact with children.

Third, the questioning of the three jurors was not “desultory,” as the prosecutor asked them the same types of questions as the other jurors and spent a comparable amount of time with them. (See People v. Cleveland (2004) 32 Cal.4th 704, 733.)

Finally, while the prosecutor struck all three of the Hispanic or Latino men in the jury box at the time, there were other Hispanic men on the venire.

Though we might have ruled differently than the trial court in the first instance, given our deferential standard of review in this case, we see no basis for reversing the trial court’s conclusion that no prima facie case was established for Batson/Wheeler purposes.

B. Substantial Evidence of Force

Appellant argues his conviction of forcible lewd conduct with a child under section 288, subdivision (b)(1) (count 1) must be reduced to the lesser offense of non-forcible lewd conduct under section 288, subdivision (a), because there was no substantial evidence he committed the crime using force or duress. We disagree, because we find evidence of force.

Our role in evaluating the sufficiency of the evidence is a limited one. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We review the entire record in the light most favorable to the judgment to determine whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Jackson v. Virginia (1979) 443 U.S. 307, 319 [].)” (People v. Earp (1999) 20 Cal.4th 826, 887.) We presume in support of the judgment every fact the trier could reasonably deduce and every inference the trier could reasonably draw from the evidence. (People v. Davis (1995) 10 Cal.4th 463, 509.) We may not substitute our judgment for that of the jury by second-guessing its credibility determinations or reweighing the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In the end, “it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. . . . If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (Ceja, at p. 1139.)

Section 288, subdivision (a) “prohibits the commission of a lewd or lascivious act on a child under age 14 done with the intent to arouse or satisfy the sexual desires of the perpetrator or the child.” (People v. Soto (2011) 51 Cal.4th 229, 237 (Soto).) Section 288, subdivision (b)(1) “further prohibits the commission of such an act ‘by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. . . .’ ” (Ibid.) The force used to support a finding under section 288, subdivision (b)(1) must be “

‘substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’ ” (Id. at p. 242.) This “includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves.” (People v. Alvarez (2009) 178 Cal.App.4th 999, 1005.) The victim’s consent to the act, while it might render the use of force unnecessary, “ ‘does not eliminate the fact that the defendant actually uses violence, compulsion or constraint in the commission of the lewd act, nor does the victim’s consent diminish the defendant’s culpability or immunize the defendant from suffering the penal consequences that arise from a forcible lewd act.’ ” (Soto, at p. 245.)

Here, Jane Doe I testified that when they were alone in the bedroom, appellant got on top of her and pressed his whole body against her. She “kind of” “freaked out cuz’ it just came out of nowhere.” Appellant touched Jane Doe I’s breasts and kissed her hard and “was starting to just like get rough.” Jane Doe I did not want appellant on top of her and was scared he would try to have sex with her; she was “relieved” when her mother walked in. This testimony provided ample evidence of force substantially greater than that required to accomplish the lewd act itself. (See People v. Pitmon (1985) 170 Cal.App.3d 38, 48, overruled on other grounds; Soto, supra, 51 Cal.4th 229 [substantial evidence of force where defendant “slightly pushed” victim’s back during acts of oral copulation].)

The jury in this case was instructed on the elements of forcible lewd act and non-forcible lewd act as a lesser and necessarily included offense. That a reasonable trier of fact might have found appellant’s conduct non-forcible does not render the evidence insufficient.

C. Theory of Duress

Appellant next argues his conviction of forcible lewd conduct with a child under section 288, subdivision (b)(1) (count 1) must be reduced to the lesser offense of non-forcible lewd conduct under section 288, subdivision (a), because the jury was instructed on the “legally erroneous” theory of duress in addition to the legally valid theory of force. Appellant submits that at best the evidence shows Jane Doe I complied because she feared “losing him as a friend,” and argues this motivation was insufficient to establish duress as a matter of law. We disagree there was prejudicial error.

Even if we assume there was no sufficient evidence of duress, the issue is one of factual rather than legal insufficiency. (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).) When an appellate court determines that a trial court has presented a jury with two legally valid theories supporting a conviction—one factually valid (because it is supported by sufficient evidence) and one factually invalid (because it is not)—the conviction must be affirmed unless the “record affirmatively demonstrates. . . that the jury did in fact rely on the [factually] unsupported ground.” (Ibid.) This reflects the view that jurors are “well equipped” to sort factually valid from invalid theories. (Id. at p. 1125.; see also People v. Perez (2005) 35 Cal.4th 1219, 1232-1233.)[4]

Here, the trial court gave the standard version of CALCRIM No. 1111, which defined duress as “the use of a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to do or submit to something that he or she would not otherwise do or submit to. When deciding whether the act was accomplished by duress, consider all of the circumstances, including the age of the child and her relationship to the defendant.” This was not a legally invalid theory, such as instruction on the felony murder rule in a case where it does not apply as a matter of law due to the merger rule or an instruction that first degree premeditated murder can be predicated on the natural and probable consequences doctrine. (Cf. People v. Chiu (2014) 59 Cal.4th 155, 167; People v. Chun (2009) 45 Cal.4th 1172, 1205; In re Hansen (2014) 227 Cal.App.4th 906, 910–911, 921–922.)

There was no indication in the record that the jury convicted appellant under section 288, subdivision (b)(1) based on a theory of duress rather than force, as appellate counsel acknowledged at oral argument. Any error in instructing on duress was harmless. (Guiton, supra, 4 Cal.4th at p. 1120.)

D. Enhanced Sentencing under One-Strike Law

Appellant challenges the imposition of a one-strike sentence of life without the possibility of parole under section 667.61, subdivision (j)(1), based on a finding that he committed a burglary under section 667.61, subdivision (d)(4). He contends (1) there was no substantial evidence he knew Jane Doe I was under 14 years of age when he entered the house and he therefore lacked “the intent to commit an offense specified in [section 667.61,] subdivision (c)” as required. He also contends the instructions on the subject did not adequately advise the jury of this required intent. Because these issues require an overlapping analysis of the one-strike law, we consider them together.

1. One-strike Law and Findings in thisCcase.

Section 667.61, the one-strike law, “sets forth an alternative, harsher sentencing scheme for certain forcible sex crimes.” (People v. Mancebo (2002) 27 Cal.4th 735, 738; see also People v. Jones (1997) 58 Cal.App.4th 693, 703.) It provides in relevant part:

“(a) Except as provided in subdivision (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life.

“(b) Except as provided in subdivision (a), (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.

“(c) This section shall apply to any of the following offenses: [¶] . . . [¶] . . . [¶] . . .

“(4) Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶] . . . . [¶] . . . . [¶] . . . .

“(8) Lewd or lascivious act, in violation of subdivision (a) of Section 288. [¶] . . . .

“(d) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . [¶] . . . [¶] . . .

“(4) The defendant committed the present offense during the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, with intent to commit an offense specified in subdivision (c). [¶] . . . . [¶] . . . . [¶] . . . .

“(e) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . .

“(2) Except as provided in paragraph (4) of subdivision (d), the defendant committed the present offense during the commission of a burglary in violation of Section 459. [¶] . . . . [¶] . . . . [¶] . . . . [¶] . . . . [¶] . . . . [¶] . . . . [¶] . . . . [¶] . . . . [¶] . . . .

“(j) [¶] (1) Any person who is convicted of an offense specified in subdivision (c), with the exception of a violation of subdivision (a) of Section 288, upon a victim who is a child under 14 years of age under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), shall be punished by imprisonment in the state prison for life without the possibility of parole. Where the person was under 18 years of age at the time of the offense, the person shall be punished by imprisonment in the state prison for 25 years to life.

“(2) Any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life. . . .”

Thus, section 667.61 allows the court to impose a sentence of 25 years to life when the trier of fact finds as a single circumstance “[t]he defendant committed the present offense during the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, with intent to commit an offense” that includes non-forcible and forcible lewd conduct. (§ 667.61, subds. (a), (c)(4) & (8), (d)(4).) It allows the court to impose a sentence of 15 years to life when the trier of fact finds as a single circumstance that the crime was committed during the commission of all other burglaries. (§ 667.61, subd. (e)(2).) These sentences increase to life without the possibility of parole and 25 years to life, respectively, when the defendant is convicted, as appellant was here, of forcible lewd conduct under 288, subdivision (b). (§ 667.61, subd. (j)(1) & (2).)

The jurors in this case were given a modified version of CALCRIM No. 3180, which instructed them they could return a true finding on the one-strike allegation as to counts 1 through 3, involving Jane Doe I, if they found: “1. The defendant entered a building; [¶] 2. When the defendant entered the building, he intended to commit . . . Forcible Lewd Act upon a Child in violation of Penal Code Section 288(b), or Lewd and Lascivious Act upon a Child in violation of Penal Code Section 288(a); [¶] AND [¶] 3. After the defendant entered the building, he committed . . . Forcible Lewd Act upon a Child in violation of Penal Code Section 288(b), or Lewd and Lascivious Act upon a Child in violation of Penal Code Section 288(a).”[5] They returned true findings on counts 1 through 3.

2. Sufficiency of the Evidence of Burglary.

Appellant argues that we should set aside the true findings of burglary under section 667.61, subdivision (d)(4) on counts 1 through 3 because those findings were only appropriate if he knew Jane Doe I was under 14 when he entered the home. He reasons as follows: (1) aggravated burglary under section 667.61, subdivision (d)(4) requires the “intent to commit an offense specified in subdivision (c),” which includes forcible and non-forcible lewd conduct under section 288, subdivisions (a) and (b)(1); (2) forcible and non-forcible lewd conduct under section 288, subdivisions (a) and (b)(1) both require a victim under 14; and (3) there was no evidence that when he entered the home of Jane Doe I, whom he was meeting for the first time, he knew she was under 14. He “assumes without conceding” the evidence is sufficient to show he knew Jane Doe I was 14 or 15 before he entered the house, but disputes that he knew she was under 14 when she never told him as much and all he had to go by was online photos. We disagree that the evidence was legally insufficient.

The one-strike allegation under section 667.61, subdivision (d)(4), required the People to prove that at the time of the burglary, the defendant harbored the intent to commit one of the offenses enumerated in section 667.61, subdivision (c).[6] When the underlying act is forcible or non-forcible lewd conduct with a child under 14 under section 667.61, subdivision (c)(4) or (c)(8), the defendant must intend that his victim be under 14. In People v. Hanna (2013) 218 Cal.App.4th 455, 461–462, the court held it was error to deny a mistake-of-fact instruction in an attempted lewd conduct prosecution, which requires the specific intent to commit a lewd act on a child under 14, even though mistake of fact does not apply, as a matter of public policy, to the completed offense. (See People v. Olsen (1984) 36 Cal.3d 638, 648–649.) “Defendant, however, was not charged with committing a lewd act. He was charged with attempting to commit a lewd act. [¶] ‘ “ ‘An attempt to commit any crime requires a specific intent to commit that particular offense . . . .’ ” ’ [¶] . . . . [¶] To attempt a violation of section 288, subdivision (a), the defendant must have specifically intended to commit a lewd act on a child under 14 years of age. If defendant’s intent was to commit a lewd act on an 18 year old, he cannot by definition be guilty of an attempt to commit a lewd act on a 13 year old.” (Hanna at pp. 461–462.) The one-strike allegation under section 667.61, subdivision (d)(4) in this case is analogous to Hanna, as it requires the intent to commit a violation of section 288, subdivision (a) or (b), not merely that completed offense.

Thus, the question of whether the evidence was sufficient boils down to whether the jury could conclude appellant entered the house with the intent to commit a lewd act on a child under 14. The answer to this question was inherently factual. “ ‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) “It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955; People v. Young (2005) 34 Cal.4th 1149, 1181.)

Here, the evidence showed that appellant had a picture of Jane Doe I before he entered her house, and the jury knew what she looked like from a photograph taken on the night of the offense. From this, the jury could reasonably infer that appellant knew Jane Doe I was under 14 when he entered the house, and consequently that he intended to commit a lewd act on a child under 14. Although appellant focuses on the fact that Jane Doe I claimed to be at least 13 when she signed up for her Kik account and texted him about graphically sexual subjects, thus suggesting she was 14 or older, it was up to the jury to determine appellant’s intent. “[T]he outward physical appearance of an alleged minor may be considered in judging his age.” (People v. Kurey (2001) 88 Cal.App.4th 840, 847.) Appellant saw photographs of Jane Doe I before he entered the house, and the evidence was sufficient to uphold the jury’s finding.

Because the evidence was sufficient to support the one-strike finding, we need not consider appellant’s alterative claim that he was not adequately charged with “simple” burglary under section 667.61, subdivision (e)(2), and cannot be sentenced as though that provision had been found true as an alternative to sentencing under section 667.61, subdivision (d)(4).

E. Instruction on Section 667.61, Subdivision (d)(4) Allegation.

We also reject the claim that the instruction on section 667.61, subdivision (d)(4) was inadequate because it did not specifically advise the jurors they could only find the one-strike provision true if they found that appellant believed Jane Doe I was under 14 when he entered the house. The jurors were instructed that they could only find the allegation under section 667.61, subdivision (d)(4) true if they found appellant intended to commit a violation of section 288, subdivision (a) or (b)(1) when he entered the home. They were also told, “To decide whether the defendant intended to commit Forcible Lewd Act upon a Child in violation of Penal Code Section 288(b), or Lewd and Lascivious Act upon a Child in violation of Penal Code section 288(a), please refer to the separate instructions that I have given you on those crimes.”

Thus, the jury was told appellant needed to intend to commit a lewd act against a child under 14, by force if necessary, when he entered the house. This was an accurate statement of the law and no more was required absent a request. (People v. Hughes (2002) 27 Cal.4th 287, 361.) “ ‘While a court may well have a duty to give a “pinpoint” instruction relating such evidence to the elements of the offense and to the jury’s duty to acquit if the evidence produces a reasonable doubt, such “pinpoint” instructions are not required to be given sua sponte and must be given only upon request.’ ” (People v. Anderson (2011) 51 Cal.4th 989, 996–997.) Here, defense counsel did not request a pinpoint instruction.

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

BRUINIERS, J.

(A148282)