P. v. Thomas

Filed 3/28/07 P. v. Thomas CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Three women identified defendant Marlon Eugene Thomas as their assailant. The defense focused on the inconsistencies between their descriptions, the flaws in the photographic and live lineups and fingerprint evidence, the lack of DNA evidence, and, in the case of one of the victims, the fact that her sexual allegations enlarged over time. The jury hung on the counts involving two of the women but as to the third found defendant guilty of misdemeanor battery and misdemeanor assault (Pen. Code, 242, 240 -- count one),^[1]misdemeanor battery and misdemeanor assault (count two), and assault with intent to commit rape ( 220 -- count three).

Defendant was sentenced to state prison for the low term of two years. The Attorney General concedes that the convictions for misdemeanor assault must be reversed because they are lesser included offenses of battery.

On appeal, defendant does not challenge the sufficiency of the identity evidence. Given the victims composite drawing, multiple identifications, and the fingerprint evidence, defendant challenges only the sufficiency of the evidence that he intended to rape the victim during the assault. However, the limited scope of appellate review compels us to uphold the jury verdict. We reverse the convictions for assault and in all other respects must affirm the judgment.

FACTS

We need not recite the facts of the assaults of two of the women since defendant was not convicted of those counts, other than to say neither womans identification was convincing; at one point during the investigation all three women met and conversed, despite admonitions not to; and the police officers who conducted the live lineup lost the photographs of the subjects in the lineup. Interestingly, all three women stated their assailant had no facial hair. Defendant has had a beard and/or mustache since he was a teenager.

At approximately 2:00 a.m. on Sunday, August 29, 2004, the victim awoke and decided to check on the safety of a car she was trying to sell in the parking lot of the Quick Trip Mart near her home. Alone and clad in shorts, a tank top, and a big shirt without underwear or a bra, she drove over to the Quick Trip Mart. A Black man startled her by knocking on her window. They engaged in a little chitchat. The victim testified she asked the man if he was stoned and he responded that he had been drinking. Her window was down slightly, and the man tried to reach in to shake her hand. The victim suggested he go home.

After he was gone, the victim jumped out of her car, leaving the engine running and the door open, and got into the Pontiac she was trying to sell. The man reappeared. [F]reaked . . . out and afraid he was going to steal her car, she stepped forward toward the man but warned him not to come any closer to her. He calmed down momentarily and then lunged at her.

The man struck the victim on the forehead with his fist. As he hit her several more times, the victim backed into the passenger seat of the Pontiac. He lunged in after her, but his feet remained on the ground. According to the victim, the man struck her about 30 times and she fought back, kicking and swinging as hard as she could. During the struggle, he grabbed her crotch and this infuriated her. She tried to gouge his eye. He held her arms down and was on top of her. She kicked furiously. She told an investigating police officer she believed the man was going to rape her.

He did not say anything during the attack. Eventually he stood up, got out of the car, and was messing with his belt and his pants. When she screamed, he started walking away and then began running.

The victim testified that the area was well lit and she was able to get a good look at the mans face. She described him as being around 28 years old, at least six feet tall, 175 to 180 pounds, with black hair, brown skin, brown eyes, big white teeth, and no facial hair. She later worked with law enforcement and created a composite drawing of her assailant without facial hair and with large straight white teeth. The composite was admitted as evidence at trial.

On the night of the attack, the victim told a male police officer that her assailant had his hand on the outside of her shorts. She asserted to both the male officer and a female officer that he had not penetrated her. In a follow-up interview several days later, however, she claimed the mans finger had penetrated her vagina. At trial, she testified she told officers on the night of the assault that the man had penetrated her but she was confused about whether penetration referred only to the penis.

Investigators found one of defendants fingerprints on the Pontiac. The print was lifted from the roof of the car extending over the door. After the print was identified, the victim participated in a photographic lineup. The fourth picture startled her and made her uncomfortable. She stated there was something about his eyes and she believed the picture was of her assailant, but she was not sure. She commented, [T]he lighting was not very good so I cannot be absolutely sure about the facial hair. Defendants picture was in the fourth position. She later identified defendant as the assailant in a live lineup.

The victim refused medical care. She did not undergo an examination, but she did put her clothes in a bag when she got home. There was no DNA evidence available at trial.

Defendant was arrested while he was at home with his parents. He was taken into custody and transported to the jail wearing only his boxer shorts. During an ensuing search of the residence, the investigators did not find clothing matching the description provided by the victim. Law enforcement officers interviewed defendant, and a videotape of the interview was played for the jury at trial. Defendant denied committing the assault; at one point, he said that on the night of the assault he had gone to the Aqua club and got home about 2:00 a.m. A friend testified that he and defendant went to Club Aqua every Saturday night and stayed until about 2:00 a.m.

The victim had parked the Pontiac in the Quick Trip Mart parking lot for several days. Defendant, who did not have a car, walked to the Quick Trip Mart regularly. Defense counsel argued the fingerprint lifted from the Pontiac could not have been placed on the car during the altercation as described by the victim because of the angle of the print and the fact that the door was always open during the victims version of the assault. Because the print extended from the roof and over the door, the door would have been closed when defendant touched the car and left his print.

DISCUSSION

I

Defendant urges us to reverse his conviction for assault with the intent to commit rape because there is insufficient evidence he specifically intended to have sexual intercourse with the victim. He points out he never said anything that indicated he intended to rape her, did not disrobe, did not fondle her, and did not threaten her. While the evidence demonstrated that he was in a violent confrontation with the victim, there was scant evidence of any sexual motivation, too scant in defendants view to sustain the conviction.

It is true that an assault to commit rape requires an intent to have sexual intercourse and to use force to overcome the victims resistance. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597 (Craig).) But defendant gives short shrift to the deferential scope of appellate review of a substantial evidence challenge. We remain constrained by the well-worn principle that we must review the whole record in the light most favorable to the jury verdict to determine whether there is any reasonable and credible evidence of solid value such that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) While engaging in this review, we must presume the existence of every fact the jurors could reasonably deduce from the evidence. (People v. Davis (1995) 10 Cal.4th 463, 509 (Davis).)

We agree with defendant that the evidence is not as strong as it was in Craig and Davis. In Craig, the defendant forcibly grabbed the victim by the hair, pushed her back into the drivers seat of her car, and placed his hand flat against her chest, touching both of her breasts outside her bra. (Craig, supra, 25 Cal.App.4th at pp. 1595-1596.) The facts are similar to the victims testimony at trial that defendant digitally penetrated her. But the jury acquitted defendant of the two counts predicated on this testimony. In Davis, the defendant drove the victim to an isolated area and, despite her protests, aggressively fondled her breasts and crotch. He forcibly prevented her from escaping. By pretending she would have sexual intercourse with him in a motel room, she tricked him into leaving, and when they stopped at a gas station, she solicited help. He grabbed her, but she eluded his grasp and screamed, and he fled. (Davis, supra, 10 Cal.4th at p. 510.)

In both cases, the defendants conduct was overtly sexual. Here, in the absence of the digital penetration, the conduct is more ambiguous. The victim told the investigating officer on the night of the assault that defendant was on top of her in the car, she believed she was going to be raped, and when he stood up, he was messing with his belt and his pants. Defendant contends these facts are more analogous to those found insufficient to support a conviction for assault with the intent to commit rape in People v. Greene (1973) 34 Cal.App.3d 622 (Greene).

We agree with defendant that the victims subjective fear is not dispositive, nor alone would her fear constitute substantial evidence of his intent. (Greene, supra, 34 Cal.App.3d at p. 651.) But we do not find the facts of Greene analogous. In Greene, the defendant, who was then 18 or 19 years old, approached his 16-year-old victim, put his arm around her waist, and told her he wanted to play with her. (Id. at p. 650.) While she, like the victim in our case, was afraid she would be raped, the defendants statement and behavior suggested that rape was not his goal. By contrast, defendant here violently subdued the victim and restrained her despite her forceful resistance. There is absolutely no evidence he intended to rob her, nor is there any indication of another motive for his attack. Rather, he pushed her into the car and lay on top of her. When he stood, he started messing with his belt and his pants until the victim began screaming and he fled.

Thus, a rational juror could conclude that defendant did intend to rape the victim. He gave no indication, as in Greene, of another explanation for his aggressive behavior. While he did not have the opportunity to unzip his pants and penetrate the victim, the crime is complete if at any moment during the assault the accused intends to use whatever force may be required to have sexual intercourse. (Davis, supra, 10 Cal.4th at p. 509.) There is no question he applied the requisite force, and we must conclude on this record that it was the jurors prerogative to infer the requisite intent from his use of force, coupled with lying on top of the victim and his possible attempt to undo his buckle and unzip his pants. Defendant suggests that given the violent nature of the struggle and the victims determined resistance, the jury could have concluded he was straightening his clothes and regaining his composure. But that is not to say a rational juror might not reach a different conclusion. As a result, we must draw those inferences in support of the jurys factual findings, and that includes that defendant intended to have sexual intercourse with his victim. Simply put, there is sufficient evidence to support the conviction.

II

Defendant was charged with one count of forcible sexual penetration with a foreign object and one count of assault with the intent to commit forcible sexual penetration with a foreign object (counts one and two). As to each count, the jury convicted him of the lesser included offense of misdemeanor battery and the lesser included offense of misdemeanor assault. Both sides agree the assault convictions must be reversed because they are a lesser included offense of battery. We agree. A defendant cannot be convicted of both assault and battery on the same victim, and when a defendant is convicted of a greater and a lesser included offense, the conviction for the lesser offense must be reversed. (People v. Lopez (1975) 47 Cal.App.3d 8, 15; People v. Pearson (1986) 42 Cal.3d 351, 355.)

But defendant goes further and would have us reverse one of the battery convictions because, he contends, they were based on the commission of the same act against the same victim. Indeed, in the cases he cites the defendants were convicted of multiple crimes based on a single act. For example, in People v. Craig (1941) 17 Cal.2d 453, the defendant was convicted of two counts of rape based on a single act of intercourse. Similarly, in People v. Ryan (2006) 138 Cal.App.4th 360, 371, the defendant was convicted of multiple counts of forgery when they were all based on forgery of the same instrument.

Here, by contrast, the multiple convictions of battery were not based on the same act. The victim testified that defendant struck her up to 30 times. Each of these unlawful touchings could have supported a battery conviction. As a result, defendants authority is inapposite, the two misdemeanor battery convictions are proper under Penal Code section 954s proviso that the defendant may be convicted of any number of the offenses charged, and there is no merit to defendants argument that we must reverse one of the two battery convictions.

DISPOSITION

Defendants convictions for misdemeanor assault on counts one and two are reversed. In all other respects, the judgment is affirmed.

RAYE , J.

We concur:

SIMS , Acting P.J.

MORRISON , J.

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