P. v. Garcia

Filed 9/22/08 P. v. Garcia CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge.

Hayes H. Gable III, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

Appellant, Francisco Guzman Garcia, challenges his conviction for attempting to commit a lewd and lascivious act upon a child (Pen. Code,  664/288, subd. (c)(1)). According to appellant, the evidence was insufficient to establish that he intended to touch the child.

As discussed below, there is sufficient evidence to support the jurys verdict. Accordingly, the judgment will be affirmed.

BACKGROUND

In the early morning, 14-year-old M.R. awoke to find appellant standing an arms length away and looking down at her. She recognized appellant as the next-door neighbor who had been to the house the evening before. M.R. told appellant to leave and he appeared to do so.

Shortly thereafter M.R. again woke up to find appellant standing in front of her. He was closer to her than before. Appellant had his penis exposed and was masturbating. M.R. asked appellant what he was doing and he replied Nothing, nothing. Appellant then covered himself with his shirt. When M.R. asked appellant to leave, he walked away while continuing to masturbate.

A conviction for committing a lewd and lascivious act upon a child in violation of section 288 requires a touching of the childs body. (People v. Martinez (1995) 11 Cal.4th 434, 444.) Here, appellant did not touch M.R. Consequently, appellant was charged with attempting to commit a lewd and lascivious act.

The prosecutions theory of the case was that appellant intended to touch M.R. by ejaculating on her. The jury was instructed that the requisite touching could be done indirectly by causing an object or substance to touch the other person. Based on the above evidence, the jury found appellant guilty of the attempt.

Appellant contends there was no evidence that he intended to ejaculate on M.R. and that the jury could not reasonably infer the existence of such intent. Therefore, appellant argues, the evidence is insufficient to uphold the conviction.

DISCUSSION

In reviewing a challenge to the sufficiency of the evidence, the appellate court must review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) The court must also presume the existence of every fact that the trier of fact could reasonably infer from the evidence in support of the judgment. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) Unless it is clearly shown that on no hypothesis whatever is there sufficient substantial evidence to support the verdict, the conviction will not be reversed. (People v. Misa (2006) 140 Cal.App.4th 837, 842.) The reviewing courts opinion that the circumstances might also be reasonably reconciled with a contrary finding is irrelevant. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

An attempt to commit a crime requires a specific intent to commit the crime and a direct but ineffectual act done toward its commission. (People v. Kipp (1998) 18 Cal.4th 349, 376.) Mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt. Nevertheless, an act that indicates a certain, unambiguous intent to commit that specific crime, and that is an immediate step in the present execution of the criminal design, is sufficient. (People v. Jones (1999) 75 Cal.App.4th 616, 627.) However, the act need not be the last proximate or ultimate step toward commission of the substantive crime. (People v. Kipp, supra, 18 Cal.4th at p. 376.)

In arguing to the jury that appellants intent was to touch the victim by ejaculating on her, the prosecutor explained that if appellant had just wanted to gratify himself by masturbating in the victims presence, he could have done so from a corner of the room. However, appellant instead chose to position himself in front of the victims face. In other words, by getting very close to the victim while masturbating, appellant was attempting to commit a lewd act.

Appellant argues that it is not more reasonable to suppose that appellant got near the victim to ejaculate on her than it is to infer that he got close to her simply because it was more arousing than standing farther away. However, a conviction will not be reversed simply because the circumstances might be reasonably reconciled with a contrary finding. The jury could reasonably infer that, by standing close to the victims face and masturbating, appellant intended to touch the victim by ejaculating on her.

DISPOSITION

The judgment is affirmed.

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^* Before Wiseman, Acting P.J.; Levy, J.; and Dawson, J.