P.
v. Crawshaw















Filed
1/25/13 P. v. Crawshaw 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NOT
TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

(Colusa)

----






>

THE PEOPLE, Plaintiff and Respondent, v. FRANK ARTHUR CRAWSHAW, JR., Defendant and Appellant.

C071187 (Super. Ct. No. CR52358)

After defendant sexually assaulted a
young family member, a jury found him guilty of penetration with a foreign
object on a minor under 14 (Pen. Code,href="#_ftn1" name="_ftnref1" title="">[1] § 289, subd.
(j)), and lewd act on a minor (§ 288, subd. (a)). Sentenced to six years in prison, defendant
appeals. He contends (1) there was href="http://www.fearnotlaw.com/">insufficient evidence of penetration; (2)
the penetration was by a penis, not an unknown or foreign object as required by
section 289; and (3) the trial court erred by failing to instruct the jury that
penetration with a foreign object is a specific intent crime. We find no prejudicial error and shall
affirm.

>FACTS

Victim’s Trial
Testimony

Defendant went to the victim’s house
with his daughter and grandchild. He
asked the 13-year-old victim if she wanted to go with him to watch movies. The victim, who had been grounded, said
yes. They went to defendant’s house and
watched movies on his bed. Defendant
then asked the victim if she wanted to spend the night. After getting permission from her mother, the
victim said yes. It was the first time
she had spent the night alone with defendant, without his daughter present.

While defendant took a shower, the
victim changed into her pajamas and watched a movie. Defendant, clad in his boxers and a T-shirt,
lay down next to her and extended his hand for her to cuddle under his arm. Defendant got a call from his daughter and
left for a while. Defendant returned
with a beer. He offered some to the
victim, who refused. Defendant kept
asking until she drank some.

The victim got tired and went to
another room to sleep. Defendant came in
and asked if she was asleep. At first,
the victim did not answer, but then said she was tired. Defendant removed the blanket and told the
victim to go to his room. He grabbed her
wrist and lightly tugged her; he led her to his room.

The victim lay down on the bed close
to the wall and defendant joined her. He
kissed her forehead and her lips. The
victim kept her eyes closed. Defendant
whispered he was going to “take [her] virginity.” He turned her over on her back and got on top
of her, then pulled down her pajamas and underpants, and pulled down his
boxers. He tried to put his penis in her
vagina. Defendant tried to enter her
vagina three or four times. Each time he
tried, the victim tossed and turned. She
felt his penis and felt pain.

Defendant stopped trying and went to
the bathroom. The victim left the
house. Defendant came outside, put an
arm around her and asked if she was all right.
The victim did not answer.
Defendant said it was okay; she did not lose her virginity because “his
tool didn’t work” and then laughed.

The victim told defendant she wanted
to go home. He asked if she would tell
her mother; she did not respond. She
asked to go to a friend’s house and defendant told her it was 1:00
a.m. She went and sat in
his truck, where she saw from his phone that it was only 11:00
p.m. At that point, she
was “scared that something was going to happen,” and ran away through the
neighborhood.

The victim knocked on residences’
doors until a woman answered. The victim
was crying and said her uncle had molested her; she asked the woman to call the
police. When the police arrived, the
victim was visibly upset, crying and rocking with her arms folded. The victim said she had just been
molested. The victim told the officer
she kept her eyes closed during the assault and did not see defendant’s
penis. She did “peek” and saw defendant
remove his boxers.

Other Evidence

The victim was taken to a hospital
for a sexual assault examination. Her
hymen was red and there was tenderness to the right of her hymen below the
entrance to the vagina (the fossa navicularis).
The redness and tenderness was consistent with a recent trauma. The victim described vaginal and genital pain
upon penile penetration. Swabs were
positive for fluorescence on the victim’s inner thighs and labia, the lips of
the external genitalia. Semen
fluoresces, as do other substances. No
sperm or semen was found. There was strong
evidence that defendant was a major contributor to the DNA in saliva found on
the victim’s breasts.

Defendant’s Testimony

Defendant denied molesting the
victim. He claimed she got in his bed,
rubbing his legs and licking him, and he told her to go back to her room.









DISCUSSION

I

Sufficient
Evidence of Penetration

Defendant contends there was
insufficient evidence of actual penetration because the victim testified she
felt pain “outside.” He also notes the
nurse testified the general redness of the victim’s hymen could be her own
anatomy.

A violation of section 289 requires
an act of sexual penetration. “‘Sexual
penetration’

is
the act of causing the penetration, however
slight, of the genital or anal opening of any person. . . .” (§ 289, subd. (k)(1), italics added.) “A ‘genital’ opening is not synonymous with a
‘vaginal’ opening.” People v. Quintana (2001) 89 Cal.App.4th 1362, 1367 (>Quintana).) “The vagina is only one part of the female
genitalia, which also include inter alia the labia majora, labia minora, and
the clitoris. [Citations.] Thus, ‘genital’ opening does not necessarily
mean ‘vaginal’ opening.” (>Quintana, supra, 89 Cal.App.4th at p.
1367.) Sexual penetration may be proved
by circumstantial evidence. (>People v. Stevenson (1969) 275
Cal.App.2d 645, 650.)

Here, the victim described to the
nurse feeling pain upon penile penetration.
The nurse found redness and tenderness that was consistent with recent
trauma. Specifically, the victim had
tenderness on the inside right of her hymen and the nurse testified the hymen
is inside the body. On this record, we
hold there was sufficient evidence of penetration of the victim’s genital
opening.

II

Sufficient
Evidence of Unknown Object

Defendant contends that because any
penetration was by defendant’s penis, not an unknown or foreign object, the
elements of section 289 are not met. He
contends count one must be reversed.

Section 289 requires penetration
with a foreign or unknown object. (§
289, subd. (k)(1).) A foreign object
does not include a penis. (§ 289, subd.
(k)(2).) An unknown object may include a penis “when it is not known whether
penetration was by a penis or by a foreign object, substance, instrument, or
device, or by any other part of the body.”
(§ 289, subd. (k)(3).)

Defendant was originally charged
with rape. He waived a preliminary
hearing. Before trial, the People,
without objection by the defense, amended the information to change the charge
from rape to penetration with a foreign or unknown object. Presumably, this change was due to the
concern that the victim, who claimed she had her eyes closed throughout the
assault, could not positively identify the penetrating object as a penis.

At trial, the victim testified
defendant tried to put his penis in her vagina.
She described the attack to the nurse as penile penetration. The victim testified, however, that she had
her eyes closed. She told the police
officer she did not see defendant’s penis; she only peeked to see defendant
remove his boxers. There was no evidence
that the victim was familiar with the feel of a penis. Thus, while the victim reasonably assumed
defendant penetrated her with his penis, she could not be absolutely certain
because she did not see his penis.

As originally enacted in 1978,
section 289 provided a foreign object “shall not include any part of the
body.” (Stats. 1978, ch. 1313, § 1, p.
4300.) Subsequently, a foreign object
included any part of the body except a sexual organ. (Stats. 1988, ch. 404, § 1, p. 1760.) In 1994, the statute was amended to add
penetration with an unknown object, which
included a penis when it was not known if penetration was by a penis or
another part of the body or another object.
(Stats. 1993-94 1st Ex. Sess. 1994, ch. 39, 1,





p.
8713; ch. 40, § 4.5, pp. 8725-8726.)
Where, as here, there is a lack of certainty as to whether the
penetrating object was a penis, section 289 is the proper charge. This case presents the exact situation that
the 1994 amendment to section 289 was designed to address.

III

Failure
to Instruct on Specific Intent

Defendant contends the trial court
prejudicially erred in failing to instruct that penetration with a foreign or
unknown object is a specific intent crime.
We find any error harmless.

Section 289 requires sexual
penetration “for the purpose of sexual arousal, gratification, or abuse.” (§ 289, subd. (k)(1).) The trial court instructed the jury that
sexual penetration by a foreign object was a general intent crime. In defining the elements of the crime, the
court instructed that, “Sexual penetration means penetration, however, slight,
of the genital or anal opening of the other person for the purpose of sexual abuse, arousal or gratification.”

Citing People v. White (1986) 179 Cal.App.3d 193 (White), defendant contends section 289 is a specific intent
crime. In White, the court instructed, “‘That the penetration was done with
the purpose and specific intent to
cause sexual gratification, arousal or abuse.’”
(White, supra, 179 Cal.App.3d
at p. 204, italics added.) The reviewing
court found no instructional error. (>White, supra, at p. 206.) In People
v. Senior (1992) 3 Cal.App.4th 765, at page 776, the appellate court
stated, “The only specific intent involved in foreign object penetration is
‘the purpose of sexual arousal, gratification, or abuse.’ (§ 289, subd. (a).)”

In contrast, the People cite to >People v. Dillon (2009) 174 Cal.App.4th
1367, 1380, where the parties agreed that “forcible sexual penetration is a
general intent crime.”





None
of these cases, however, squarely address the issue raised here; thus, the
cases’ declarations as to whether section 289 is a general or specific intent
crime are dicta.

In People v. Hering (1999) 20 Cal.4th 440 (Hering), our Supreme Court considered whether certain statutes
described specific intent crimes. The
court noted the language “with the intent” or “for the purpose of” typically
denotes specific intent crimes and cited penetration with a foreign object as
an example. (Hering, supra, 20 Cal.4th at p. 446.) Hence, we shall assume for the sake of
argument that the trial court erred in instructing that sexual penetration with
a foreign or unknown object was a general intent crime.

Nevertheless, we find the error
harmless beyond a reasonable doubt.
First, a reasonable juror would have understood the instructions to
require that defendant acted with the intent to gratify, arouse, or abuse to be
guilty of the crime. Second, the
evidence is not susceptible to any determination other than that defendant
acted with such intent. Defendant had invited
the victim alone to his house to spend the night. When she tried to go into another room to
sleep, he brought her back to his bed, kissed her, and told her he would “take
[her] virginity.” There could be no
other explanation for his penetration of her than sexual arousal, gratification,
or abuse. The error did not contribute
to defendant’s conviction. (See >People v. Sengpadychith (2001) 26
Cal.4th 316, 324–325 [a trial court’s failure to instruct on an element of a
crime is federal constitutional error requiring reversal unless it can be shown
“beyond a reasonable doubt” that the error did not contribute to the jury’s
verdict].)













DISPOSITION

The judgment is affirmed.







DUARTE , J.







We concur:







NICHOLSON , Acting P.
J.







HULL , J.