P. v. Torosian CA2/8

Filed 7/22/26 P. v. Torosian CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B345139

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 24SFCF00828)
v.

RIMOND TOROSIAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Hayden A. Zacky, Judge. Affirmed as modified.
Christina S. Vanarelli, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.

_________________________
Defendant Rimond Torosian appeals following his
convictions for one count of assault with intent to commit sexual
penetration by force or fear (Pen. Code, §§ 220, subd. (a)(1), 289)
and two counts of sexual battery by restraint (Pen. Code, § 243.4,
subd. (a)). (Further unspecified statutory references are to the
Penal Code.) The trial court sentenced Torosian to an aggregate
term of nine years. Torosian asserts three errors: first, the trial
court did not properly instruct jurors on the mental state
required for the assault crime; second, insufficient evidence
supports one of the sexual battery convictions; and third,
regarding sentencing, insufficient evidence supports the court’s
finding in support of an aggravated term that the victim was
particularly vulnerable. There was no prejudicial error, so we
affirm. But given the challenged sexual battery conviction should
have been one for violating subdivision (d), not subdivision (a), of
section 243.4, we accordingly modify the judgment.
I.
We summarize the facts underlying the charged offenses,
taking the facts in a light favorable to the judgment and offering
only so much detail as needed to address the issues on appeal.
At about 6:00 p.m. on a January evening, the victim went
to several businesses looking for a job so she could care for her
three-month-old daughter. When she reached a dry cleaners, she
entered and saw Torosian. No one else was in the store. The
victim spoke almost no English and used her phone’s translation
app to converse with Torosian. She asked if he was hiring. At
some point she mentioned she was alone in the country with her
infant daughter after her father had been deported. Torosian
said work was slow, but he could pay $50 per 100 pieces of
clothing. He told her to go “into the back” to see if she could

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operate the laundry equipment. He later said, at trial, he was
“not really” willing to hire her.
While in the back area, Torosian took off the victim’s
sweater, saying the equipment was heavy and this would make
things easier. Torosian started grabbing the victim’s buttocks.
The victim told Torosian she had to leave and wanted to retrieve
her outer garments. She looked for the exit, but it was not visible
from where she was in the back of the store. As she retraced her
steps to the store’s front, Torosian blocked her way. He held her
arms and turned her around so she faced the back of the store.
Torosian touched her shoulder, and the victim responded she was
not looking for that, but rather a job. Torosian then unzipped the
victim’s blouse, removed her bra, and licked her breast, which
was painful because she was still breastfeeding her daughter.
The victim continued to try to get away, but Torosian restrained
her with a firm right hand on her shoulder. She tried to call 911
from her phone, which she had been using to communicate with
Torosian, but Torosian “had his eyes” on the phone. Keeping his
right hand on her shoulder, Torosian unzipped, unbuttoned, and
lowered the victim’s pants. He then tried to insert his hand
beneath her underwear, but a body-shaping garment blocked
him. He touched her thigh and vagina over her undergarments
and put upward pressure on her vagina. She again told him this
was not what she wanted. She said stop. He continued to apply
pressure to her shoulder to keep her in place. Torosian next
unzipped his own pants and placed the victim’s hand on his erect
penis, “making a motion of masturbation.” The victim again
expressed this was not what she wanted.
A customer arrived and the incident ended.

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II.
There was no instructional error.
To guide jurors on the charge of assault with intent to
commit sexual penetration by force or fear, count 1 of the
information, the trial court gave, orally and in writing, modified
versions of CALCRIM jury instructions Nos. 890 and 1045.
The trial court’s written version of CALCRIM No. 890 was
entitled, in bold print, “Assault With Intent to Commit Specified
Crimes.” The body of the instruction, as written and as read to
the jury, began by stating Torosian was “charged in Count 1 with
intent to commit sexual penetration by force or fear,” omitting
the words “assault with.” The instruction continued to explain
that to prove the crime, “the People must prove that: [¶] 1. The
defendant did an act that by its nature would directly and
probably result in the application of force to a person; [¶] 2. The
defendant did that act willfully; [¶] 3. When the defendant acted,
he was aware of facts that would lead a reasonable person to
realize that his act by its nature would directly and probably
result in the application of force to someone; [¶] 4. When the
defendant acted, he had the present ability to apply force to a
person; [¶] [and] [¶] 5. When the defendant acted, he intended to
commit sexual penetration by force.” The instruction concluded
by telling jurors that “[t]o decide whether the defendant intended
to commit sexual penetration by force or fear please refer to
Instruction 1045 which defines that crime.”
The trial court’s written version of CALCRIM No. 1045 was
entitled, in bold print, “Sexual Penetration by Force or Fear.”
The body of the instruction, as written and as read to the jury,
began by stating Torosian was “charged in Count 1 with Assault
with Intent to Commit Sexual Penetration by Force or Fear.”

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The instruction continued to explain that to prove the crime, “the
People must prove that: [¶] 1. The defendant committed an act
of sexual penetration with another person; [¶] 2. The penetration
was accomplished by using a foreign object; [¶] 3. The other
person did not consent to the act; and [¶] 4. The defendant
accomplished the act: [¶] by force, violence, duress, menace, or
fear of immediate and unlawful bodily injury to another person.”
In explaining some of these elements, the instruction told jurors
Torosian could not be guilty “if he actually and reasonably
believed that the other person consented to the act. The People
have the burden of proving beyond a reasonable doubt that the
defendant did not actually and reasonably believe that the other
person consented. If the People have not met this burden, you
must find the defendant not guilty.”
During their deliberations, jurors requested clarification of
CALCRIM Nos. 890 and 1045. They asked, “to find guilty are all
elements of 890 and 1045 required to be met for Count 1, are all
[unreadable] elements required to be found guilty? There is
confusion in the group on what is required. Is there a
greater/lesser charge in Count 1 similar to Counts 2 and 3.
Count 1 does not require actual penetration? Does 890 define
intent as related to elements in 1045?”
After discussion with counsel, the court offered this
clarification:

“Count 1 charges the defendant with assault
with intent to commit sexual penetration by force or
fear.
“Read CALCRIM instructions 890 and 1045 in
their entirety as they are intertwined, as explained
below.

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“CALCRIM 890 states the requirements
required to prove the ‘assault’ portion of the charged
crime. CALCRIM 1045 states what crime the
defendant ‘intended’ to commit, as alleged by the
prosecution. The law does not require that the
defendant complete the act of sexual penetration, but
to find him guilty of Count 1, the law requires that
the jury to [sic] find that the defendant ‘specifically
intended’ to commit that act when he ‘assaulted’ the
victim.
“To simplify, the prosecution must prove each
and every element in CALCRIM 890. Because the
prosecution has alleged the ‘target’ crime as sexual
penetration by force or fear, the Court has defined
that crime in CALCRIM 1045.
“Simple assault is a lesser included offense to
sexual penetration by force or fear as charged in
Count 1.
“Please advise the Court if you need any
further clarification about these instructions or any
others.”

Torosian, as he did in the trial court, asserts the trial
court’s response fell short. Torosian notes the response told
jurors they need not find he “complete[d] the act of sexual
penetration,” but must find he “ ‘specifically intended’ to commit
that act when he ‘assaulted’ the victim.” Torosian asserts the
court’s response failed to convey to jurors that he needed to
intend the crime of sexual penetration and all of its elements, not
simply the act of penetration. In particular, Torosian asserts the
court’s response failed to further “state that the intent required”

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included “accomplish[ing]” the sexual penetration by force or fear
and without the victim’s consent.
We review de novo whether the trial court’s instructions on
the law were correct. (People v. Ramos (2008) 163 Cal.App.4th
1082, 1088.) When instructions are claimed to be erroneous,
conflicting, or ambiguous, we ask whether jurors were reasonably
likely to have construed them in a manner that violates the
defendant’s rights. (People v. Richardson (2008) 43 Cal.4th 959,
1028; People v. Rogers (2006) 39 Cal.4th 826, 873; People v.
Franco (2009) 180 Cal.App.4th 713, 720.) “We look to the
instructions as a whole and the entire record of trial, including
the arguments of counsel. [Citations.] We assume that the
jurors are ‘ “ ‘intelligent persons and capable of
understanding and correlating all jury instructions . . . given.’ ” ’ ”
(Franco, at p. 720.) “ ‘Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.’ ” (Ramos,
at p. 1088.)
It was not reasonably likely jurors would have construed
the trial court’s instructions and its response as eliminating the
People’s burden to prove required elements of the assault charge,
as Torosian suggests. First, we note that CALCRIM Nos. 890,
defining assault with an additional intent, and 1045, defining
sexual penetration by force or fear, have been deemed adequate
to instruct jurors on the crime of assault with intent to commit
sexual penetration by force or fear. (People v. Dillon (2009) 174
Cal.App.4th 1367, 1379–1380; see also People v. May (1989) 213
Cal.App.3d 118, 129 [a court must define the crime underlying an
assault with an intent to commit that crime].) In Dillon, as here,
the version of CALCRIM No. 890 the trial court gave “specified

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that a required element of the assault offense was that the
defendant intended to commit the crime of penetration of the
genital opening of another by a foreign object. To determine
whether that element was satisfied, it instructed the jury to refer
to ‘the instruction which defines that crime’ (italics added), i.e.,
the crime of penetration of the genital opening of another by
force, as defined in CALCRIM No. 1045.” (Dillon, at p. 1379.) A
reasonable jury would understand, then, that CALCRIM No.
1045 had to be consulted to determine whether defendant’s
mental state was sufficiently culpable. (Id. at pp. 1379–1380.)
Torosian has not taken issue with Dillon. The trial court’s mid-
deliberation response, moreover, corrected any potential
confusion arising from the conflicting prefatory statements in the
versions of CALCRIM Nos. 890 and 1045 jurors had received
regarding the crime in count 1 being an assault.
Next, the trial court’s response squarely, and correctly,
answered the jury’s precise inquiry as to whether count 1
“require[s] actual penetration.” The court replied, no, the
defendant instead needed to specifically intend that act while
assaulting the victim. The response, moreover, clarified that
jurors should read both CALCRIM Nos. 890 and 1045 “in their
entirety as they are intertwined” and advised that the former
instruction “states the requirements required to prove the
‘assault’ ” while the latter “states what crime the defendant
‘intended’ to commit.” Thus, while the trial court addressed
whether an act of penetration had to be completed or intended —
the lone element jurors had singled out — it reemphasized that
jurors should evaluate the entirety of both pertinent instructions
and the “crime,” not the act, Torosian intended to commit. It did

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not, thereby, suggest the jury could convict Torosian even if he
acted thinking he would have the victim’s consent.
Further, defense counsel, when arguing against the charge
in closing, told jurors they needed to find that when Torosian
acted, “it was his intention, it was in his mind that, I am going to
do this, against her will, and I am going to force it in.” Counsel
argued that the conversation between Torosian and the victim
did “not prove that he harbored the intent to do this thing to this
woman against her will” or with “force or fear,” but rather
showed a consensual flirtation. The prosecution rebutted this
factually, arguing Torosian “knew what he had done” and did not
tell detectives the encounter was consensual. But the prosecution
did not argue against defense counsel’s legal premise that such
intention had to be shown.
Because it was not reasonably likely that jurors would have
viewed the trial court’s instructions as eliminating elements
required to prove the assault charge, we find no instructional
error.
We pause, however, to briefly note the trial court’s
insertion of the word “specifically” before “intended” to describe,
in its response to jurors, the mental state a defendant must
possess regarding the crime of sexual penetration by force or fear
to violate section 220. Section 220 uses the term “intent.” (§ 220,
subd. (a)(1) [criminalizing “assaults . . . with intent to commit” a
target sex crime]; see CALCRIM No. 890 [“When the defendant
acted, he intended to commit . . . .”].) The embellishment
“specifically” was not error and would not have confused jurors
under these circumstances, but neither did it helpfully clarify for
them the mental state required. (People v. Canales (2024)
106 Cal.App.5th 1230, 1252–1256, 1261–1262.) Greater clarity in

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our criminal justice system would ensue, instead, from a shift to
more precise mental state descriptors. (Id. at p. 1255
[referencing the culpable mental states of the Model Penal Code:
“purpose, knowledge, recklessness, and negligence”].)
III.
Substantial evidence supports the challenged sexual
battery conviction, count 3 — on which the trial court stayed
punishment — but the judgment should reflect a conviction
under subdivision (d) of section 243.4, not subdivision (a).
Section 243.4 defines several acts that constitute sexual
battery. One involves a person touching another. (§ 243.4, subd.
(a) [“Any person who touches an intimate part of another person
while that person is unlawfully restrained by the accused or an
accomplice, and if the touching is against the will of the person
touched and is for the purpose of sexual arousal, sexual
gratification, or sexual abuse, is guilty of sexual battery”].)
Another involves causing another to touch oneself. (§ 243.4,
subd. (d) [“Any person who, for the purpose of sexual arousal,
sexual gratification, or sexual abuse, causes another, against that
person’s will while that person is unlawfully restrained . . . , to
masturbate or touch an intimate part of either of those persons or
a third person, is guilty of sexual battery”].)
At trial, the People told jurors that count 2, pleaded in the
original information, arose from Torosian touching the victim’s
breast. And the People told jurors that count 3, added to the
information by oral amendment, arose from Torosian causing the
victim to touch his own genitals. Though the People should have
tied count 3 to subdivision (d) of the sexual battery statute, they
instead tied it to subdivision (a).

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“Adequate notice to the defendant of the offense with which
he is charged is not determined solely by the charging statute. A
reference to an incorrect penal statute can be overcome by factual
allegations adequate to inform the defendant of the crime
charged.” (People v. Haskin (1992) 4 Cal.App.4th 1434, 1439.)
Torosian was amply acquainted with the basis for count 3 and
argues no prejudice from being charged under the wrong
subdivision of section 243.4. (See People v. Thomas (1987)
43 Cal.3d 818, 826–827, 832; see also People v. Maury (2003)
30 Cal.4th 342, 427–428.) The victim testified to the conduct
underlying count 3 at the preliminary hearing and then again at
trial. There is no dispute the evidence supports a conviction
under subdivision (d).
Under these circumstances, we see no prejudicial error.
But the judgment should be modified to reflect the correct
offense.
IV.
Substantial evidence supports the trial court’s finding, for
sentencing purposes, that the victim was particularly vulnerable,
meaning vulnerable “in a special or unusual degree, to an extent
greater than in other cases.” (People v. DeHoyos (2013)
57 Cal.4th 79, 154.)
After the jury trial on Torosian’s guilt, the trial court held a
bench trial on aggravating factors pertinent to sentencing.
(Torosian had waived his right to a jury on these matters.) The
court found, beyond a reasonable doubt based on the evidence
from trial, that the victim was particularly vulnerable, pursuant
to rule 4.421(a)(3) of the California Rules of Court. Having found
this aggravating factor, the court then sentenced Torosian to the
upper term for the sexual assault offense in count 1.

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Torosian argues the trial evidence does not support the
conclusion that the victim was particularly vulnerable. “We
review an aggravating factor finding for substantial evidence.”
(People v. Mendez-Torres (2025) 113 Cal.App.5th 1007, 1020; see
People v. Wilson (2008) 44 Cal.4th 758, 806.) “ ‘[T]he court must
review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence — that is, evidence which is reasonable, credible, and of
solid value — such that a reasonable trier of fact could find the
[aggravating factor] beyond a reasonable doubt.’ [Citation.] We
‘ “ ‘presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.’ ” ’ ” (People
v. Mendez-Torres, at p. 1015.)
Here, the victim came to Torosian unable to speak English
and in need of work. (See People v. Alvarado (2001)
87 Cal.App.4th 178, 195 [inability to speak English can be a
factor suggesting particular vulnerability].) Torosian learned,
further, that the victim was in the country without family other
than her infant. Before committing the charged assault, Torosian
took the victim’s sweater off and lured her to the back of the dry
cleaners, where it was more private and where the victim could
not see an exit. (See People v. Carpenter (1997) 15 Cal.4th 312,
413 [noting vulnerability from victim being alone].) He did so
under false pretenses because he had no intention of hiring the
victim. (See People v. Clark (1990) 50 Cal.3d 583, 638 [noting
vulnerability from victim being told a false story to get the victim
into a private space]; cf. People v. Stevens (2007) 41 Cal.4th 182,
203 [noting a vulnerable position arises from “exploiting a false
sense of security”].) Torosian then blocked the victim from
exiting and faced her so she looked into the store. Torosian

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rubbed the victim’s vagina through her clothing amidst other
unwanted touching and while he and the victim were alone at
night. He only stopped when a customer, plainly unaware of the
assault, happened to enter. Torosian did not initiate the assault
in public, and his gaze on the victim’s phone prevented her from
calling police for aid. (Cf. People v. Price (1984) 151 Cal.App.3d
803, 812–814.) This evidence permitted the finding of particular
vulnerability.
DISPOSITION
We modify the judgment to reflect that Torosian’s
conviction on count 3 is for a violation of section 243.4,
subdivision (d). We affirm the judgment as modified. The trial
court is directed to amend the abstract of judgment to reflect this
modification and to forward a certified copy of the amended
abstract to the Department of Corrections and Rehabilitation.

SCHERB, J.

We concur:

STRATTON, P. J.

WILEY, J.

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