The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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,*fn1 § 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 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.
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 ...