(Super. Ct. No. 09F05780)
The opinion of the court was delivered by: Hull , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Domingo Garcia Vargas appeals his conviction after a jury found him guilty of forcible rape and false imprisonment of one victim, and forcible sexual penetration and assault with intent to commit forcible sexual penetration of another.
Defendant contends the trial court committed prejudicial error when it gave the jury a special instruction defining "sexual penetration," and when it failed to instruct on sexual battery as a lesser included offense to forcible sexual penetration. He further contends the trial court erroneously permitted multiple convictions for forcible sexual penetration and the lesser included offense of assault to commit forcible sexual penetration, requiring that the conviction for the lesser offense be vacated. In the alternative, he claims the trial court should have stayed the conviction for the lesser offense pursuant to Penal Code section 654, and failure to do so violated double jeopardy. (Unspecified section references that follow are to the Penal Code.) Finally, he claims there are various clerical errors in the abstract of judgment which require correction.
We agree with defendant's contention regarding multiple convictions and will reverse the conviction for assault to commit forcible sexual penetration. We will also direct the trial court to modify the abstract of judgment to correct specified errors, and will otherwise affirm the judgment.
The charges against defendant arose out of the following assaults against two different victims, K.B. and S.G.:
On January 24, 2009, K.B. and several of her friends went to a bar called Badlands to celebrate a friend's birthday. K.B. had a couple of drinks at Badlands, then she and a friend left and went to a nearby liquor store, where they purchased a small bottle of liquor. They went to the car and K.B. drank about five shots. After about a half hour, they left to meet some friends parked at a nearby parking lot. They talked there for a bit, then K.B. returned to Badlands. She had nothing else to drink.
At approximately 1:00 a.m., K.B. walked back to the parking lot to say goodbye to her friends. However, as she neared the railroad tracks, she noticed their car was already gone. Suddenly, defendant grabbed her from behind, shoved her into a nearby parking lot and pushed her to the ground between two parked cars. K.B. landed on her back. Defendant pinned her down, straddling her with both of his hands on her chest. K.B. later testified, "I was definitely intoxicated, but I wouldn't say I was drunk. . . . [¶] . . . I was aware of my surroundings." She screamed and struggled to get away, and asked defendant "if this was seriously happening." In response, defendant punched her three times in the face. The third strike caused K.B.'s head to hit the ground "pretty hard." She did not have a clear memory of what happened after that.
When K.B. came to, defendant was gone and she was still lying on her back on the ground with her pants down around her left ankle. One of her shoes was off and her underpants were missing. K.B. got dressed and, although she could not later recollect how, she met up with her friend Jacob and walked with him to his house where they met up with another friend, Wendy. K.B. told Wendy she was raped, and Wendy took her to the hospital.
K.B. had a large, painful bump and a scab on the back of her head, a black eye, an orbital fracture under her left eye, her nose and lips were swollen, and she had a cut on her lower lip, and bruising and swelling above her upper lip.
K.B. reported to the police that defendant had vaginal intercourse with her for about five minutes. A sexual assault examination revealed an abrasion on K.B.'s left labia minora and posterior forchette. Genetic testing on swabs taken from her vagina contained sperm matching defendant's DNA profile.
On the evening of June 6, 2009, S.G. went with her boyfriend to meet some friends at the Stoney Inn, a restaurant and bar. At approximately 1:00 a.m., S.G. walked out to her car to have a cigarette, drink some water, and text her sister. S.G. later testified that she "had a buzz going," and stated, "I wasn't intoxicated to the point where I didn't know what was going on. I was definitely functional."
S.G. fell asleep sitting in the driver's seat of her car. When she woke up, defendant was sitting in the front passenger seat with his hand over her mouth. He leaned over and put his body weight on her, with his forearm pressing against her throat and his hand over her nose and mouth, making it difficult for her to breathe. S.G. struggled to get away. Defendant lifted her dress, put his hand between her legs, moved her underwear to the side, and twice touched her "vaginal region."
S.G. eventually freed her arms and was able to honk the car horn. Defendant released his grip long enough for her to open the door and throw herself out of the car, screaming for help. Defendant climbed out of the car and fled across the street on his bike.
Jonathan Markus, a security guard for the Stoney Inn, was standing outside smoking a cigarette when S.G. walked to her car. According to Markus, S.G. appeared "slightly intoxicated" but she was not stumbling or falling over. Markus got into his patrol vehicle and made his rounds. As he returned to the Stoney Inn, he saw S.G. quickly exit her car, "acting hysterically" and screaming. Markus later told police he thought he heard S.G. scream, "He took my purse. He took my purse." Markus saw defendant exit the passenger side of S.G.'s car, grab a bicycle, and ride away. Markus gave chase in his car, cornering defendant in an alley. Defendant dropped his bike and backpack and continued to flee on foot. Markus continued his pursuit until he lost sight of defendant.
A hat and a pair of scissors were discovered in S.G.'s car. Genetic testing on cuttings taken from the hat contained DNA matching defendant's profile.
S.G. told police defendant put his fingers in her vagina but "did not penetrate" her. Detective Andrew Newby testified that, after reading the patrol officer's statement, it was unclear to him to what extent, if any, penetration occurred. Newby interviewed S.G. and attempted to clarify with her, "talking about the difference between penetration and nonpenetration and the vaginal folds." They discussed the female anatomy. In particular, Newby "discussed with [S.G.] vaginal folds, inner and outer, the labial folds," and asked S.G. where defendant put his hands or fingers. S.G. ...