PEOPLE v. DUKE (1985)

OPINION

Appellant was convicted after a jury trial of the following crimes based on separate assaults on three women:  three misdemeanor assaults, felony assault with force likely to produce great bodily injury, three felony attempted sexual batteries and two burglaries.   The burglaries were dependent upon the convictions of one attempted sexual battery and the assault with force likely to produce great bodily injury.   Appellant was sentenced to a four-year prison term for the residential burglary and one-year consecutive term for one attempted sexual battery.   Sentence on the other offenses were concurrent or stayed for a total term of five years.

Because we reverse appellant's convictions of attempted sexual battery and assault by means of force likely to produce great bodily injury, the burglary convictions also fall.   We remand the case to the trial court for resentencing of appellant on the misdemeanor assaults.

The facts need only be briefly stated.   On July 19, 1983, appellant assaulted Susan V. as she sat in her car near the Visalia post office.   He reached into the car and grabbed her thigh near her crotch area but did not touch her skin.   His touch lasted “just a second.”   On November 30, 1983, appellant entered an unoccupied office that was being inspected by Jeri R., a bank employee.   He grabbed Jeri around the neck and touched her breasts through her sweater but she screamed, got loose and ran away.   On December 9, 1983, appellant pushed his way into Erica M.'s home and grabbed her by the wrists, felt her chest, abdomen and groin area without touching her skin or taking off any of her clothes.   After touching Erica's groin area, “he just kind of let go and started running out of the house.”

I

The Evidence is Insufficient to Support the Conviction of Attempted Sexual Battery.

 “Sexual battery” is defined in Penal Code section 243.4 as follows:

“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, gratification, or abuse, is guilty of sexual battery․

“As used in this section, ‘intimate part’ means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.   Sexual battery does not include the crime of rape as defined in Sections 261 and 289.   As used in this section, ‘touches' means physical contact with the skin of another person.”  (Emphasis added.)

Under this statute, sexual battery requires proof of direct physical contact with the skin of the victim.  (In re Keith T. (1984) 156 Cal.App.3d 983, 203 Cal.Rptr. 112.)   This case differs from Keith T. in that here we are only involved with an attempted sexual battery.

 An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.  (People v. Dillon (1983) 34 Cal.3d 441, 452, 194 Cal.Rptr. 390, 668 P.2d 697;  CALJIC No. 6.00 (4th ed. 1979).)   Hence, an attempted sexual battery does not require completion of the sexual battery through actual contact with the victim's intimate parts.   All that must be proven is the specific intent to touch the skin of the victim's intimate parts and a direct act done toward this goal.  “ ‘Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt,’ ” but acts that “ ‘clearly indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design ․’ ” do constitute an attempt.  (People v. Dillon, supra, at p. 452, 194 Cal.Rptr. 390, 668 P.2d 697.)   Finally, if a person has once committed acts which constitute an attempt to commit a crime, he cannot avoid responsibility by not proceeding further with his intent to commit the crime, either by reason of voluntarily abandoning his purpose or because he was prevented or interfered with in completing the crime.  (CALJIC No. 6.01 (4th ed. 1979);  People v. Dillon, supra, at p. 452, 194 Cal.Rptr. 390, 668 P.2d 697.)

Appellant only touched Susan V.'s thigh through her clothing for a second.   He did not fondle her crotch or groin area nor did he attempt to touch her skin by pushing aside or removing her clothing.

Appellant put his hand on Jeri R.'s breast and grabbed her around the neck in a headlock.   He did not fondle her.   He let her go when she screamed.   He did not try to push aside or remove her clothes.

Erica M. testified that appellant touched her breasts and the front of her body.   The contact was just “grabbing” not fondling.   She equivocally said that he tried to untuck her blouse but then backed down and testified that her blouse was just untucked in the struggle.   She was wearing a long blouse tucked in under a sweater.   She testified at the preliminary hearing and at trial that appellant did not try to take her clothes off.

 There is no question but that appellant's assaultive conduct indicated a sexual motive;  in each case he touched an intimate part of the person of his victims.   But, in each case appellant failed to actually touch the victim's skin in these areas.   Moreover, in none of the cases did appellant attempt to remove or push aside the victim's clothing.  (Two victims testified that he did not try to pull off their clothes.   The third victim was not asked.)   Appellant is a six foot, five and one-half inch, two hundred fifteen pound male;  he could have done anything he wanted.   He was not prevented from trying to touch the skin of his victims' intimate parts.

 The Legislature has carefully classified the whole range of assaultive behavior.   It has drawn a bright line by requiring “physical contact with the skin.”  (Pen.Code, § 243.4.)   We conclude that to constitute an attempted sexual battery the statute must be interpreted to require some evidence of a direct act by the defendant showing an intent to touch the skin of the victim's intimate parts.   When a defendant does not attempt to push aside or remove the victim's clothing and does not try to touch the victim's skin through the clothing or try to force her to remove her clothing, there is a reasonable doubt about the defendant's intent to touch the skin of the victim's intimate parts.   The evidence of a direct act showing such an intent is simply not present in any of the assaults here involved.

II

The Evidence is Insufficient to Support the Conviction of Assault with Force Likely to Produce Great Bodily Injury

The conviction of assault with force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)) involves the attack on Jeri R.   This specific charge is based on appellant's use of a headlock to hold his victim while he grabbed her breast.   The headlock made her feel “choked” but did not cut off her breath.   She could still scream, and she did get away.   The victim did not describe an attempt to choke her or strangle her.   The only actual injury was that the victim's small diamond earring was pushed against her ear and caused some bleeding.   She felt that his hold on her was “firm,” but did not say that he tightened his grip.   He must have let her go when she screamed, because he was much stronger than she.

 The term “great bodily injury” as used in the felony assault statute means significant or substantial bodily injury or damage;  it does not refer to trivial or insignificant injury or marginal harm.  (CALJIC No. 9.03 (4th ed. 1984 pocket pt.).)   Mr. Witkin notes the salient aspects of this crime:  (1) no specific intent is required;  (2) no weapon or instrument is required;  (3) the victim usually is seriously injured, but this is not a necessary element of the crime.  (1 Witkin, Cal. Crimes (1963) § 271, p. 255.)   Witkin explains further:

“The crime ․, like other assaults, may be committed without infliction of any physical injury, and even though no blow is actually struck.  [Citation.]   The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it.  [Citation.]

“It would seem, however, that an assault or battery which does not result in any physical injury, and does not come within the scope of any of the other felonious assaults, is hardly likely to support anything more than a simple misdemeanor conviction [citation].   And the cases tend to bear out this assumption, for almost invariably they involve blows and physical injuries.   If a deadly weapon is used to inflict them the charge can be assault with a deadly weapon [citation].   But if hands, fists or feet, etc., are the means employed, the charge will normally be assault with force likely to produce great bodily injury.   And the nature and extent of the injuries inflicted will often be the controlling factor in determining that the force used was of that character.”  (1 Witkin, op. cit. supra, § 272, pp. 255–256, emphasis added.)

In People v. Covino (1980) 100 Cal.App.3d 660, 666, 161 Cal.Rptr. 155, it was held that choking a victim entailed sufficient force to support a conviction of felony assault;  however, the “choking” was done with both hands, with the defendant's thumbs on the victim's larynx.   The victim appeared to be gasping and choking, her tongue protruding about an inch and her eyes bulging and her face red.   The victim testified that appellant had tried to kill her.  (Id., at pp. 664–665, 161 Cal.Rptr. 155.)   In People v. Roberts (1981) 114 Cal.App.3d 960, 965, 170 Cal.Rptr. 872, a felony assault was upheld where the victim was kicked in the head and torso, causing cuts, bruises, a large welt and was rendered unconscious.

 It is evident from the statutory definition of the crime, i.e., assault “with force likely to produce great bodily injury” (emphasis added) and the cases construing the statute that we look to the force actually used by the defendant to determine if it was likely to cause great bodily injury to the victim.   We do not consider the force that the defendant could have used against the victim.   For example, the fact that appellant could have easily broken Jeri R.'s neck or could have choked her to the point of cutting off her breathing by exerting greater pressure on her neck or windpipe will not support the conviction of felony assault.   This would involve gross speculation on the part of the jury as to what the defendant would have done if he had not stopped of his own accord or had been stopped by outside forces.

 We conclude that a reasonable jury could not find beyond a reasonable doubt that the headlock used on Jeri R. constituted force likely to produce great bodily injury.   Appellant only grabbed her momentarily and released her almost immediately.   She was in no danger from the force actually exerted on her body.   Appellant clearly could have exerted force likely to produce great bodily injury;  however, what counts is the force actually exerted, not the threat presented by the defendant's size and strength.

III

The Evidence is Insufficient to Support the Burglary Convictions

 The only basis for finding a felonious intent in appellant's mind when he entered Jeri's office and Erica's residence was the specific intent to commit sexual battery.   Because the evidence only supports a finding that appellant intended to commit acts amounting to simple assault against these women when he entered the buildings, the burglary convictions must be reversed.

The judgment is reversed insofar as the convictions of attempted sexual battery, assault with force likely to produce great bodily injury, and the burglaries.   The judgment is affirmed as to the misdemeanor convictions of simple assaults.   The matter is remanded to the trial court for resentencing of appellant on the latter crimes.

FRANSON, Acting Presiding Justice.

WOOLPERT and IVEY *, JJ., concur.