People v. Edley

THE PEOPLE, Plaintiff and Respondent,

v.KELLEY EDWARD EDLEY, Defendant and Appellant.

D058712

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date: May 21, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCN270364)

APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.

A jury convicted Kelley Edward Edley of assault with the intent to commit rape (Pen. Code,¹ § 220, subd. (a), count 1); sexual battery (§ 243.4, subd. (a), count 2); misdemeanor sexual battery (§ 243.4, subd. (e)(1), count 4); false imprisonment by force or fear (§§ 236, 237, subd. (a), count 5); misdemeanor attempted sexual battery (§§ 664, 243.4, subd. (e)(1), count 6); three counts of possession of a controlled substance (Health& Saf. Code, § 11350, subd. (a), counts 8-10); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 11); and receiving stolen property (§ 496, subd. (a), count 12). Counts 1 and 2 relate to a victim named Mary T. Counts 4 and 5 relate to a victim named N.T. Count 6 relates to a victim named Andrea E. The jury found Edley not guilty on count 3, which was assault with the intent to commit rape of N.T. (§220, subd. (a).) The court sentenced Edley to prison for five years, four months.

Edley appeals, contending substantial evidence does not support his conviction for assault with intent to commit rape of Mary and the trial court erred in instructing the jury it could consider all of the charged sex offenses to establish he had the intent to commit the other charged sex offenses. We affirm.

FACTS

Prosecution

Mary (Count 1, Assault with Intent to Commit Rape, and Count 2, Sexual Battery)

Mary met Edley and his wife when she began babysitting their then seven-month-old son, C. She lived in the same apartment complex as Edley. Mary ran a daycare business and babysat C. for three and a half years.

In 1997, Mary stopped babysitting C. because C.'s mother moved away with him after separating from Edley. In 1998, Mary moved with her husband and children to Temecula, but remained in touch with Edley, inviting him to her house on multiple occasions. Mary and Edley also would meet for lunch every other month.

In September 2001, Mary drove to Edley's apartment after work to drop off C.'s clothes and see pictures of C. She sat down on a sofa and looked at pictures of C. while talking to Edley. During their conversation, Edley made a comment about Mary's skirt and that he could see her underwear. Mary ignored the comment, and Edley got off the couch to get a drink. When Edley returned to the couch, he touched Mary's shoulder and then quickly swung her legs onto the couch, causing her to lie on her back on the couch. He got on top of her. While holding her hands above her head with one hand, Edley put his other hand under her shirt and grabbed at her breasts. He then put his hand under her skirt and grabbed her thigh and buttocks and touched her vagina through her underwear. During this encounter, Edley repeatedly tried to kiss Mary.

In response, Mary tried to fight Edley by wiggling away from him and screaming. She managed to slide off the couch, run around the couch, and repeatedly hit Edley as he tried to block her from the apartment door while holding her keys and telling her not to tell anyone about what happened. Eventually, Mary escaped the apartment. She drove home, told her husband what Edley had done to her, and the next day she told a security guard at her job. She also reported the incident to the sheriff, but could not remember the exact day she made the report.

With the help of a sheriff's detective, Mary made a controlled telephone call to Edley and demanded to know why he attacked her. Mary specifically asked Edley about his touching her breasts, trying to kiss her, and refusing to allow her to leave. Edley did not deny the accusations, but merely told Mary that he was sorry.N. (Count 4, Misdemeanor Sexual Battery, and

Count 5, False Imprisonment by Force or Fear)

In December 2007, N. began working as a nurse at a rehabilitation facility in Carlsbad. During that time, she knew of Edley, who worked in a different part of the facility, but she had never met him.

On May 11, 2008, at about 3:00 a.m., while N. was doing her nursing rounds, Edley walked into her unit, told her that he was looking for medications, and asked her to assist him. N. followed him to a lighted office at the back of the facility. She entered the office. Edley followed her, closed the door, and turned off the light.

When N. turned around with her back to a counter, Edley walked up to her, put his hands on the counter to each side of her, then grabbed both her wrists, and tried to kiss her on her lips. As she moved her head away from him, he put his hand down her shirt and touched the skin of her breast. N. pushed Edley's hand away, told him to stop, and tried to get away from him. She felt trapped. At some point, Edley let go of N.'s wrists and tried pushing his hand down the front of her pants, but she was able to push his hand away before his hand got into her pants. Although N. told Edley to stop, he responded by saying, "Come on." She did not scream.

N. eventually was able to free herself from Edley's grasp, and she left the office. Later, as she was at the facility's elevator and going on break, Edley spoke to N. and asked her if she was returning. When she said yes, Edley responded, "Maybe we should get a room and have sex." She told him no and walked into the elevator. She did not doanything to report what Edley had done to her that night because she did not know what to do. She did not see Edley the rest of that night.

When N. returned to work the following night, she told two girls with whom she was friends and worked at the facility about what Edley had done. Later that morning, she told some of her family members, who also worked at the facility, what had happened. She later reported and described Edley's actions to the police including the fact that Edley commented to her about his penis. She cried when giving her report to the police.

Andrea (Count 6, Misdemeanor Attempted Sexual Battery)

On January 13, 2009, Andrea, a nursing student, was taking a night class at a vocational school to become a registered nurse. Edley was her teacher. That night, Edley selected her and another student, Sasha, to stay after class to help Edley put away the instructional dummies and bed sheets. When Sasha left the classroom, Andrea had her back to Edley. Edley then told her that she looked good for having three children and walked up behind her left side, inserted his hand down the inside of her pants over her underwear, and moved it toward her vagina. She grabbed his hand, demanded to know what he was doing, and pulled his hand from her pants. He asked her not to tell anyone what had happened because he would get in trouble. She immediately left the classroom and told two female classmates what Edley had done and stayed with those classmates. Andrea was shocked.

Later that evening, Andrea received two text messages from a telephone number she did not recognize. The telephone number belonged to Edley. She had not receivedany calls from Edley prior to that night. She reported Edley's actions to the police the following day.

Defense²

Estela Alarcon worked at the rehabilitation facility and knew both Edley and N. She testified that several times she saw N. walking with her arm around Edley. She also heard N. say Edley was a "good catch" because he was a teacher and making good money.

On cross-examination, Alarcon stated that she thought Edley was handsome and liked him as a person. She also acknowledged telling a defense investigator that N. would bring her "party clothes" to work, change into her "sexy clothes" in the bathroom, and go out partying and drinking with other people. She also said N. flirted with Edley all the time. She testified that she felt N.'s family members, who worked at the facility, had mistreated Alarcon since February 2010. She admitted that she talked to the defense investigator about the time she was being mistreated by N.'s family. She admitted she did not witness Edley attack N.

DISCUSSION

ISUBSTANTIAL EVIDENCE SUPPORTS EDLEY'S CONVICTIONFOR ASSAULT WITH THE INTENT TO COMMIT RAPE

Edley asserts the evidence was insufficient to support his conviction for assault with the intent to commit rape against Mary. We disagree.

We apply a substantial evidence standard of review to assess the sufficiency of the evidence. We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We ask whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the allegations to be true beyond a reasonable doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319.)

" 'The essential element of [assault with intent to commit rape] is the intent to commit the act against the will of the complainant. The offense is complete if at any moment during the assault the accused intends to use whatever force may be required.' " (People v. Davis (1995) 10 Cal.4th 463, 509 (Davis), citing People v. Meichtry (1951) 37 Cal.2d 385, 388-389 (Meichtry).) " '[I]f there is evidence of...