Filed 12/12/13 P. v. Clark CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057786

v.                                                                       (Super.Ct.No. RIF1202006)

QUINTERRIOUS RUSSELL CLARK,                                              OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Thomas D. Glasser,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and Barry

Carlton, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Quinterrious Clark was convicted after a jury trial on one count of

annoying or molesting Jane Doe, a child under the age of 18 years old (Pen. Code, §

647.6, subd. (a)(1)),1 and on one count of receiving stolen property (§ 496, subd. (a)).

The jury also found true an allegation that defendant suffered a prior conviction for

annoying or molesting a child under the age of 18 years old, such that the current

conviction was punishable by imprisonment in state prison. (§ 647.6, subd. (c)(1).) The

trial court sentenced defendant to a total of 10 years and 4 months in state prison.

       On appeal, defendant argues his conviction for annoying and molesting a child

under the age of 18 years old must be reversed because the prosecution introduced no

evidence that he was motivated by an unnatural or abnormal sexual interest in the victim

when he touched her wrist. Because a reasonable jury could conclude that defendant’s

conduct was motivated by an unnatural or abnormal sexual interest in the underage

victim, we affirm.

                                  FACTUAL BACKGROUND

       Jane Doe and her friend K. went to the Galleria at Tyler to pick up applications for

summer jobs. After getting two or three applications, Jane Doe called her father to come

pick up her and K. from the mall. The girls sat on a planter outside the mall as they

waited for their ride. While seated there, Jane Doe saw defendant ride by on his bicycle

about 12 to 15 feet away in the street. As he rode by, defendant said “hi” to the girls.


       1   All additional undesignated statutory references shall be to the Penal Code.



                                              2
Jane Doe had never before seen or met defendant, and she did not engage him in

conversation or say hello back when defendant first rode by.

       A short while later, defendant walked back without his bicycle to where the girls

were seated and started talking to them. Defendant walked right up to Jane Doe and

stood closely in front of her. Defendant asked the girls if they had any telephones, asked

if they had a charger he could use to charge his cellular phone, and showed them three

cellular phones he had with him. Jane Doe thought that defendant was “hitting” on her

because she “didn’t know him, so he shouldn’t have asked me if I had a phone.”

Defendant told Jane Doe that she “was pretty and that [her] hair was attractive,” which

Jane Doe thought was “weird” and “creepy” because he was a stranger and “much older”

than her.

       Defendant then grabbed Jane Doe’s right wrist, looked at her gold bracelet, asked

if it was handmade, and told her he sold gold. Defendant also asked Jane Doe what kind

of music she listens to. Jane Doe was scared and in shock as defendant held her wrist,

and she thought defendant was “hitting on” her. Defendant held Jane Doe’s wrist for

about a minute and rubbed it, which caused Jane Doe to feel disgusted and scared. Jane

Doe did not tell defendant to leave her alone because she was scared and thought

something might happen to her.

       Defendant then sat down next to Jane Doe on the planter. Jane Doe was scared

that defendant might “do something that he shouldn’t be doing,” so she pretended to

make a phone call to her cousin. Jane Doe and K. got up from the planter and walked



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back inside the mall. Jane Doe looked back to make sure defendant did not follow them.

Defendant also walked into the mall, but he turned to walk in the opposite direction of the

girls. Jane Doe did not notice if defendant was looking for them or watching them.

       When Jane Doe’s father arrived at the mall he noticed that his daughter looked

scared and upset. Jane Doe told him what happened and pointed out defendant to her

father. Jane Doe’s father then confronted defendant, who told him he bought and sold

gold and meant nothing by touching her hand. Jane Doe’s father told defendant not to

leave and told Jane Doe to call the police. Jane Doe told the 911 operator that defendant

grabbed her hand. When asked, Jane Doe told the operator that defendant did not touch

her “sexually” because she thought the operator “meant like touched me in my private

parts, so I said, no, he didn’t.”

                                       DISCUSSION

       “‘When considering a challenge to the sufficiency of the evidence to support a

conviction, 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.’ [Citation.] We determine ‘whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.’

[Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the




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existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]”

(People v. Edwards (2013) 57 Cal.4th 658, 715.)

       “‘“‘Although it is the duty of the jury to acquit a defendant if it finds that

circumstantial evidence is susceptible of two interpretations, one of which suggests guilt

and the other innocence [citations], it is the jury, not the appellate court[,] which must be

convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances

reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the

circumstances might also reasonably be reconciled with a contrary finding does not

warrant a reversal of the judgment.’” [Citations.]’” [Citation.]’ [Citation.]” (People v.

Harris (2013) 57 Cal.4th 804, 849-850.)

       “‘The primary purpose of [section 647.6] is the “protection of children from

interference by sexual offenders, and the apprehension, segregation and punishment of

the latter.” [Citations.]’ [Citations.]” (In re Gladys R. (1970) 1 Cal.3d 855, 868.)

Section 647.6 “does not require a touching [citation] but does require (1) conduct a

‘“normal person would unhesitatingly be irritated by”’ [citations], and (2) conduct

‘“motivated by an unnatural or abnormal sexual interest”’ in the victim [citations].”

(People v. Lopez (1998) 19 Cal.4th 282, 289.) “[T]here can be no normal sexual interest

in any child and it is the sexual interest in the child that is the focus of the statute’s

intent.” (People v. Shaw (2009) 177 Cal.App.4th 92, 103.)

       Section 647.6 “contemplates a crime more serious than an indiscreet gesture,

public nuisance, or sexual indiscretion.” (People v. Tate (1985) 164 Cal.App.3d 133,



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138.) “For the most part, . . . section 647.6 has been applied to incidents of explicit

sexual conduct, where a defendant: fondled a minor’s genitals and had her touch his

genitals [citation]; touched a minor’s genitals through her clothing [citation]; fondled and

had sexual intercourse with a minor [citations]; solicited a sex act from a minor [citation];

grasped a minor by her buttocks and rubbed himself against her body [citation]; exhibited

his genitals to a minor [citation].” (People v. Kongs (1994) 30 Cal.App.4th 1741, 1750

(Kongs).) In those cases, the outward conduct itself was strong evidence of an unnatural

or abnormal sexual interest in the child. But section 647.6 is not limited to explicit lewd

acts (People v. Thompson (1988) 206 Cal.App.3d 459, 464-466; see People v. Memro

(1995) 11 Cal.4th 786, 871), and convictions under that statute have been upheld even

when the defendant’s conduct was outwardly “ambiguous” but still evidenced the

requisite motive (Kongs, supra, 30 Cal.App.4th at p. 1750).

       Defendant does not dispute that he grabbed and rubbed the underage Jane Doe’s

wrist and concedes that a normal person would unhesitatingly be disturbed, irritated,

offended, or injured by his conduct. He only disputes the sufficiency of the evidence that

his conduct was motivated by an unnatural or abnormal sexual interest in Jane Doe.

According to defendant, “not only was there insufficient evidence of an unnatural or

abnormal motivation, the evidence adduced at trial clearly indicated there was no such

motivation.” We disagree.

       Jane Doe testified that defendant, a complete stranger whom she had never met,

rode past her and her friend K. and said “hi.” Shortly thereafter he walked back to where



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the girls were seated and started talking to them and asking whether they had cellular

telephones with them. This left Jane Doe with the impression that he was “hitting” on

her, communicating her perception of defendant’s sexual intent. Had that been the extent

of defendant’s acts, we might agree with him because section 647.6 does not criminalize

friendly conduct with children. (See People v. Carskaddon (1957) 49 Cal.2d 423, 426.)

But defendant was more than just friendly with Jane Doe. Defendant told Jane Doe she

was “pretty” and that she had “attractive” hair. Jane Doe felt this attention from an older

man whom she had never met was “weird” and “creepy.” After approaching Jane Doe

and grabbing her wrist, defendant held on to her wrist long enough to imply a sexual

interest. Defendant also rubbed Jane Doe’s wrist, which left her shocked, scared, and

disgusted, and confirmed her view that defendant was “hitting” on her. Finally,

defendant sat down next to Jane Doe uninvited and continued to talk to her. From this

evidence, a reasonable jury could conclude that defendant was motivated by an unnatural

or abnormal sexual interest in Jane Doe.

       Defendant contends the evidence shows, at most, that he “was trying to hustle

these two girls, not sexually arouse himself or them.” True, Jane Doe testified that

defendant said he sold gold and that he asked her questions about her bracelet, which is

consistent with his theory that he was trying to obtain the bracelet from her. But there is

evidence from which the jury could reasonably infer that defendant was interested in

more than hustling Jane Doe of her bracelet. Defendant told Jane Doe she was “pretty”

and then grabbed her wrist without first asking if he could look at her bracelet. He held



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Jane Doe’s wrist for a minute, and while he did so he rubbed it. Although defendant

made no sexual comments to Jane Doe and did not touch her in an explicitly sexual way,

the way he did touch her, when considered in light of the totality of the circumstances,

reasonably supported the jury’s inference that he was motivated by sexual interest in her.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                               RAMIREZ
                                                                                       P. J.


We concur:

HOLLENHORST
                          J.

CODRINGTON
                          J.




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