People v. Keeney

Opinion

DAVIS, Acting P. J.—

A jury convicted the defendant of a number of sexual offenses (which we need not detail) and kidnapping for the purpose of committing rape (Pen. Code, §§ 207, subd. (a); 208, subd. (d); undesignated section references are to this code). The jury also sustained numerous firearm enhancements. Sentenced to state prison, the defendant disputes not the acts of which he was convicted so much as their legal significance. In the published portion of the opinion we hold that section 289, subdivision (a)

[888]

(penetration by foreign object), contemplates the punishment of a defendant who forces a victim to penetrate the victim’s

own

anus or genitals. Finding no error, we shall affirm the judgment in its entirety.

1

Rather than set out a separate statement of facts, we will incorporate the relevant portions of the victim’s testimony in the Discussion (this being the only testimony relating to the nature of the crimes). To provide an overview, the victim had made the defendant’s acquaintance for the first time during a late night of socializing in Alturas with her boyfriend and others.The crimes took place after the defendant intercepted her on the highway as she drove home.

Discussion

I.

Sufficiency of kidnapping evidence

*

II.

Penetration by foreign object

After the first asportation, the defendant spread a blanket on the ground. While undressing, he directed the victim at gunpoint to lie down on the blanket, insert two fingers of one hand in her vagina, and a finger from her other hand in her anus.

On appeal, the defendant argues this testimony does not establish penetration by a foreign object (§ 289, subd. (a)), the crimes of which the jury convicted him in counts two and three. In his view, the statute, which provides, “Every person who causes the penetration, however, slight, of the genital or anal openings of any person or causes another person to so penetrate the defendant’s or another person’s genital or anal openings for the purpose of sexual arousal ... by any foreign object . . . when the act is accomplished against the victim’s will . . . shall be punished by imprisonment in the state prison”