In re S.F. CA3

Filed 11/25/20 In re S.F. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

In re S.F., a Person Coming Under the Juvenile Court C090665 Law.

THE PEOPLE, (Super. Ct. No. JV139247)

Plaintiff and Respondent,

v.

S.F.,

Defendant and Appellant.

S.F. (the minor) attacked the victim as she walked through a park. The juvenile court adjudicated the minor a ward of the court (Welf. & Inst. Code, § 602) based upon true findings the minor committed the crimes of assault with the intent to commit rape (count one) and assault by means of force likely to produce great bodily injury (count two). The juvenile court committed the minor to the Department of Corrections and Rehabilitation, Division of Juvenile Justice for a maximum of seven years. On appeal,

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the minor argues the evidence was insufficient to support the finding he had the intent to rape. He also contends the maximum term of confinement found by the juvenile court must be modified to stay any sentence imposed for the assault by means of force pursuant to Penal Code section 654.1 We affirm the intent to rape finding but conclude section 654 does apply to stay the sentence for the assault by means of force. BACKGROUND The victim walked on a bike trail through a park in the morning while listening to music on her phone held in her hand. The park was lightly populated at this time and she passed a few other people walking and biking on the trail. She also passed the minor, who was sitting on top of a picnic table. The victim continued walking to the end of the trail and then went down towards a reservoir. This area is more remote than the trail as it takes a dip down and the area cannot be seen from the street. As the victim was coming back up to the trail from the reservoir, the minor walked past her and “very aggressively and very hard” hit her behind. She turned around and screamed “excuse me?” The minor charged at the victim “like a bull,” hit her back as she turned, and instantly knocked her to her hands and knees onto the concrete. The minor got on her back, “like a backpack,” and the victim tried to fight back. The minor then started gyrating on her, “like a dog humping [her], but it was slow.” The victim thought “this boy was going to rape me.” The minor then began pulling on her tank top, around her right shoulder, but did not pull it away. The victim tried to call her husband from her phone while fighting the minor and screamed for help. The minor then tried to take the phone, put his hand over her mouth “[e]xtremely hard,” and said in a normal tone “you’re going to take this.” She was able to bend the minor’s fingers and continue screaming. A witness ran up to the minor and