Opinion
G053704
11-09-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID ANDREO, Defendant and Appellant.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13NF4220) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed as modified. Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The People alleged the following counts against defendant David Andreo:
1. Lewd acts on minor, a child under age 14, between August 19, 1996 and August 18, 1997 (Penal Code, § 288, subd. (a));
All statutory references are to the Penal Code.
2. Continuous sexual abuse of minor, a child under age 14, between August 19, 1997 and August 18, 2001 (§ 288.5, subd. (a));
3. Lewd acts on minor, a child under age 14, between August 19, 2001 and August 18, 2003 (§ 288, subd. (a));
4. Lewd acts on minor, a child under age 14, between August 19, 2004 and October 19, 2004 (§ 288, subd. (a));
5. Rape of minor, a child under 14 years old who was 10 years or more younger than the defendant, between August 19, 2004 and July 31, 2005 (§ 269, subd. (a)(1));
6. Forcible rape of minor, between August 1, 2005 and August 30, 2005 (§ 261, subd. (a)(2));
7. Lewd acts on minor, a child age 14 or 15, who was at least 10 years younger than defendant (§ 288, subd. (c)(1)).
On counts 3 and 4, the People alleged the conduct involved substantial sexual conduct on a child under age 14, under section 1203.066, subdivision (a)(8) (prohibiting probation or suspension of sentence). On count 6, the People alleged defendant inflicted great bodily injury pursuant to section 667.61, subdivisions (b) and (e)(3).
In 2005, the year of the count 6 crime, the great bodily injury enhancement was found in section 667.61, subdivision (e)(3). The great bodily injury enhancement is now found in section 667.61, subdivision (d)(6). (See Stats. 1998, ch. 936, § 9.) --------
A jury convicted defendant on all counts, and found the enhancements to be true. The court sentenced defendant to 46 years to life in state prison, which breaks down as follows:
Count 5 - 15 years to life;
Count 6 - 15 years to life, consecutive to count 5;
Count 2 - 16 years (upper term), consecutive to count 5;
Count 1 - 6 years (midterm), concurrent to count 5;
Count 3 - 6 years (midterm), concurrent to count 5;
Count 7 - 2 years (midterm), concurrent to count 5;
Count 4 - 6 years (midterm), stayed pursuant to section 654.
The court also imposed a $200 restitution fine (former § 1202.4, subd. (b) [amended by Stats. 2016, ch. 37, § 3]), a $200 parole/postrelease community supervision fine (§ 1202.45), and other miscellaneous fines.
On appeal, defendant raises two issues. First, defendant argues the conviction as to count 1 was not supported by substantial evidence. Second, defendant notes that the abstract of judgment incorrectly listed the restitution and parole fines as $300 each, rather than $200 (the People agree this was error). We will amend the abstract of judgment to reflect the correct fines and otherwise affirm the judgment.
FACTS
Defendant is minor's stepfather. When minor was 5 years old, defendant lived with her, her mother, and her siblings. Minor, who was 24 years old at the time of trial, testified as follows:
"[Prosecutor]: When you were five years old, did the defendant, David Andreo, start doing sexually inappropriate things to you?
"[Minor]: He would touch me.
"[Prosecutor]: Okay. And did this touching start when you were five or did it start earlier?
"[Minor]: It was about five." (Italics added.)
"[Prosecutor]: All right. So when he would touch you, this is again when you were five years old, was there anybody else in the apartment besides you and the defendant?
"[Minor]: My brothers." (Italics added.)
"[Prosecutor]: And it would always happen — and again we're talking about when you were about five in the bedroom?
"[Minor]: Yes." (Italics added.)
"[Prosecutor]: And so can you describe for us when you were about five years old how the defendant would approach you when he was going to touch you?
"[Minor]: I could have been waking up and he was already touching me, or it could have been my mom was going to work and I was falling asleep and he would already be touching me. It could have been any time. I didn't have — I was probably asleep and I'd wake up to him touching me already." (Italics added.)
"[Prosecutor]: But I guess my question is — and, again, we're focusing on when you were about five years old. Would he ever touch you at times when you weren't, say, waking up or falling asleep? Would there be times when you're just awake and he would come in and start touching you?
"[Minor]: He would." (Italics added.)
"[Prosecutor]: And when you say your chest, would he ever touch your breasts?
"[Minor]: I was five.
"[Prosecutor]: Do you remember if he touched that area of your chest?
"[Minor]: It was everywhere." (Italics added.)
"[Prosecutor]: Did he ever touch you in your genital area?
"[Minor]: He did.
"[Prosecutor]: Did he do that over the clothes or skin to skin?
"[Minor]: Both."
"[Prosecutor]: And how often when you're five years old would the defendant touch you in this way?
"[Minor]: I would say about three times a week." (Italics added.)
Minor would go on to testify to many years of unceasing abuse, which escalated to digital penetration at age 10, and full on rape at age 13. She testified to physical abuse inflicted because she was talking to a boy, and that defendant eventually impregnated her at age 14. The sexual abuse stopped for a time, but at age 16 it resumed, not stopping until minor left for the military at age 18. The details of defendant's appalling abuse of minor are unnecessary to the resolution of this appeal.
DISCUSSION
Defendant's sole argument on appeal is that substantial evidence does not support count 1 because, as pleaded, count 1 lists a time frame of between August 19, 1996 and August 18, 1997 (the time period in which she was five years old), yet minor testified the abuse happened when she was "about" 5 years old, which may include times outside that time frame.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) "All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence." (People v. Cardenas (2015) 239 Cal.App.4th 220, 226-227.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (Bolin, at p. 331.)
Defendant's argument fails for at least two reasons.
First, the People are not required to plead and prove the abuse occurred within a specific time frame unless the time is a material element of the offense (§ 955), which is not the case for section 288, subdivision (a), so long as the minor is under 14 years old. (See CALCRIM No. 1110.) "About 5 years old" clearly meets this element. Moreover, minor's testimony reflects far more violations of section 288, subdivision (a), than were actually charged.
Second, even if the prosecutor did have to present evidence of acts within the pleaded time frame, he did so. As recounted at length above, while minor and the prosecutor both referred to a time when she was "about 5 years old," at other times they were more specific in saying she was 5 years old. In particular, minor testified that when she was 5 years old, the abuse was occurring three times per week. This was sufficient evidence for the jury to find the abuse occurred when she was 5 years old.
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect that the fines pursuant to former section 1202.4, subdivision (b), and section 1202.45 are $200 each, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.