Opinion
C082056
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. BRANDON ANTHONY AMADOR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F05958)
A jury convicted defendant Brandon Anthony Amador of numerous sex offenses against a six-year-old victim as well as possession of child pornography. Sentenced to state prison for a determinate term of 23 years plus an indeterminate term of 40 years to life, defendant appeals. He contends (1) in connection with sexual penetration (count 3), the trial court failed to instruct on the lesser included offense of attempted sexual penetration, (2) in connection with forcible lewd conduct (counts 2, 4, 6, and 8), insufficient evidence supports the element of force, violence, duress, menace, and threat of great bodily injury, and (3) in connection with possession of child pornography (count 9), the trial court erred in failing to stay punishment pursuant to Penal Code section 654. We reject all of defendant's contentions and affirm the judgment.
Undesignated statutory references are to the Penal Code. --------
FACTUAL BACKGROUND
On October 19, 2014, the six-year-old victim went to the then 21-year-old defendant's house looking for her Frisbee. Defendant took her first to the backyard, then to his bedroom, and finally to his parents' bedroom where he closed the door. The victim tried to leave and told defendant she wanted to leave but defendant blocked the door. He had her take all of her clothes off to play a "private massage" game, and he took all of his clothes off as well. When he left to get something, she tried to get out but he would not let her. Using his finger, he put cream on the victim's "privates," on the inside of her privates, and on his privates. While she was on her back, he got on top of her in a push-up position and touched his privates to her privates, rocking his hips back and forth. The victim pleaded repeatedly, "I want to go," but defendant said repeatedly, "No." When she tried to move, he told her, "No" and that " '[p]rivate massage takes a long time.' " He only stopped when his dog started barking. Then he came back and had her orally copulate him. She said "no," did so anyway, but stopped when she did not want to do it anymore. Defendant then said she could either continue orally copulating him or he could rub her privates again. She opted to leave and tried to open the door. Defendant said she could not leave until she finished the game. She chose privates to privates again and started crying because she did not want defendant touching her. He would not let her go until he was done. Finally, he let her put her clothes on and leave. She went home where she was found crying.
A sexual assault exam was conducted immediately. Defendant's semen was found in her vestibule and vulva. She had redness all over the outside of her labia majora and a little bit of bleeding on her labia minora. The findings were consistent with a penis in and around her genital area and a finger inserted into her. A few weeks later, the victim was interviewed by a forensic specialist.
On November 26, 2014, a search of defendant's home pursuant to a warrant revealed the following in defendant's bedroom: next to a bottle of Vaseline, a picture of the victim and her sister which had been taken by family members and last seen in the garage of the victim's family; the victim's and her sister's underwear, dresses, swimsuits (one of which belonged to the victim and had a hole in the crotch), shorts, T-shirt bras of the victim's sister, bras belonging to the victim's grandmother, and bathrobe, all of which were last seen in the garage of the victim's family; and a computer with photos of seven- and eight-year-old girls and movie files of female children under 18 years of age being sexually assaulted, with some of the photos in a file with the victim's name but none of which were of the victim. The movie files had been downloaded and accessed onto defendant's computer on September 2, 2013, May 29, 2014, and June 7, 2014. Some of the photos had been downloaded onto defendant's computer on August 16, 2014.
While in jail, defendant had several recorded conversations with his parents. Defendant told his parents to pay off the judge, have the victim's house firebombed, and to kill the victim and her family.
Additional facts relevant to the contentions raised on appeal will be recounted in our discussion of the same.
DISCUSSION
1.0 No Instructional Error
Relying on People v. Ngo (2014) 225 Cal.App.4th 126 (Ngo), defendant first contends that the trial court failed to instruct sua sponte on attempted sexual penetration as a lesser included offense of sexual penetration. The People respond that such an instruction was not required because there was no substantial evidence that the offense was less than that charged. We agree with the People.
"[A] trial court must . . . instruct the jury on lesser included offenses 'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.' " (People v. Barton (1995) 12 Cal.4th 186, 194-195.) A duty to instruct does not arise "unless there is some evidence, not merely minimal or insubstantial evidence but evidence from which a jury could reasonably conclude, that the offense was less than that charged." (People v. Jones (1992) 2 Cal.App.4th 867, 870.)
Section 288.7, subdivision (b) provides, in relevant part, as follows: "Any person 18 years of age or older who engages in . . . sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life."
"Sexual penetration" is defined in section 289, subdivision (k)(1) as follows: " 'Sexual penetration' is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object."
Contact with the female "genitalia inside the exterior of the labia majora constitutes 'sexual penetration' within the meaning of section 289." (People v. Quintana (2001) 89 Cal.App.4th 1362, 1371.)
Defendant misplaces his reliance upon Ngo, supra, 225 Cal.App.4th 126. In Ngo, the victim stated consistently to police that the defendant touched her but was equivocal as to whether he penetrated her. (Ngo, supra, 225 Cal.App.4th at pp. 134-139.) The victim's mother stated to police and testified at trial that she walked into the living room, interrupting the defendant's touching of the victim. Although she testified that she saw the defendant's hand in the victim's pants, she did not see whether the defendant penetrated the victim. The mother stated to police that she did not believe the defendant had penetrated the victim. The defendant denied consistently that he penetrated her when he touched her. (Id. at pp. 139-140.) Ngo concluded the evidence was "consistent with the possibility that defendant attempted to penetrate [the victim], but that Mother interrupted the attempt when she walked into the room" and supported an instruction on the lesser included offense of attempted sexual penetration, which the trial court erroneously failed to give sua sponte. (Id. at p. 157.)
Here, the victim testified that defendant touched her "between-the-legs part" with his hands. When later asked if defendant touched the inside or outside of the between-the-legs part, she said that defendant did not touch her there with his hands or any other part of his body.
When interviewed by a deputy who responded to the 911 call, the victim said that defendant put cream on both of their privates, got on top of her, and put his privates on her privates. When asked if defendant put his privates or fingers inside of her, she said "no."
When interviewed by the forensic specialist, the victim said that defendant put cream on the inside of her private with his finger.
When Angela Vickers, M.D., examined the victim, the doctor saw redness on the outside labia major and bleeding from the splitting of the labia adhesion which was consistent with a penis being in and around the victim's genital area and/or a finger being inserted into her. Dr. Vickers noted that six-year-old children typically do not articulate "penetration" and, when asked "how deep inside" or "did it go inside your vagina," a child of that age does not have the sexual knowledge or experience to know and will say that they were touched with male genitals or a finger.
Here, the jury was asked whether defendant digitally penetrated the victim as she said in the forensic interview or whether defendant did not as the victim said at other times. Unlike the facts here, in Ngo there was no evidence that the defendant took preparatory steps toward digitally penetrating his victim before he was interrupted by her mother. Whereas here, the victim's testimony described defendant's application of cream to the inside of her privates with his finger. Thus, the trial court was not required to instruct on the lesser offense of attempted sexual penetration under the facts of this case.
2.0 Sufficiency of the Evidence
Defendant next contends that insufficient evidence supports the force, violence, duress, menace, or fear element of his convictions for forcible lewd conduct in counts 2, 4, 6, and 8, each a violation of section 288, subdivision (b)(1). We disagree.
" '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. [Citations.]' [Citations.] 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. [Citation.] Reversal on this ground is unwarranted unless ' "upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' [Citation.] This standard applies whether direct or circumstantial evidence is involved." (People v. Cardenas (2015) 239 Cal.App.4th 220, 226-227.)
Section 288 provides in relevant part as follows:
"(a) Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
"(b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years."
" ' "[D]uress as used in the context of section 288 [means] a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." ' [Citation.] [¶] 'A defendant uses "force" if the prohibited act is facilitated by the defendant's use of physical violence, compulsion or constraint against the victim other than, or in addition to, the physical contact which is inherent in the prohibited act.' [Citations.] '[A]n act is forcible if force facilitated the act rather than being merely incidental to the act.' [Citation.] '[A]cts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves' are sufficient to support a finding that the lewd act was committed by means of force." (People v. Garcia (2016) 247 Cal.App.4th 1013, 1023-1024, italics omitted.)
Defendant took the victim into his parents' bedroom and closed the door. When the victim tried to leave, defendant blocked the door. When defendant left to get something, the victim tried to get out but defendant would not let her leave. When defendant touched his privates to her privates, she stated repeatedly that she wanted to leave and defendant refused repeatedly. When the victim tried to move, defendant told her not to. When the victim stopped orally copulating defendant, he offered her the choice of continuing or to have him rub his privates on hers again. She opted to leave and tried to open the door. Defendant refused to let her leave and said she had to finish the "game." She started crying when he rubbed his privates on her privates again. These facts were sufficient to show that defendant committed the lewd acts by use of force, duress, menace and/or fear.
3.0 Section 654
Finally, defendant contends his sentence for possession of child pornography should have been stayed (§ 654) because his possession was incidental to his lewd acts upon the victim. We disagree.
Section 654, subdivision (a) provides in relevant part, as follows: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"Section 654 bars multiple punishment for separate offenses arising out of a single occurrence when all of the offenses were incident to one objective. [Citation.] Whether section 654 applies is a question of fact for the trial court, and its finding will be upheld if there is substantial evidence to support the finding." (People v. Buchanan (2016) 248 Cal.App.4th 603, 611.)
Defendant committed his lewd acts on the victim on October 19, 2014. Child pornography on his computer was discovered during a search of his bedroom on November 26, 2014. His computer showed that he had downloaded and accessed child pornography in September 2013 and May, June, and August of 2014, a long time before his lewd acts on the victim. Defendant's possession of child pornography was not part of an indivisible course of conduct—his possession was independent of and not merely incidental to the lewd offenses.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: HULL, Acting P. J. MURRAY, J.