Opinion
NOT TO BE PUBLISHED
Los Angeles County Super.
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. NA080716, Jesse I. Rodriguez, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, Acting P. J.
Jose Antonio Arevalo appeals from the judgment entered after a jury convicted him of two counts of committing a forcible lewd act on a child and four counts of committing a lewd act on a child. Arevalo challenges only his convictions on the two counts of committing a forcible lewd act on a child, contending that the evidence is insufficient to support that he acted with force. We conclude the evidence is sufficient and thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An amended information, dated November 30, 2009, charged Arevalo with two counts of committing a forcible lewd act on a child (Pen. Code, § 288, subd. (b)(1) ; counts 1 and 3), and six counts of committing a lewd act on a child (§ 288, subd. (a); counts 2 and 4 through 8). The amended information specially alleged that Arevalo was subject to sentencing under the One Strike Law because he committed the offenses under section 288, subdivisions (a) and (b)(1), against more than one victim (§ 667.61, subds. (c)(4) & (8), (e)(4)).
Statutory references are to the Penal Code.
During trial, the trial court granted the People’s motion to dismiss count 8.
2. The Evidence Presented at Trial
Because Arevalo challenges only his convictions on counts 1 and 3, we focus our factual discussion on those counts. We do not discuss the facts the People used to prove count 6 because the jury acquitted Arevalo on that count.
In 2002 and 2003, C.O., the daughter of Blanca and Francisco O., was eight to nine years old. She lived on Chestnut Avenue in Long Beach in a house with her parents and her younger sister Chelsea O. Arevalo, his wife and daughter lived in an apartment on the back of the Chestnut Avenue property. C.was good friends with Arevalo’s daughter, and the families were close.
On one occasion during 2002 to 2003, C.went to the apartment to look for Arevalo’s daughter. Arevalo let C.into the apartment and told her that his daughter probably was in her bedroom. Arevalo followed C.into his daughter’s bedroom and, once inside, closed and locked the door behind him. He picked C.up, although she did not want him to and was scared, and carried her approximately four feet before putting her down on her back on his daughter’s bed. Arevalo tried to pull down C.’s underwear and pull her legs apart, saying “his penis wants to meet [her] vagina.” For about two minutes, C.resisted Arevalo and fought to keep her legs together. Arevalo gave up and told C.not to tell anyone. C.ran outside of the apartment. These facts formed the basis for the charges in count 3.
On another occasion, also during 2002 to 2003, C.walked through the open door of the apartment, thinking that Arevalo’s daughter was home. While C.checked for Arevalo’s daughter, Arevalo appeared behind her and threw her gently on the couch. Arevalo tried to open C.’s legs, while she resisted. He ultimately was able to open her legs, pull down her underwear and rub the outside of her vagina. Arevalo then let C.leave. These facts formed the basis for the charges in count 4.
On a third occasion during 2002 to 2003, C.went into the apartment looking for Arevalo’s daughter. Once she was inside the apartment, Arevalo shut the front door and would not let her leave. Arevalo sat C.down on the couch, undressed himself from the waist down, took out his penis and forced C.’s hands to rub it. C.saw white fluid come out of Arevalo’s penis. These facts formed the basis for the charges in count 5.
Also during 2002 to 2003, C.was in the living room of her house watching a movie with Chelsea and Arevalo’s daughter. C.went into the kitchen to get sodas, and Arevalo appeared in the kitchen. C.turned around, but Arevalo “got to [her], ” approaching her from behind, turning her around, kissing her cheek and rubbing her vagina over her clothes. These facts formed the basis for the charges in count 7.
After these incidents, Arevalo’s wife one day saw in her mirror a reflection of Arevalo hugging C. She believed something was not quite right and became worried. Later that day, C.told Arevalo’s wife that Arevalo had been “touching her body.” C.asked Arevalo’s wife not to tell her parents because her mother had been sexually abused, and C.thought her mother would be hurt if she found out about Arevalo’s touching C. Although she did not tell C.’s parents, Arevalo’s wife confronted Arevalo, who said, “I don’t know what happened at that time.” He asked his wife to forgive him and said “he didn’t know what was going on, but that it was just that one time.” Arevalo’s wife moved out of the apartment, as did Arevalo separately. Arevalo’s wife planned to call the police to report what C.had told her, but she did not because she feared that her daughter would be taken away from her. Arevalo and his wife ultimately divorced.
Although C.’s family did not have further contact with Arevalo for years, they reconnected in 2008. At that time, C.and her family lived on Belen Street in Long Beach. In June or July 2008, Arevalo’s daughter moved in with C.and her family. Several months later, in September 2008, Arevalo moved in as well, staying in a room on the second floor of the house. Soon after moving in, on September 12, 2008, Arevalo saw C.coming down the stairs, tried to “block the area, ” asked C.how she had been and said that he “missed touching [her] vagina.” C.said “no” to Arevalo and “snuck under his arms quickly before he got to [her].”
Not long after, in the afternoon on September 27, 2008, Arevalo asked Chelsea, who then was eight years old, to help him carry a mattress and blinds upstairs. Chelsea complied, and afterwards looked out the window in the hallway at the top of the stairs. Arevalo grabbed her from behind around her abdomen and carried her into an empty bedroom, while she told him four times to stop. Once in the bedroom, Arevalo put her down, still with his arm around her abdomen, lifted up her nightgown, went into her underwear and grabbed the outside of her vagina. After what seemed like forever, Chelsea took Arevalo’s hand out of her underwear. These facts formed the basis for the charges in count 1.
After Chelsea removed Arevalo’s hand from her underwear, Arevalo told her “‘one more time, ’” continued to hold her around the abdomen, put his hand back in her underwear and again grabbed the outside of her vagina. These facts formed the basis for the charges in count 2.
Chelsea finally got out from Arevalo’s hold, ran to her bedroom, locked the door and hid under her bed. While running, she could tell that Arevalo was following her, and, once in her room under the bed, she heard Arevalo knocking at her door. When the knocking eventually stopped, Chelsea went into C.’s room. Soon thereafter, Chelsea asked if she could help her mother, who was cleaning the bathroom. Chelsea went into the bathroom with her mother, and Arevalo came by to say he was going out with C.and his daughter. He asked Chelsea if she wanted to go, but Chelsea said no and would not look at him. Chelsea’s mother found her behavior odd.
As Arevalo was leaving, he was in the car with C., while his daughter returned to the house to get something. Arevalo put his hand over the zipper on C.’s pants and said “he misses it.” C.told him, “no. That’s enough.” Arevalo said, “okay. I will stop from there.” And then “he just stayed quiet.”
Chelsea told her mother what Arevalo had done. When he returned to the house with C.and his daughter, C.and Chelsea’s mother took the three girls from the house, and they returned about 9:00 p.m. that evening after picking up C.and Chelsea’s father, who had been at a conference that day. C.and Chelsea’s mother told their father what had happened to Chelsea.
The following day, after changing the locks on the house, C.and Chelsea’s father confronted Arevalo about the incidents with Chelsea. Arevalo said “it was true what had happened with Chelsea” and “he had allowed himself to be used by the devil.”
About one week later, C.learned that Arevalo had touched Chelsea, and she told her church pastor, and later her parents, that Arevalo also had touched her. After talking with C., C.and Chelsea’s parents reported the conduct to the police.
3. The Jury’s Verdict and Sentencing
The jury found Arevalo guilty of committing a forcible lewd act on a child as charged in counts 1 and 3 and of committing a lewd act on a child as charged in counts 2, 4, 5 and 7. It found Arevalo not guilty of committing a lewd act on a child as charged in count 6. It found true the special allegation that Arevalo committed the offenses against more than one victim. Under section 667.61, the trial court sentenced Arevalo to state prison for 75 years to life, consisting of a term of 15 years to life for count 1, plus consecutive terms of 15 years to life for counts 3, 4, 5 and 7. The court imposed a concurrent sentence of 15 years to life for count 2.
DISCUSSION
Section 288, subdivision (a), provides that “any person who willfully and lewdly commits any lewd or lascivious act... 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....” Section 288, subdivision (b)(1), provides, “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....” The Supreme Court recently confirmed that the “appropriate definition of the force required for an aggravated lewd conduct conviction” under section 288, subdivision (b)(1), is force that is “‘substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’” (People v. Soto (2011) 51 Cal.4th 229, 242.)
Although Arevalo does not contest that he committed a lewd act on a child against Chelsea as charged in count 1 and against C.as charged in count 3, so as to satisfy section 288, subdivision (a), he contends the evidence is insufficient to support that he used force in committing the offenses to render them crimes of forcible lewd conduct under section 288, subdivision (b)(1). According to Arevalo, the acts used to argue force were “part and parcel of the charged offenses” and “a necessary part of committing the sexual crimes themselves.” We disagree.
In reviewing a challenge to the sufficiency of the evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.) Substantial evidence is that which 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. Johnson (1980) 26 Cal.3d 557, 578.)
According to the evidence regarding the offense against Chelsea in count 1, Arevalo approached her from behind, grabbed her around the abdomen and carried her into an empty bedroom, while she was telling him to stop. He then lifted her nightgown, pulled down her underwear and grabbed her vagina, while still holding her around the abdomen. This evidence is sufficient to demonstrate that Arevalo used force that is “‘substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’” (People v. Soto, supra, 51 Cal.4th at p. 242.) Although Arevalo approached Chelsea in the upstairs hallway, and contrary to his suggestion could have committed a lewd act there, he grabbed her and carried her into an empty bedroom against her will and held her to commit the lewd act of touching her vagina—acts of force that are substantially different from or greater than that necessary for him to accomplish the lewd act of touching her vagina. (People v. Cicero (1984) 157 Cal.App.3d 465, 474 [“defendant’s acts of picking the girls up and carrying them along were applications of physical force substantially different from and substantially greater than that necessary to accomplish the lewd act of feeling their crotches”], disapproved on other grounds in People v. Soto, supra, 51 Cal.4th at pp. 241-248; People v. Cochran (2002) 103 Cal.App.4th 8, 13 [“if the defendant grabs or holds a victim who is trying to pull away, that is use of physical force above and beyond that needed to accomplish the act”].)
A similar analysis applies with respect to the offense against C.in count 3. The evidence as to that count shows that Arevalo lured and then followed C.into his daughter’s bedroom and closed and locked the door behind him. He picked up C., when she did not want him to and was scared, and carried her approximately four feet before putting her down on her back on his daughter’s bed. He then for two minutes tried to pull down C.’s underwear and pull her legs apart, while she resisted and fought to keep her legs together. Arevalo’s conduct in preventing C.from leaving the room, picking her up when she did not want him to and was scared, carrying her to the place where he chose to violate her and trying to pull her legs apart for two minutes while she fought to keep them together demonstrates force that is “‘substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’” (People v. Soto, supra, 51 Cal.4th at p. 242; People v. Cicero, supra, 157 Cal.App.3d at p. 474; People v. Cochran, supra, 103 Cal.App.4th at p. 13; see also People v. Stark (1989) 213 Cal.App.3d 107, 112 [“adult male lying on top of a nine-year-old boy, who was rendered unable to move away because of the weight of the adult on top of him, ” and “ignor[ing] the boy’s request to get off of him and to stop fondling him” constituted “physical force substantially different from and substantially greater than necessary to fondle” the boy].)
Arevalo’s reliance on People v. Hecker (1990) 219 Cal.App.3d 1238 and People v. Espinoza (2002) 95 Cal.App.4th 1287 does not assist him. In Hecker, the appellate court reduced convictions under section 288, subdivision (b), to convictions under section 288, subdivision (a), when the victim testified that, “with the exception of [the defendant’s] pushing her head down during the act of oral copulation..., he never used physical force.” (Hecker, at pp. 1250-1251.) In Espinoza, the appellate court concluded the evidence of force or duress was not sufficient to sustain a conviction under section 288, subdivision (b), when the “[d]efendant did not grab, restrain or corner [the victim]....” (Espinoza, at p. 1320.) Here, in contrast, with respect to count 1 against Chelsea and count 3 against C., both girls testified to physical force used by Arevalo substantially beyond the violations against them, including that he picked them up against their will, moved them and kept them in secluded locations so that he could violate them.
DISPOSITION
The judgment is affirmed.
We concur: CHANEY, J., JOHNSON, J.