Opinion
G054753
11-15-2018
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Anthony Da Silva, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CF0873) OPINION Appeal from a judgment of the Superior Court of Orange County, Denise de Bellefeuille, Judge. (Retired judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and remanded with directions for resentencing. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Roberto Roque Cervantes of three counts of oral copulation or sexual penetration of a child 10 years or younger (Pen. Code, § 288.7, subd. (b); counts 1, 6, & 7); one count of sexual intercourse or sodomy with a child 10 years or younger (§ 288.7, subd. (a); count 2); and four counts of lewd acts on a child under 14 (§ 288, subd. (a); counts 3, 4, 5, & 10).
All further statutory references are to this code unless otherwise stated.
The jury could not reach a verdict on two additional counts of sexual intercourse or sodomy with a child 10 years or younger (§ 288.7, subd. (a); counts 8 & 9), which were later dismissed by the prosecution.
Defendant argues there was insufficient evidence to support the count 7 conviction for oral copulation of a child 10 years or younger between February 1, 2008 and June 1, 2009 in Santa Ana. We disagree.
The court sentenced defendant to a total term of 48 years to life, consisting of an aggregate indeterminate term of 40 years to life on counts 1, 2, 6 and 7; plus a determinate term of eight years, consisting of the upper term of eight years on count 10, and concurrent terms of two years (one-third the midterm) on each of counts 3, 4, and 5.
Defendant contends the court inadvertently imposed unauthorized one-third of the midterm sentences rather than the full-term sentences on counts 3, 4, and 5, and he asks that we correct the error by imposing full-term concurrent sentences instead. The Attorney General concedes the sentences on counts 3, 4, and 5 are unauthorized but asks us to remand for the court to exercise its discretion to impose either full-term concurrent or one-third of the midterm consecutive sentences.
We agree the court erred by imposing concurrent one-third midterm sentences on counts 3, 4, and 5, and we reverse and remand the matter to the trial court to correct the sentencing error by exercising its discretion to impose either full-term concurrent or one-third of the midterm consecutive sentences on these counts.
We will affirm the judgment in all other respects.
FACTS AND PROCEDURAL HISTORY
H.S., born in June 1998, and her younger brother are the children of Maria S. (mother) and defendant. The family lived in Riverside County from December 2006 until they moved to Orange County in February 2008, and settled in Santa Ana in March 2008.
When H.S. was eight to nine years old and living in Riverside, defendant began touching her vagina and breasts. Defendant also engaged in a variety of other sexual conduct with H.S., including showering together, exposing himself, having her masturbate him, and sodomizing her. On more than one occasion he made H.S. watch pornographic videos with him. Defendant also put his erect penis inside H.S.'s mouth and ejaculated on her body.
According to H.S. these acts happened "anytime [defendant would] have a chance," "mostly all the time," five out of seven days a week.
After moving to Orange County defendant began having sexual intercourse with H.S. This continued until she was 13 or 14. Defendant continued to touch H.S. after the family moved to Santa Ana, including putting his mouth on and licking H.S.'s vagina. It happened "frequently."
When H.S. was 14 she began running away from home because she did not feel safe. At age 15 she ran away for six days. When she returned she told mother defendant had been sexually abusing H.S. since she was a child. Mother then drove H.S. and defendant to the police station.
After defendant was given his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) warning, police conducted an interview, which was recorded and later played for the jury. He told officer Joe Chavez everything H.S. told police "is exactly what . . . happened." Defendant described a variety of sexual conduct he engaged in with H.S., most of which was similar to what H.S. described. He denied ever penetrating her digitally and was not sure whether he penetrated her vaginally.
Defendant stated that while in Riverside he would kiss H.S. on the lips and "like . . . about three times I also kissed her parts. I mean . . . well, oral sex." He said he kissed and licked H.S.'s vagina and anus. When the family moved from Riverside to Santa Ana defendant and H.S. continued with "what [they] were doing back in Riverside," although he denied putting his penis in H.S.'s mouth in Santa Ana. Defendant told police, "I am a monster, yes, I am a monster."
H.S. also spoke to Chavez. Among other things, she told him the sexual activity in Riverside occurred weekly and continued once the family moved to Orange County. When asked what H.S. told him about defendant's acts in Orange County, Chavez testified, "Besides the sexual abuse continuing, she said that in Santa Ana was the first time that she had sexual intercourse with [defendant]." The prosecutor asked, "And before talking about the sexual intercourse, did she talk to you about whether or not her father ever orally copulated her?" Chavez replied, "Yes." "That [defendant] would orally copulate her on her vagina and on her anus."
DISCUSSION
1. Sufficiency of the Evidence - Count 7
Defendant claims there is insufficient evidence to support his conviction on count 7. When addressing this type of challenge, we look at the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Story (2009) 45 Cal.4th 1282, 1296.)
We accept any logical inferences the jury could have drawn from the circumstantial evidence because the jury, not the reviewing court, must be convinced of the defendant's guilt beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.) "In making our determination, we focus on the whole record, not isolated bits of evidence." (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322.)
We view the evidence in the light most favorable to the prosecution and do not reweigh witness credibility or reassess evidentiary conflicts. (People v. Zamudio, supra, 43 Cal.4th at p. 357.) We may reverse for lack of substantial evidence only if "'"upon no hypothesis whatever is there sufficient substantial evidence to support"'" the conviction. (Ibid.)
In People v. Jones (1990) 51 Cal.3d 294 (Jones), the California Supreme Court set out the factors to be used when testing the sufficiency of the evidence in so-called resident child molester cases in which the defendant is charged with multiple offenses and the victim's testimony regarding particular acts is generic, i.e., not specific as to time and place. (Id. at pp. 299-300.) It held a child's generic testimony is sufficient to support a conviction if it describes: "the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy)"; the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping')"; and "the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period." (Id. at p. 316.)
Jones defined a "'resident child molester'" as someone who "either lives with his victim or has continuous access to him or her." (Jones, supra, 51 Cal.3d at p. 299.)
Defendant contends the third Jones element, general time period testimony, was lacking as to count 7. Count 7 alleged defendant orally copulated H.S. in Santa Ana between February 1, 2008 and June 1, 2009 (i.e., while she was 10 years old or younger). Defendant claims there was no testimony he orally copulated H.S. in Santa Ana during the time period alleged. The record reflects otherwise.
Again, the family moved to Santa Ana in March 2008. H.S. testified defendant sexually abused her, including oral copulating her in Riverside, all the time, any time he had the opportunity, five days a week. She testified these acts continued "frequently" when they moved to Santa Ana. H.S. told Chavez the same thing.
In addition to H.S.'s and Chavez's testimony, the jury heard defendant's inculpatory extrajudicial statements from the audio recording, where he admitted he orally copulated H.S. when they were in Riverside and continued to do so in Santa Ana.
Defendant points out H.S. never testified how old she was when he orally copulated her in Santa Ana. But he admitted he continuously molested H.S. for over a year when they lived in Riverside, including orally copulating her, and he admitted he continued the same activity after the family moved to Santa Ana, when H.S. was only nine years and nine months old. Plus, H.S. testified this same activity continued frequently once they moved to Santa Ana and she told Chavez it happened weekly.
The frequency of the activity in Riverside and H.S.'s testimony it continued once the family moved to Santa Ana was sufficient evidence for the jury to infer the oral copulation occurred in Santa Ana during the one-year and three-month period before she turned 11 on June 2, 2009. (People v. Cornett (2012) 53 Cal.4th 1261, 1275 .) Under Jones, this evidence is sufficient because it describes "the general time period in which these acts occurred." (Jones, supra, 51 Cal.3d at p. 316.)
As Jones explained, "Child molestation cases frequently involve difficult, even paradoxical, proof problems. A young victim . . ., assertedly molested over a substantial period by a parent or other adult residing in his home, may have no practical way of recollecting, reconstructing, distinguishing or identifying by 'specific incidents or dates' all or even any such incidents. . . . Indeed, even a mature victim might understandably be hard pressed to separate particular incidents of repetitive molestations by time, place or circumstance." (Jones, supra, 51 Cal.3d at p. 305.)
Defendant's reliance on People v. Mejia (2007) 155 Cal.App.4th 86 is misplaced. There the defendant was charged with continuous sexual abuse of a child under age 14, which required the prosecution to prove at least three acts of sexual abuse over not less than a three-month period. But the evidence did not show when the abuse began, so there was no inference the jury could possibly draw to support a conviction. (Id. at pp. 94-95.) As discussed above, such is not the case here. 2. Sentencing Error-Counts 3, 4 and 5
Defendant argues, the Attorney General concedes, and we agree, the court erred by imposing one-third middle term sentences on counts 3, 4, and 5, to be served concurrent with the principal term of eight years on count 10. Because "concurrent terms are not part of the principal and subordinate term computation under section 1170.1, subdivision (a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time." (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3, disapproved on another ground in People v. Poisson (2016) 246 Cal.App.4th 121, 125.) So if the court intended to impose concurrent terms on these counts, they were required to be full terms, not one-third middle terms.
During the sentencing hearing the court stated, "I believe it's still true that for the subordinate counts it's one-third the midterm. So as to counts 3, 4 and 5, he's sentenced to two years on each of those counts concurrent to the eight-year term in count 10." When the clerk noted "one-third to mid" was a proper consecutive term but not a concurrent term, the court stated, "I'm exercising my discretion of running them concurrent under [section] 1770[, subdivision] h."
Section 1170, subdivision (h)(1) states: "Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years." Section 1170, subdivision (h)(3) does not apply here. --------
Based on those statements, defendant argues it is clear the court intended to impose concurrent terms on counts 3, 4 and 5. Relying on People v. Quintero, supra, 135 Cal.App.4th 1152, he asks us to correct the unauthorized sentences. In Quintero, the appellate court corrected an unauthorized sentence, instead of remanding for resentencing, "because the record clearly reflect[ed] the trial judge's intention to run [the unauthorized] sentence concurrently." (Id. a p. 1156, fn. 3.)
The Attorney General argues the record does not clearly reflect the trial court's intent, and asks that we remand the matter for resentencing on counts 3, 4 and 5. The Attorney General observes that in deciding whether to impose consecutive or concurrent terms, the court "'is to be guided by the criteria listed in rule 4.425, which incorporates rules 4.421 [(aggravating circumstances)] and 4.423 [(mitigating circumstances)], as well as any other reasonably related criteria as provided in rule 4.408 [(enumerated criteria not exclusive)].' (Cal. Rules of Court, rule 4.426(b).)" (People v. Quintanilla (2009) 170 Cal.App.4th 406, 411.) The Attorney General then notes the court stated the aggravating factors outweighed mitigating factors.
We agree the court's statement about aggravating and mitigating factors muddies the waters and makes the record ambiguous regarding the trial court's intent. We therefore decline to correct the unauthorized sentences ourselves. Instead we will remand for the trial court to do so by exercising its discretion to impose either full-term concurrent or one-third of the midterm consecutive sentences on these counts.
DISPOSITION
The unauthorized sentences imposed on counts 3, 4, and 5 are reversed, and the matter is remanded for resentencing on those counts. The judgment is affirmed in all other respects.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.