Opinion
C085371
12-05-2018
THE PEOPLE, Plaintiff and Respondent, v. ARNULFO CHAVARIN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62142325)
A jury convicted defendant Arnulfo Chavarin on 36 counts of lewd acts on a child under 14 with substantial sexual conduct (Pen. Code, §§ 288, subd. (a), 1203.066, subd. (a)(8) -- counts 1 to 36), four counts of lewd acts on a child 14 or 15 years old (§ 288, subd. (c)(1) -- counts 37 to 40), four counts of sexual intercourse with a minor aged 16 or 17 (§ 261.5, subd. (c) -- counts 41 to 44), one count of kidnapping to commit rape (§ 209, subd. (b)(1) -- count 45), and one count of rape with an aggravated kidnapping enhancement (§§ 261, subd. (a)(2), 667.61, subd. (d)(2) -- count 46).
Undesignated statutory references are to the Penal Code. --------
Defendant now contends (1) there is insufficient evidence to support his conviction for kidnapping to commit rape (count 45) and the aggravated kidnapping enhancement on the rape conviction (count 46), and (2) the trial court erred in imposing a concurrent life sentence on count 45 rather than staying sentence on that count. We will modify the judgment to stay execution of the 25-year-to-life sentence on count 45, and affirm the judgment as modified.
BACKGROUND
Defendant's daughter testified defendant began sexually abusing her when she was five years old and they lived in the San Diego area. Every time her mother was out of the house or otherwise not around, defendant would touch her genitals and put his fingers inside her vagina. The touching happened multiple times each week. The daughter tried to tell her mother, but the mother did not believe her.
When the daughter was six years old, defendant began putting his mouth on her vagina. He would do so two to three times a week, and he also continued touching her vagina. The daughter feared defendant would hurt her if she did not do what he wanted. Defendant said her mother did not love her and would just get rid of her if she talked about the abuse. Defendant told the daughter it was her fault and said if he could stop, he would.
Defendant first had intercourse with the daughter on her 14th birthday. He told her she should be happy it was him because no one was ever going to love her. He said everyone would hate her if she ever said anything. He also promised not to do anything to her younger sister if she had intercourse with him. Defendant had a vasectomy and told the daughter she now belonged to him forever, and there was nothing she could do.
Once the daughter started middle school, defendant would show up at her school. It made her feel trapped, like she could not go anywhere without him being there. Defendant continued to have intercourse with her when she was in high school. When the daughter began college, defendant continued to show up at her school, making her feel there was nowhere she could go where he would not be.
When the daughter was 20 years old, defendant accused her of sleeping around with someone and kicked her out of the family home. The daughter moved to her uncle's home in the Sacramento area, but when her mother got upset about her move, the daughter returned to San Diego. Within a few days of the daughter's return, defendant resumed touching her. He would have her meet up with him for sex during the workday in his work van. If the daughter tried to come up with an excuse to avoid being alone with him, defendant would threaten to tell the mother, who he said would kick her out and hate her forever. Defendant told the daughter she was his property and there was nothing she could do. Defendant also threatened to leave and break up the family if the daughter failed to perform sexually.
In October 2015, the daughter (then age 22) returned to live with her uncle in the Sacramento area. Defendant had gone through her phone and discovered she was communicating with A., a young man she liked. When defendant found out the daughter had kissed A., defendant was angry. He called her a slut and began hitting her. He choked her so hard she could not breathe, leaving bruises on her neck, back, and arms. Defendant subsequently threw her out of the house. She told her mother she was going to move in with her uncle, but defendant told her she had to stay. Defendant told her, "Wherever you go, I will find you." But her mother took her to the bus station and the daughter made her way to her uncle's.
The daughter obtained a job near her uncle's home at a local fast food restaurant. Defendant would call her at her uncle's and at her workplace. He called her selfish and said he would stop touching her if she returned home. She was afraid he would come to the Sacramento area and show up at her work. Defendant threatened to kill her, himself, and A. if she did not return home. He also threatened to show things to A. that would ruin her life and make A. hate her. Defendant also threatened to come to the Sacramento area and kill her, telling her he had a gun. Although the daughter missed her family and friends, she remained in the Sacramento area because she knew defendant would never stop touching her.
One afternoon, defendant showed up unannounced to her workplace. Defendant asked the daughter's manager if she could leave early. The daughter was scared and ashamed and did not tell her boss anything was wrong. Defendant and the daughter went to eat at a nearby pizza restaurant. Defendant said he loved her and that she belonged to him. He threatened to kill himself if she did not return to San Diego. He promised not to touch her and said he would take her back to her uncle's after they talked. Even though the daughter was scared, she got into the car with him. Defendant began driving and then said he wanted to take her to his motel room to show her something he had gotten her. The daughter began to feel like she was never going to get out of this and that she had no choice.
Defendant drove for 30 minutes. The entire time, he kept trying to hold the daughter's hand, even though she told him she did not want him to touch her or do anything to her. When they arrived at the motel, the daughter felt like he was going to keep her inside until he got what he wanted. The daughter asked to stay in the car, but defendant told her to come inside and promised to return her to her uncle's if she did so. The daughter feared he had a gun, given their recent conversations. She went inside the motel room. She did not try to leave because she did not know where she could go and feared he would catch her anyway.
When the daughter entered the motel room, she saw flowers and a teddy bear, and defendant put on music. Defendant told her to sit down and said he loved her, claiming he could not choose who he was in love with. Defendant promised to return her to her uncle's but asked her to lie down and go to sleep. The daughter was scared defendant would try to touch her again and asked him not to do anything. Defendant threatened to kill himself or A., telling the daughter it would be her fault. The daughter lied down on the bed and started to fall asleep. She woke up to defendant touching her. She tried to push him off and told him to stop. Defendant ignored her screams and kept touching her. Not knowing where to run, the victim stayed. Defendant took off her clothes and put his penis inside of her. When defendant finished, he told her everything would be fine if she would just let him be with her sometimes.
The two stayed in the motel room until defendant left for a few minutes to get food. The daughter remained in the room because she did not have a car and did not know where she was, or how to get back to her uncle's. Defendant returned and they ate, and then defendant threatened to get himself another woman. Defendant eventually took her back to her uncle's, dropping her off a few blocks away. The motel was about 20 minutes away from her uncle's and six miles from her workplace.
Defendant continued to call the daughter at her uncle's and at her work. When her mother said they were coming up for Thanksgiving, the daughter was scared because defendant had threatened to kill her if she did not come home, saying he could do whatever he wanted with her. On Thanksgiving, defendant and the family arrived at her uncle's. Defendant grew angry and demanded the daughter come home. He also said the daughter used to love him and threatened to kill himself or A. At that point the daughter told family members what had been happening. Her brother called the police and they arrested defendant.
At trial, defendant testified he did not engage in any sexual activity with the daughter until she was 18. He said it was consensual and the daughter told him she was happy.
The trial court sentenced defendant to an aggregate determinate state prison term of 83 years 4 months, consisting of the following: eight years on count 1, a consecutive two years (one-third the midterm of six years) each on counts 2 through 36, a consecutive eight months (one-third the midterm of two years) each on counts 37 through 40, and a consecutive eight months (one-third the midterm of two years) each on counts 41 through 44. In addition, the trial court imposed the following indeterminate terms: a consecutive 25 years to life on count 46, and a concurrent 25 years to life on count 45.
DISCUSSION
I
Defendant contends the evidence is insufficient to support the conviction for count 45 (kidnapping to commit rape) or the true finding on the aggravated kidnapping enhancement on count 46 (rape). According to defendant, the evidence shows his daughter consented to go with him from her workplace to the pizza restaurant. He also argues the prosecution failed to prove that the movement of the daughter from her workplace to the motel substantially increased the risk of harm to her. He claims the movement was incidental to the sex act, he only moved her six miles, there was no evidence he was armed, he never restrained her, and the daughter did not summon help despite having opportunities to do so at her workplace, at the pizza restaurant, and at the motel when defendant left to get food.
In considering a claim of insufficient evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We presume the existence of every fact supporting the judgment that the jury reasonably could deduce from the evidence, and a judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Jennings (2010) 50 Cal.4th 616, 638-639.) We do not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
A defendant is guilty of aggravated kidnapping, such as kidnapping to commit rape, only if the crime involved movement of the victim that (1) is more than merely incidental to the underlying crime, and (2) increases the risk of physical or psychological harm to the victim beyond that inherent in the underlying crime. (§ 209, subd. (b)(2); People v. Nguyen (2000) 22 Cal.4th 872, 885-886; People v. Martinez (1999) 20 Cal.4th 225, 232-233.) The two aspects "are not mutually exclusive, but interrelated." (People v. Rayford (1994) 9 Cal.4th 1, 12, disapproved on other grounds by People v. Acosta (2002) 29 Cal.4th 105, 120, fn. 7.)
"The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement." (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.) Although "each case must be considered in the context of the totality of its circumstances," relevant factors include "whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes." (Ibid.) For example, the court in Dominguez concluded there was sufficient evidence to sustain a verdict of aggravated kidnapping to commit rape where the defendant forced the victim in the middle of the night from the side of a public road to a spot in an orchard 25 feet away and 10 to 12 feet below the level of the road. The new location made it unlikely the victim could be seen from the road and decreased the possibility of detection, escape, or rescue, and thus was not merely incidental to the rape. (Id. at pp. 1153-1154.)
The asportation element of section 667.61, subdivision (d)(2) is "almost identical" to the one in section 209: the penalty is increased if the rapist " 'kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense.' " (People v. Ledesma (2017) 14 Cal.App.5th 830, 837.)
We conclude there is sufficient evidence establishing that moving the daughter from her workplace to the motel was not merely incidental to the underlying crime. Defendant did not rape his daughter in the car, he took her to a distant motel where she would be more isolated and vulnerable. That no one responded to her screams during the rape underscores the increased danger of the motel location. She had no idea where she was or how to flee; she did not have a car and feared defendant would catch her if she ran. Defendant also increased the risk of psychological harm to his daughter with his comments at the motel. (People v. Nguyen, supra, 22 Cal.4th at p. 886 [increased risk of harm may be emotional or psychological].) The convictions are supported by sufficient evidence.
II
Defendant also contends the trial court erred in imposing a concurrent life sentence on count 45 rather than staying sentence on that count.
Section 209, subdivision (d) states: "[Section 209, s]ubdivision (b) shall not be construed to supersede or affect Section 667.61. . . . [A] person may not be punished under subdivision (b) and Section 667.61 for the same act that constitutes a violation of both [section 209,] subdivision (b) and Section 667.61."
Here, defendant was punished under both section 209, subdivision (b), and section 667.61 "for the same act that constitutes a violation of both [section 209,] subdivision (b) and Section 667.61." As the People acknowledge, the judgment must be modified to stay execution of the 25-year-to-life sentence on count 45. Accordingly, we need not reach defendant's argument that the sentence on count 45 should be stayed pursuant to section 654.
DISPOSITION
The judgment is modified to impose but stay execution of a 25-year-to-life sentence on count 45. The judgment is affirmed as modified. The trial court shall prepare an amended abstract of judgment reflecting the judgment as modified and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
BUTZ, J.