Opinion
G057829
06-23-2020
THE PEOPLE, Plaintiff and Respondent, v. SILAS OSEAS ESCALANTE-SANDOVAL, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CF1392) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
Silas Oseas Escalante-Sandoval was convicted of molesting two girls (Doe No. 1 and Doe No. 2). The trial court sentenced Sandoval to a total term of 12 years in prison. On appeal, Sandoval asserts Penal Code section 654 (all further statutory references are to the Penal Code) bars separate punishments for two counts regarding his sexual molestation of Doe No. 1. We have reviewed the record and disagree. We affirm the judgment.
FACTS
Because this appeal only concerns Sandoval's misconduct towards Doe No. 1, and raises a limited sentencing issue regarding two counts of molestation, we limit our factual summary accordingly. Suffice it to say, both victims lived in the same apartment as Sandoval. His girlfriend was Doe No. 1's aunt and Doe No. 2's mother.
In 1997, when Doe No. 1 was 15 years old, and Doe No. 2 was 14 years old, Doe No. 1 told a school counselor about Sandoval's sexual abuse. The counselor contacted Child Protective Services, and social worker Loretta Lopez interviewed both girls. Doe No. 1 and Doe No. 2 also spoke with two police officers.
Doe No. 1 told Lopez the inappropriate touching began when she was 10 years old. The misconduct progressed from Sandoval touching her breasts and buttocks to touching her vagina, acts of digital penetration, and intercourse. Doe No. 1 recalled she was 13 years old when the sexual intercourse started. She stated the last inappropriate contact took place the week prior. Doe No. 1 also recalled an incident when she pushed Sandoval away when he tried to touch her and she watched him enter Doe No. 2's bedroom. Doe No. 1 followed and saw Sandoval touching Doe No. 2's breasts. She interrupted him, Doe No. 2 rolled over, and Sandoval threatened, "You better not say anything."
Doe No. 1 also spoke with police officers. She again reported Sandoval began sexually assaulting her when she was 10 years old and the abuse continued until she was 14 years old. Doe No. 1 participated in a covert telephone conversation with Sandoval. At the time, he was in the apartment at a birthday celebration for Doe No. 1's aunt. He was angry with her for not being home. When Doe No. 1 stated she did not want to go back home because "of what you did to me," he replied, "don't be exaggerating" and "I'm not doing anything you want to return back come I won't mess with you or anyone ok?" Doe No. 1 responded, "I don't like it when you touch me." Sandoval replied, "Forget about it already I won't do that again . . . are you going to come?"
Sandoval's statements required a Spanish interpreter. We have quoted his statements exactly as translated without making grammatical or punctuation corrections. --------
Lopez later interviewed Doe No. 2 at the police station. She denied Doe No. 1 walked in while Sandoval was trying to touch her. Next, the police interviewed Doe No. 2, and she admitted Sandoval touched her inappropriately a few years ago. She added Sandoval touched her breasts both over and under her clothing, he also squeezed her breasts. She could not remember how many times this happened over the years, but she recalled one occasion that she told Sandoval to stop and go away. She confirmed Doe No. 1 once entered her room while Sandoval had his hands on her breasts on top of her clothing. She heard Doe No. 1 start screaming at Sandoval to leave Doe No. 2 alone.
Over a week later, a forensic interviewer, Adriana San Roman-Ball and a trainee met with Doe No. 2. She did not want to speak with them and claimed she did not remember. Doe No. 2 stated she had been removed from her home because her cousin made an allegation of abuse. Doe No. 2 discussed some of the abuse that took place and said she knew it was wrong. However, Doe No. 2 said she did not care about Doe No. 1 or if she was sexually molested.
Two officers conducted Sandoval's interview in Spanish. At first, Sandoval denied any sexual misconduct with Doe No. 1. After the officers told Sandoval that Doe No. 1's breast was being tested for saliva and compared to his DNA, Sandoval stated, "But it was just that one time." When questioned further about what happened, Sandoval stated, "Yeah well like you said then. Just like she was looking for me to have sex but sex with her I haven't had." Sandoval clarified, "The truth is look; this is how it happened that day. Early in the night we were watching TV and she was hugging me where she was sitting and from there [Doe No. 1's aunt] went to the kitchen and she started grabbing my penis." He also told the officers, "So then that day, yes I climbed up the bed, I didn't climb the bed just in the stairs, I stood there and grabbed her breast, but only from there I haven't abused her because no." Sandoval admitted touching and licking Doe No. 1's breast.
When asked about digital penetration, Sandoval responded "Yes, but no" and "Not varies [sic] times." Sandoval claimed, "Well, that's happened, she was the one, she was the one that got me hot there in the bed then." He added, "But I just touched her with the finger and like you said but no."
Sandoval recounted a time he was in bed with Doe No. 1 watching television. He stated, "She was wearing short shorts and that's where I began to touch her because she was on top of me." Sandoval added, "But I am telling you just touch her with my finger like this." He explained that this was all that he did because "there was no room to have more free time with her." When asked if he touched Doe No. 1's breast this time, Sandoval replied, "No, I just grabbed her private part." When asked why, he explained, "Well I don't know why, maybe what I wanted to do was just touch her down there." Sandoval admitted he touched Doe No. 1 under her clothing but claimed he did not force himself on her.
Sandoval described one night he had sexual intercourse with Doe No. 1. He said that night his girlfriend was at work and Doe No. 1 was wearing a skirt. He stated Doe No. 1 wanted to stay with him in bed. Sandoval recalled, "And no, she got on top of me and yes, yes, she inserted it in but it was her on her own that she inserted because."
He added Doe No. 1 touched him first and then got on top of him. Because Sandoval's appeal focuses on his description of this event, we have quoted relevant sections from his interview with the police. When the officer asked, "Did she start to touch you first your penis to warm you up?" Sandoval misunderstood and said Doe No. 1, "a young girl" was thinking she and Sandoval "wanting it right away, right away I reacted and." The officer clarified, "But I want to know she; she started to touch you first?" Sandoval replied "yes" and then "yes, she started to touch me and." The officer interrupted and asked "and you got hot then?" Sandoval said "yes" and then indicated Doe No. 1 got on top of him. When asked what happened next, Sandoval told the officers "Pass, but no I didn't finish inside of her for the same reason that I said she will end up pregnant." Sandoval stated he did not use a condom, "But it was about 3 minutes only or less than [three] minutes and I took her off from on top of me and told her no go to her bed you will end up pregnant."
Sandoval knew Doe No. 1 was 13 years old when he had sexual intercourse with her. He admitted having three to five sexual encounters with her, but intercourse only one time. The other incidents included touching her in the front and she put her hand in his pants and squeezed. He denied any inappropriate touching with Doe No. 2, explaining he touched her breasts accidently when they were playing.
The defense case included testimony from a forensic specialist, who examined bedding and clothing for DNA. The expert found foreign DNA on Doe No. 1's bra and breast, but the amount was too small to measure. Her underwear tested positive for seminal fluid, but it could have been vaginal fluid. While there were stains on the bedding, the expert did not see sperm.
In a six-count information, the prosecution charged Sandoval with five counts of committing a lewd act on a child under the age of 14 years old (§ 288, subd. (a); Doe No. 1), and one count of committing a lewd act on a child under the age of 14 years old (§ 288, subd. (c)(1); Doe No. 2)
The five counts regarding the molestation of Doe No. 1 each charged a different type of touching: touching breasts (count 1), touching vagina (count 2), digital penetration (count 3), touching Sandoval's penis (count 4), and intercourse (count 5). The jury found him guilty as charged. His 12-year prison term included the mid-term of six years for count 2, and two years for each of counts 3, 4, and 5 (one-third the mid-term). The court ordered the sentences for counts 1 and 6 would run concurrently to the sentences on the other counts.
DISCUSSION
Sandoval argues section 654 bars separate punishments for counts 4 and 5 because the fondling of his penis was only in preparation for the act of intercourse. As we will explain, separate punishments were appropriate because it was reasonable to conclude the touching of Sandoval's penis (count 4) had a separate goal of arousal.
Section 654 generally prohibits the imposition of multiple punishments for offenses arising out of a single act or indivisible course of conduct. (§ 654, subd. (a).) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
"However, the rule is different in sex crime cases. Even where the defendant has but one objective—sexual gratification—section 654 will not apply unless the crimes were either incidental to or the means by which another crime was accomplished. [Citations.]" (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006 (Alvarez); e.g., People v. Siko (1988) 45 Cal.3d 820, 826 [separate punishment for lewd conduct impermissible where basis for rape and sodomy convictions]; People v. Madera (1991) 231 Cal.App.3d 845, 855 ["section 654 would bar separate punishment for applying lubricant to the area to be copulated"].)
"[S]ection 654 does not apply to sexual misconduct that is 'preparatory' in the general sense that it is designed to sexually arouse the perpetrator or the victim. [Citation.] That makes section 654 of limited utility to defendants who commit multiple sex crimes against a single victim on a single occasion. As our Supreme Court has stated, '[M]ultiple sex acts committed on a single occasion can result in multiple statutory violations. Such offenses are generally "divisible" from one another under section 654, and separate punishment is usually allowed. [Citations.]' [Citation.] If the rule were otherwise, 'the clever molester could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act.' [Citation.] Particularly with regard to underage victims, it is inconceivable the Legislature would have intended this result. [Citation.]" (Alvarez, supra, 178 Cal.App.4th at p. 1006.)
In the Alvarez case, the court determined there was no violation of section 654 in a case involving multiple sexual acts on a single occasion. (Alvarez, supra, 178 Cal.App.4th at pp. 1006-1007.) "[Defendant] started out by kissing [the victim] and trying to put his tongue into her mouth. After that, he penetrated her with his finger, and then he forced her to fondle his penis. While [defendant] insists the kissing was merely designed to facilitate the subsequent acts of penetration and fondling, the trial court could reasonably have concluded otherwise. In fact, the record is entirely susceptible of the interpretation that [defendant] kissed [the victim] for the purpose of his own arousal and that, in so doing, he was not facilitating any other form of sexual contact, although that is where things ultimately led. Each lewd act was separate and distinct, and none of the acts were necessary to accomplish the others. Therefore, with respect to counts 1 through 3, the forcible lewd acts appellant committed against [the victim] in December 2004, no violation of section 654 has been shown. [¶] The same analysis applies to the three acts of forcible lewd conduct involved in the January 2005 incident, which were alleged in counts 4 through 6. Since each of the charged acts—again, kissing, penetration and forced fondling—were separate and distinct, and none of the acts were necessary to accomplish the others, section 654 would not come into play on these counts, at least when considering them in relationship to one another." (Ibid.)
Whether section 654 applies in a case "is a question of fact for the trial court, which is vested with broad latitude in making its determination." (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.) We cannot reverse the trial court's ruling if there is substantial evidence to support it. (Id. at p. 916.) On appeal, the trial court's determination is reviewed in the light most favorable to the verdict; in addition, the court must presume the existence of any fact the trial court could reasonably deduce from the evidence presented at trial. (Ibid.)
Sandoval notes Doe No. 1 did not provide any testimony to support the jury's verdict on count 4 [Doe No. 1 touched Sandoval's penis]. This is true, she did not offer a lot of details about what happened, often stating she could not remember. She recalled three acts of sexual intercourse and referred to misconduct charged in counts 1, 2, and 3. She was never specifically asked if she touched Sandoval's penis.
Sandoval maintains Lopez's testimony regarding count 4 should be discounted because she simply agreed with the prosecutor's term "'masturbating'" and did not testify that was what actually transpired. We disagree with Sandoval's portrayal of Lopez's testimony. When her statements are viewed in context, the record shows she responded "yes" to a series of pointed questions about each of the charged offenses. Her responses confirmed the list of alleged acts were accurate. The following exchange took place:
"[Prosecutor:] Just before we broke, . . . Lopez, I was asking you to go back to your interview with [Doe No. 1], and you indicated that she described for you acts of touching her breasts; correct?
[Lopez:] Yes.
[Prosecutor:] Her vagina?
[Lopez:] Yes.
[Prosecutor:] Digital penetration?
[Lopez:] Yes.
[Prosecutor:] Masturbating the penis of [Sandoval]; correct?
[Lopez:] Yes.
[Prosecutor:] And acts of sexual intercourse?
[Lopez:] Yes.
[Prosecutor:] And she indicated, as to each of those types of events, that they occurred on more than one occasion; is that accurate?
[Lopez:] Yes."
Contrary to Sandoval's argument, the social worker did not simply mindlessly agree with the prosecutor on one event. She confirmed Doe No. 1 described each of the sexual acts described and each occurred on more than one occasion. Lopez had the opportunity to offer clarification or disagree with the prosecutor's terminology describing what transpired.
Sandoval also maintains the word "masturbation" can refer to "'any touching or contact, however slight, of the genitals of either the victim or the offender, with the requisite intent.' [Citations.]" This argument ignores that the prosecutor's question was not whether Doe No. 1 masturbated. She specifically asked if Lopez heard Doe No. 1 say she masturbated Sandoval's penis. In this context, any ambiguity about the word "masturbation" was clarified as meaning Doe No. 1 touched Sandoval's penis.
We conclude Lopez's testimony provided evidence Doe No. 1 touched Sandoval's penis on more than one occasion in addition to multiple sexual encounters. This determination does away with Sandoval's primary argument on appeal that his account of what transpired was the only evidence relating to count 4. Sandoval cited to his police interview where he described how Doe No. 1 grabbed his penis to insert it inside her vagina for sexual intercourse. He concluded this testimony showed the act in count 4 (touching) was in furtherance of committing the act in count 5 (intercourse) and section 654 applied to this kind of incidental conduct. As stated, Lopez's testimony provided evidence Sandoval had Doe No. 1 "masturbating the penis of [Sandoval]" on more than one occasion, meaning there were encounters separate from Sandoval's admission of one act of sexual intercourse (count 5). Moreover, Sandoval overlooks the portion of the interview where he confirmed he "got hot" when Doe No. 1 touched his penis before engaging in intercourse. This evidence supports the conclusion Sandoval's act of having Doe No. 1 touch his penis was not necessary to enable Sandoval to have intercourse and could more reasonably be interpreted as done for the separate purpose of his arousal. For this additional reason, we conclude it was reasonable for the trial court to determine the acts in counts 4 and 5 involved distinct sexual objectives and one was not necessary to commit the other.
DISPOSITION
We affirm the judgment.
O'LEARY, P. J. WE CONCUR: FYBEL, J. GOETHALS, J.