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People v. Gomez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Jan 23, 2012
H036377 (Cal. Ct. App. Jan. 23, 2012)

Opinion

H036377

01-23-2012

THE PEOPLE, Plaintiff and Respondent, v. NEXIS RENE GOMEZ, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. CC944457)

Defendant Nexis Rene Gomez was convicted after jury trial of six counts of aggravated sexual assault of a child under 14 (Pen. Code, § 269); six counts of forcible lewd conduct (§ 288, subd. (b)(1)); and one count each of forcible sexual penetration (§ 289, subd. (a)(1)), forcible oral copulation (§ 288a, subd. (c)(2)), and possession of child pornography (§ 311.11, subd. (a)). The trial court sentenced defendant to prison for the indeterminate term of 90 years to life consecutive to the determinate term of 50 years. On appeal, defendant contends that the court committed prejudicial error when it failed to instruct the jury sua sponte on the lesser included offense of statutory rape (§ 261.5) as to two of the counts of aggravated sexual assault of a child under 14. We disagree and, therefore, we will affirm the judgment.

All further statutory references are to the Penal Code.

BACKGROUND

Defendant was charged by first amended information with six counts of aggravated sexual assault of a child under 14 by rape (§ 269; counts 1, 2, & 9 - 12); six counts of forcible lewd acts upon a child under 14 (§ 288, subd. (b)(1); counts 3 - 8); and one count each of forcible sexual penetration (§ 289, subd. (a)(1); count 13), forcible oral copulation (§ 288a, subd. (c)(2); count 14), and possession of child pornography (§ 311.11, subd. (a); count 15).

The Prosecution's Case

Defendant was a close friend of L.'s father. L. was 16 years old at the time of defendant's July 2010 trial, and defendant was 32. L. was nine years old and living in an apartment on Cadillac Street with her parents, brothers, and defendant, when defendant first touched her sexually. He grabbed her by the waist, sat her down on him so that his penis was touching her vagina, and moved her up and down for a number of minutes. Both of them were fully clothed, defendant was lying on his back in the living room of the apartment, and L. could feel his erect penis. Thereafter, defendant touched L. this same way once or twice each week.

In April 2004, L.'s family and defendant moved into an apartment on Lexington, and the family lived there until November 1, 2007. Defendant moved to a nearby apartment before the family moved out. It was at the family's Lexington apartment where, when L. was 11 or 12 years old, defendant first took her clothes off before pushing her down on his bed, rubbing his penis between her vaginal lips, and ejaculating into a towel. Defendant touched her this same way about two times each week thereafter. He also put his mouth on her vagina once or twice a week, and put his fingers in her vagina. Almost every time he touched her, she told him that she did not want to do it, but he would say "It's something that we can't stop no more. We have to keep it going." She would continue to protest but he did not care what she had to say. Once, defendant put his penis inside L.'s vagina. It hurt her a lot and caused her to bleed and to scream.

After defendant moved out of L.'s family's Lexington apartment, he would call L. and tell her to come to his apartment. She did not want to, but defendant told her that it was something he could not stop. He told her that if she did not come over, he would tell her parents. L. was afraid that if defendant told her parents what was going on, they would not believe her side of the story. She did not tell her parents because defendant threatened her. He said, "If I go to jail . . . four months and I'll be out." "I'll go after you. I'll ruin your life." She took this to mean that he would become violent and it caused her to be afraid of him.

In April 2007, L.'s mother took L. to see a doctor because L. was complaining of a rash outside her vagina. The doctor asked L. if she had ever been abused. L. was afraid and did not tell her mother or the doctor about defendant's abuse.

Around L.'s 13th birthday in mid 2007, while the family still lived on Lexington, defendant told L. that he had made a video of her. He tried to show it to her, but she did not want to watch it. He told her that if she did not continue to come to his apartment, he would show the video to her parents or load it onto the internet and tell her friends. L. was afraid that her parents and her friends would think badly of her. She felt that defendant was doing this in order to force her into continuing to go to his apartment.

In November 2007, L.'s family moved to an apartment on Camden. Defendant and his roommate moved into an apartment above them about one month later. Defendant started giving L. money and buying things for her, including three cell phones. Defendant told L. that she would have to pay him back if she did not continue coming to his apartment and he continued to threaten her with the video. L. was also afraid that defendant would hurt her physically. The sexual touchings continued and once, for the second time, defendant put his penis inside her vagina again, causing her to bleed.

L.'s family moved back to an apartment on Cadillac in 2009. Early on May 16, 2009, defendant asked L. to come to his apartment. When she arrived with a friend, she asked defendant if she could borrow some money. He told her that, since he was giving her the money, she had to stay and she had to tell her friend to leave. After L.'s friend left, defendant took L. into his bedroom. He said, "If you want to be done with this, if you want everything to stop and me not looking for you, . . . let me put my penis more than between your lips." He pushed L. down on his bed, threatened her, put his finger in her vagina, put his mouth on her vagina, and rubbed his penis between her vaginal lips as he had done in the past. However, when he tried to do more, L. told him no and started screaming. He became angry and put a pillow over her face. He let her go when she started crying.

On the afternoon and evening of May 16, 2009, Maribelle Garcia-Segura attended a birthday party at L.'s family's apartment on Cadillac. Garcia-Segura has known L.'s family and defendant since 2003. During the party, L. was sitting with a male friend when defendant told L. that he did not want her to be with the boy. Later that evening, Garcia-Segura saw defendant push L. up against a tree, shake her, and threaten her. Defendant told L. that he did not want her to have any male friends or to talk with anyone, and that if she did she was going to pay seriously for it. Garcia-Segura told defendant to leave L. alone and that she was going to call the police. Defendant responded that, if she did so, it would be worse for L. He also said that he would be out, regardless, in three months and then it would be "bad" for both L. and Garcia-Segura.

L. went to her mother, crying, and told her that defendant was "shooing away" her friends. She then took her mother inside and told her that defendant had been abusing her. Although L. had complained the year before about being suicidal, this was the first time she disclosed to her family defendant's abuse. L.'s mother reported the abuse to the police on May 17, 2009.

On May 18, 2009, while at the police station, L. made a pretext telephone call to defendant. An audio recording of the call was played for the jury. During the call, L. told defendant that she had told her father "everything" except that she did not say that it began when she was nine; she told him that "it had just [begun]." Defendant responded, "Yes um." L. said that, "If I had told him that it had begun since, already since I was nine years old he would have been angrier." Defendant responded, "Yes he would have killed me. And in part I have to thank you." Defendant said that he was not going to "bother" L. anymore, and that she should tell her father that "everything happened without thought." Defendant asked L. if she told her father "that I had forced you . . . ?" L. responded, "Well yes." She said, "I told you many times 'Stop.' And you told me no the police isn't going to do anything to me." Defendant responded, "Do you understand that I don't care if I have to go to jail?" L. asked defendant whether the video he had threatened her with showed them doing "[t]hose things," and defendant said "Yes," "you looked good," "but, I'm going to get rid of it I swear." "I swear that I won't blackmail you that way again with, with a video my love." Defendant said, "Your mother now knows that you're not a virgin all of that." "What did she tell you about that?" L. responded, "She got angry with me. How could you do that?" At the end of the conversation, defendant told L., "If you see that [your father is] going to call the police you give me, me, me, tell me okay?"

Defendant was arrested at his apartment complex on May 21, 2009. In defendant's apartment, officers found a laptop computer containing a video of defendant and L. which showed defendant removing L.'s clothing, defendant with his penis between L.'s vaginal lips, and defendant with his mouth on L.'s vagina. L. was about 12 years old in the video.

Carl Lewis, a retired law enforcement officer, testified as an expert in the area of Child Sexual Abuse Accommodation Syndrome, which is "information that is intended to describe some unexpected conditions or behaviors or facts that occur in child sexual abuse cases that conflict with many people's preconceived ideas about child sexual abuse and about child sexual abuse victims." He testified that the categories of unexpected behaviors are secrecy; helplessness; entrapment and accommodation; and delayed, conflicted, unconvincing disclosure. "It's very difficult to communicate for many children about sexual abuse, not only because it's embarrassing and shameful, but also because of some realization of the consequences of disclosing." "In fact, when I would interview children and ask them about a delay in disclosure, the two most common explanations that I would hear are that they were afraid they would get in trouble and they were afraid no one would believe them."

The Defense Case

Dinorah Jamison, a friend of defendant's roommate, met defendant in 2007 or 2008. One day, Jamison and a friend were in defendant's bedroom with defendant looking at a video when a young girl came to defendant's apartment. The girl went "straight to his room and ask[ed] him for his cell phone . . . . And he just handed the phone to her, but she seem[ed] to be upset to see me and Carla [in] his room." Another time, when Jamison dropped defendant's roommate off after work, Jamison saw the same young girl in the kitchen of the apartment talking to defendant. Jamison told defendant to be careful. Defendant responded that the girl was his friend's daughter, that he used to live with them, and that "we have a good relation." Another time, Jamison was at the apartment with defendant's roommate when the same young girl knocked on the apartment door. The girl asked if defendant was home and, when told that he was not, the girl walked inside and knocked on defendant's bedroom door anyway. The girl left after being told again that defendant was not home.

Verdicts and Sentencing

On August 3, 2010, the jury found defendant guilty of all 15 counts as charged in the amended information. On December 3, 2010, the court sentenced defendant to the indeterminate term of 90 years to life consecutive to the determinate term of 50 years.

DISCUSSION

The court discussed its proposed jury instructions with the parties four times: prior to the presentation of evidence, after all the prosecution witnesses had testified, just prior to instructing the jury, and while the jury was deliberating. All instructions on lesser included offenses requested by the parties were read to the jury, and the parties agreed that any other lesser included offense instructions would be inappropriate as not supported by the evidence.

Nevertheless, in this court, defendant contends that the trial court had a sua sponte duty to instruct the jury on unlawful sexual intercourse with a minor (§ 261.5, "statutory rape") as to counts 1 and 2, the two counts of aggravated sexual assault of a child under 14 by rape (§ 269) that involved acts that occurred between June 2003 and August 2007, which was when L. was between 9 and 13 years old and prior to defendant's disclosure to L. of the videotape he had made. He argues that statutory rape is a lesser included offense of aggravated sexual assault of a child under 14 by rape under the accusatory pleading test, and that there was substantial evidence to support the giving of the instruction on the lesser included offense. "[The] evidence was sufficiently 'substantial' to suggest that at least some of the sexual encounters were accomplished without force or duress, and that therefore the jury should have been given the option of finding [defendant] guilty of the lesser offense of sexual intercourse with a minor." Defendant further argues that, had the jury been instructed on the offense of statutory rape with respect to counts 1 and 2, it is reasonably probable that the jury would have rejected the greater offenses for the lesser.

The People do not dispute defendant's assertion that statutory rape is a lesser included offense of aggravated sexual assault of a child by rape under the accusatory pleading test. However, the People contend that the court properly refused to instruct the jury on statutory rape because "there was no evidentiary basis for instructing the jury on statutory rape."

"Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 117-118.) As we stated above, the People do not dispute defendant's assertion that statutory rape is a lesser included offense of aggravated sexual assault of a child in this case. "Here, the information charged [defendant] with committing a forcible rape on a child who was 9, 10, 11, 12, and 13 years old and 10 or more years younger than [defendant]. Under the facts as alleged, [defendant] could not have committed the rape without also violating section 261.5, subdivision (c), which pertains to a perpetrator who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than him. (§ 261.5, subds. (a), (c).) Therefore, under the accusatory pleading test, unlawful sexual intercourse constituted a lesser included offense to counts one and two (§ 269, subd. (a)(1), aggravated sexual assault of a child by rape)."

"A criminal defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and an erroneous failure to instruct on a lesser included offense constitutes a denial of that right. To protect this right and the broader interest of safeguarding the jury's function of ascertaining the truth, a trial court must instruct on an uncharged offense that is less serious than, and included in, a charged greater offense, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged greater offense are present. [Citations.] [¶] But this does not mean that the trial court must instruct sua sponte on the panoply of all possible lesser included offenses. Rather, . . . ' "such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." ' [Citation.]" (People v. Huggins (2006) 38 Cal.4th 175, 215.) "Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. [Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130, 174.)

Any error in failing to instruct on a lesser included offense does not warrant reversal unless an examination of the entire cause, including the evidence, discloses that "it appears 'reasonably probable' the defendant would have achieved a more favorable result had the error not occurred." (People v. Breverman (1998) 19 Cal.4th 142, 149; see People v. Watson (1956) 46 Cal.2d 818, 836.) A reasonable probability in this context does not mean more likely than not; it means a reasonable chance and not merely a theoretical or abstract possibility. (See People v. Blakeley (2000) 23 Cal.4th 82, 94; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)

In this case, we agree with the People that there was no evidentiary basis for instructing the jury on statutory rape as a lesser offense of counts 1 and 2. (People v. Huggins, supra, 38 Cal.4th at p. 215.) First, there is "the long-standing presumption that children under age 14 cannot give legal consent to sexual activity." (People v. Soto (2011) 51 Cal.4th 229, 248, fn. 11.) And, when the law " 'implies incapacity to give consent, . . . this implication is conclusive. In such case the female is to be regarded as resisting, no matter what the actual state of her mind may be at the time. The law resists for her.' " (Id. at p. 248, quoting People v. Verdegreen (1895) 106 Cal. 211, 215.)

Second, L. testified that defendant's acts of sexual intercourse with her when she was 11, 12, and 13 years old were accomplished against her will. (See People v. Griffin (2004) 33 Cal.4th 1015, 1027 [the gravamen of forcible rape is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury].) L. testified that about two times each week at the family's Lexington apartment, when she was 11 or 12 years old, defendant took her clothes off before pushing her down on his bed, rubbing his penis between her vaginal lips, and ejaculating into a towel. He also put his mouth on her vagina once or twice a week, and put his fingers in her vagina. Almost every time he touched her, she told him that she did not want to do it, but he would say "It's something that we can't stop no more. We have to keep it going." She would continue to protest but he did not care what she had to say. In addition, L. testified that after defendant moved out of L.'s family's Lexington apartment, he would call L. and tell her to come to his apartment. She did not want to, but defendant told her that if she did not come over, he would tell her parents. L. was afraid that if defendant told her parents what was going on, they would not believe her side of the story. She did not tell her parents because defendant threatened her. He said, "If I go to jail . . . four months and I'll be out." "I'll go after you. I'll ruin your life." She took this to mean that he would become violent and it caused her to be afraid of him.

Defendant's statements to L. during the pretext telephone call and the video defendant made also support the finding that defendant's acts of sexual intercourse with L. prior to when she turned 13 were accomplished against her will. Defendant did not deny that he had forced L. to engage in acts of sexual intercourse after L. told defendant during the pretext call that she had told her father that defendant had forced her. And, defendant did not deny that he had responded that the police were not going to do anything to him when L. said that she had told him many times to stop; instead, he responded that he did not care if he had to go to jail. The video, which was made when L. was about 12 years old, showed defendant removing L's clothing, throwing L. around on his bed, and putting his mouth on L.'s vagina and moving his penis between L.'s vaginal lips while constantly changing his and her body positions.

On this record, we find that there was no evidentiary basis on which the court was required sua sponte to instruct the jury on the lesser included offense of statutory rape as to counts 1 and 2. Although the jury might have implied from Jamison's testimony that L. sometimes willingly went to defendant's apartment, it cannot be reasonably inferred from Jamison's testimony that L. sometimes willingly submitted to defendant's acts of sexual intercourse. As there is no evidence that the offenses were less than that charged, the court did not err in failing to instruct the jury on the lesser included offense of statutory rape.

DISPOSITION

The judgment is affirmed.

________________

BAMATTRE-MANOUKIAN, J.
WE CONCUR: ________________

PREMO, ACTING P.J.
________________

ELIA, J.


Summaries of

People v. Gomez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Jan 23, 2012
H036377 (Cal. Ct. App. Jan. 23, 2012)
Case details for

People v. Gomez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. NEXIS RENE GOMEZ, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Jan 23, 2012

Citations

H036377 (Cal. Ct. App. Jan. 23, 2012)