Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD192829, Randa Trapp, Judge.
O'ROURKE, J.
A jury convicted Teodoro Hernandez of sixteen counts of lewd and lascivious acts on children under the age of 14 (Pen. Code, § 288, subd. (a)). For each count, the jury found Hernandez had substantial sexual conduct with his victims (§ 1203.066, subd. (a)(8)) and committed the crime against more than one victim (§ 667.61, subds. (b), (c), and (e)). The court sentenced Hernandez to 45 years to life as follows: consecutive terms of 15 years to life each for counts 1, 9, and 15, with concurrent sentences for the other counts.
Statutory references are to the Penal Code unless otherwise specified.
Hernandez contends: (1) the evidence was insufficient to support the counts 9 and 10 convictions; and (2) he was denied his federal constitutional right to a jury trial because the court imposed consecutive sentences based on facts not found true by the jury. We affirm.
FACTUAL BACKGROUND
For several years, Hernandez lived with Veronica E. and her children, including Cynthia O. and Jessica E. Hernandez began molesting Cynthia when she was in the fourth or fifth grade and continued doing so for over one year. Cynthia testified that he "put his private part (his penis) in mine (her vagina)." On one occasion, he placed his penis on her buttocks and moved it back and forth until a white liquid came out of his penis and spilled on the floor. Hernandez also touched Cynthia's vagina under her clothes, had her rub his penis with her hand, and put his penis in her mouth. He threatened to hit Cynthia if she told her mother about these incidents.
Jessica testified Hernandez placed his hands on top of her "private parts" several times, after which he placed his penis inside her buttocks and vagina and would move it until a white liquid came out. Hernandez also had Jessica hold his penis and placed his penis in her mouth and moved it. He told her he would kill her brother if she told anyone.
Hernandez was convicted of molesting Z., a two-year-old girl in foster care. Z.'s foster mother testified as follows: in May 2005, Z. and her sister, M., were visiting their biological mother at her home, and Hernandez was present. Afterwards, Z. told her foster mother that Hernandez "put his pee-pee in my mouth," and "in my pee-pee," and "in my back." M. told the foster mother that she saw Hernandez put his private part in Z.'s mouth. M. also testified she saw Z.'s hand touch Hernandez's penis.
San Diego Detective Francisco Rivera testified Hernandez admitted the following in an interview: placing his penis between both Cynthia's and Jessica's buttocks on multiple occasions and masturbating until ejaculation, and asking Z. to put his penis in her mouth.
At trial, Hernandez denied engaging in sexual misconduct with any of the girls and claimed they were lying at the preliminary hearing and at trial. He also testified that he had lied to the detective regarding his sexual misconduct with the girls because he believed doing so would help him regain custody of his two sons.
DISCUSSION
I.
Hernandez contends insufficient evidence supported the verdicts on counts 9 and 10 because there was no evidence that he touched both the victim's vagina and buttocks with his hand during a single event or on a single occasion, as stated in the information. He asserts Cynthia never testified or told others that he touched her vagina and buttocks with his hand on a single occasion or in a single occurrence. Additionally, he never testified or made statements admitting to touching both her vagina and buttocks. He seeks to have the verdicts vacated and the counts remanded for resentencing.
The information alleged in counts 9 and 10 that Hernandez "touched [Cynthia's] vagina and buttocks with his hands... in violation of PENAL CODE SECTION 288(a)."
When determining whether a verdict or judgment was based on sufficient evidence, the court must examine the whole record in the light most favorable to the judgment. (In re Michael D. (2002) 100 Cal.App.4th 115, 125-126.) "[O]ur role as an appellate court is not to make new findings of facts or second-guess the trier of fact. We only determine whether there is substantial evidence supporting the conclusion of the trier of fact." (Id. at pp. 126-127.) "Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence." (Id. at pp. 125-126.) Here, Cynthia's testimony and Hernandez's interview with the detective, detailed above, provided sufficient evidence to support the jury's finding that Hernandez touched Cynthia on the buttocks and vagina on at least two occasions, as charged in counts 9 and 10 and as required to satisfy section 288, subdivision (a). This evidence sufficed to demonstrate that Hernandez intended the touchings to arouse, appeal to, or gratify his lust, passions, or sexual desires. Therefore, we reject Hernandez's contention.
Hernandez points to a variance between the pleading and the evidence. However, when considering the sufficiency of the evidence, the court measures the sufficiency against the penal statute, not the allegations of the petition. (In re Michael D., supra, 100 Cal.App.4th at p. 127.)
Penal Code section 288, subdivision (a) states: "Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, 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 and shall be punished by imprisonment in the state prison for three, six, or eight years."
Section 228, subdivision (a) does not require the prosecution to show that the accused touched a specific body part or any combination of body parts. "[S]ection 288 is violated by 'any touching' of an underage child committed with the intent to sexually arouse either the defendant or the child. [¶]... Nothing in [the language of section 288] restricts the manner in which such contact can occur or requires that specific or intimate body parts be touched. Rather, a touching of 'any part' of the victim's body is specifically prohibited." (People v. Martinez (1995) 11 Cal.4th 434, 442.) Thus, a trier of fact merely needs to determine, "based on all the circumstances, that an underage child was 'touched' with the requisite sexual intent. A construction permitting conviction for any and all sexually motivated contact is supported by the relevant statutory language and surrounding scheme, and apparently has been accepted by the Legislature." (Id. at p. 438.)
Hernandez's argument regarding a variance between the pleading and the proof in counts 9 and 10 fails because the accused must object to a variance at trial. (People v. Maury (2003) 30 Cal.4th 342, 427). Moreover, a variance is only material if it fails to give the accused adequate notice of the charges against him and misleads him in preparing the defense or is likely to place him in second jeopardy for the same offense. (In re Michael D., supra, 100 Cal.App.4th at p. 128.) Hernandez failed to object at trial and therefore forfeited his right to object to the variance on appeal. Even if Hernandez had objected, the variance did not deprive him of notice regarding the charges he faced. Hernandez fails to show prejudice as a result of the variance or that his defense would have changed absent the variance. Given the substantial evidence supporting the counts 9 and 10 convictions, we conclude that any variance was immaterial.
II.
Hernandez contends that the imposition of consecutive sentences violates his federal Sixth and Fourteenth Amendment rights to a jury trial, but claims to raise this issue "to preserve [his] federal review rights." He concedes that the California Supreme Court decided this issue adversely to his claim in People v. Black (2007) 41 Cal.4th 799 (Black), which we are bound to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, as in Black, the consecutive sentences were appropriate because each sentence involved separate victims and occurred on separate occasions. (Black, supra, 41 Cal.4th at p. 807.) Further, the offenses were serious in that the defendant preyed on his stepdaughter and the children of a family friend. The sentence did not implicate Hernandez's Sixth Amendment rights. (Id. at p. 821.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., IRION, J.