Opinion
G054147
05-22-2018
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO PEREZ MEDINA, Defendant and Appellant.
Jared G. Coleman, 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 Brendon W. Marshall, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14HF2504) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed in part, reversed in part, and remanded with directions for resentencing. Jared G. Coleman, 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 Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Alejandro Perez Medina appeals from the judgment of conviction entered after a jury found him guilty of committing a lewd act on a child under 14 years old, oral copulation with a child under 14 years old, a lewd act on a 15-year-old child who was at least 10 years younger than defendant, and oral copulation with a child under 16 years of age by a person over 21 years of age. Defendant contends that with regard to his conviction for committing a lewd act on a 15-year-old child, the trial court erred by instructing the jury with CALCRIM No. 1112 because it contained language he contends incorrectly "absolved the jurors from finding that [he] had the statutorily required lewd intent" when he touched his victim in the commission of that offense.
He also argues the trial court erred by failing to stay the execution of sentence on either his conviction for committing a lewd act on a child under 14 years old or his conviction for committing oral copulation with a child under 14 years old because they constituted a single act within the meaning of Penal Code section 654. (All further statutory references are to the Penal Code, unless otherwise specified.)
We affirm in part, reverse in part, and remand for resentencing with directions. We reverse defendant's conviction for committing a lewd act on a 15-year-old child who was at least 10 years younger than defendant because, as acknowledged by the Attorney General in the respondent's brief, insufficient evidence supported that conviction. Because defendant's contention of instructional error applied only to that conviction, we do not address the merits of that argument. We otherwise affirm the judgment of conviction in its entirety.
As also conceded by the Attorney General in the respondent's brief, the trial court erred by failing to stay execution of sentence with regard to either defendant's conviction for committing a lewd act on a child under 14 years old or his conviction for oral copulation with a child under 14 years old. We therefore remand for resentencing to stay execution of sentence with regard to one of those two offenses.
FACTS
In 2014, 15-year-old K.C. lived with (1) her mother, (2) defendant, who was her mother's boyfriend, and (3) defendant and her mother's two children. On the morning of June 30, 2014, K.C. woke up because she felt someone touching her. She saw defendant "kind of over" her and trying to take her pants off. He pulled down her pants and underwear and licked her vaginal area. After K.C. heard him unzip his pants, she immediately pulled away and started yelling at him.
Defendant sat down on a bed near K.C.'s bed and told her it had been a long time since he had had sex. He told her that he had paid for the concert tickets she had wanted and that "this" was the way she could pay him back. He also told her that if she let him "do it" he would "have [her] papers." K.C. understood defendant's comment to mean that if she agreed to engage in sexual activity with him, he could help her with immigration-related papers.
K.C. telephoned her mother, who had already left for work. Defendant ran out of the room. K.C.'s mother told her to call the police and K.C. complied.
K.C. testified that defendant had done "the same thing" to her when she was 12 years old, and when she had been in the second grade.
PROCEDURAL HISTORY
Defendant was charged in an amended information with: (1) committing a lewd act upon a child under 14 years of age in violation of section 288, subdivision (a) between January 1, 2010 and August 29, 2012 (count 1); (2) oral copulation with a person under 14 years of age in violation of section 288a, subdivision (c)(1) between January 1, 2010 and August 29, 2012 (count 2); (3) committing a lewd act upon a child in violation of section 288, subdivision (c)(1) by touching the breast of a child of 15 years of age and 10 years younger than defendant on June 30, 2014 (count 3); (4) committing a lewd act upon a child in violation of section 288, subdivision (c)(1) by touching the vagina of a child 15 years of age and at least 10 years younger than defendant on June 30, 2014 (count 4); (5) oral copulation with a minor under 16 years of age by a person over 21 years of age in violation of section 288a, subdivision (b)(2) on June 30, 2014 (count 5); and (6) committing a lewd act upon a child in violation of section 288, subdivision (c)(1) by touching the buttocks of a child 14 or 15 years of age and at least 10 years younger than defendant between January 1, 2014 and June 30, 2014 (count 6).
The jury found defendant guilty of counts 1, 2, 4, and 5 and found defendant not guilty of counts 3 and 6. The trial court sentenced defendant to a total prison term of five years and eight months by imposing the low term of three years on count 1, a consecutive two-year term (1/3 the middle term) on count 2, a consecutive eight-month term (1/3 the middle term) on count 4; and a concurrent two-year term (the middle term) on count 5. Defendant appealed.
DISCUSSION
I.
WE REVERSE COUNT 4 FOR INSUFFICIENT EVIDENCE AND THEREFORE DO NOT REACH
DEFENDANT'S CONTENTION OF INSTRUCTIONAL ERROR.
Defendant argues that the trial court erred by instructing the jury with CALCRIM No. 1112 because it instructed the jury, with regard to counts 3, 4, and 6, that the prosecution was not required to prove the alleged acts underlying those counts actually aroused, appealed to, or gratified the lust, passions, or sexual desires of the perpetrator or the child. Defendant's argument applies only to count 4 because the jury found him not guilty of counts 3 and 6.
In the respondent's brief, the Attorney General acknowledges insufficient evidence supported defendant's conviction for count 4. The amended information alleged in count 4 that defendant committed a lewd act in violation of section 288, subdivision (c)(1) by touching the vagina of a child 15 years of age who was at least 10 years younger than defendant in June 2014 (count 4). While there was evidence supporting defendant's conviction for count 5 based on defendant's oral copulation of K.C. in June 2014, there is no evidence showing he committed a separate act of touching her vagina to support his conviction on count 4. Because we reverse defendant's conviction on count 4 as unsupported by substantial evidence, we do not reach defendant's contention of instructional error.
II.
THE TRIAL COURT ERRED BY FAILING TO STAY EXECUTION OF PUNISHMENT ON
EITHER COUNT 1 OR 2.
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Defendant argues the conduct underlying counts 1 and 2 involved a single act within the meaning of section 654, subdivision (a). Defendant also argues because count 1 for committing a lewd act was based on defendant's conduct of removing K.C.'s clothing in preparation for his conduct of orally copulating her as charged in count 2, the trial court erred by failing to stay execution of sentence as to either count 1 or 2 under section 654, subdivision (a).
In his appellate brief, defendant argued that the trial court erred by staying execution of punishment on either count 4 or 5 under section 654, subdivision (a). Because we reverse defendant's conviction on count 4 for insufficient evidence as discussed ante, we do not address defendant's sentencing argument as to counts 4 and 5.
The Attorney General concedes the trial court should have stayed execution of sentence as to one of those two offenses. We agree that under section 654, subdivision (a), the trial court should have stayed execution of sentence on either count 1 or 2. We remand to the trial court with directions to do so.
DISPOSITION
The judgment is reversed as to count 4 and is otherwise affirmed in its entirety. We remand to the trial court for resentencing with directions that the court stay execution of sentence with regard to either count 1 or 2 pursuant to section 654, subdivision (a). The trial court shall thereafter prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
FYBEL, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.