Opinion
F086192
01-31-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE JUAN MENA-BARBA, Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. No. 18CR-04292 Steven K. Slocum, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Defendant Jose Juan Mena-Barba was charged with multiple counts related to his molestation of a minor family member beginning when the minor was in kindergarten or the first grade and defendant was 18 years old, and continuing for years. A jury convicted defendant of three counts of forcible lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1); counts 2, 3 &7), one count of lewd acts on a child under the age of 14 (§ 288, subd. (a); count 1), and one count of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b); count 8). He was sentenced to a determinate term of 20 years' imprisonment, plus an indeterminate term of 15 years to life.
All undesignated statutory references are to the Penal Code.
On his first appeal, defendant raised the following claims: that his conviction for sexual penetration of a child 10 years of age or younger violated the federal and state ex post facto clause; several claims of prosecutorial misconduct and ineffective assistance of counsel; and that he should be resentenced based on the recent passage of Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124). This court agreed that defendant's conviction for sexual penetration of a child 10 years of age or younger violated the federal and state ex post facto clause and modified his conviction in count 8 to the lesser included offense of sexual penetration of a minor under 18 years of age under section 289, subdivision (h). We remanded the matter for full resentencing, at which time, Assembly Bill 124 would apply. In all other respects, the judgment was affirmed. (People v. Mena-Barba (Dec. 30, 2022, F082957) [nonpub. opn.] (Mena-Barba).)
At the resentencing hearing, defendant was sentenced to a determinate term of 20 years eight months in prison. This appeal is taken from the resentencing hearing. Appointed counsel for defendant asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a letter stating any grounds on appeal within 30 days of the date of filing of the opening brief. Defendant did not file a letter in response. After review of the record, we identify no basis for relief and affirm the judgment.
PROCEDURAL SUMMARY
Between May 20 and May 21, 2021, a jury convicted defendant of three counts of forcible lewd acts on a child under the age of 14 years old in violation of section 288, subdivision (b)(1) (counts 2, 3 &7); one count of committing a non-forcible lewd act on a child in violation of section 288, subdivision (a) (count 1); and one count of sexual penetration of a child 10 years of age or younger in violation of section 288.7, subdivision (b) (count 8).
On June 21, 2021, the trial court sentenced defendant to a determinate term of 20 years in prison plus a consecutive indeterminate term of 15 years to life for the conviction under count 8. The 20-year determinate term consisted of consecutive full mid-term sentences of six years for the convictions under counts 2, 3 and 7 plus a two-year sentence (one-third the middle term) for the conviction under count 1. The court also ordered defendant to pay a $10,000 restitution fine pursuant to section 1202.4, subdivision (b); a $10,000 restitution fine pursuant to section 1202.45, which was suspended pending successful completion of parole; a $200 court security fee under section 1465.8; a $150 court facilities assessment under Government Code section 70373; and a $300 sex offender fine under section 290.3.
Defendant appealed, and this court vacated defendant's conviction for sexual penetration of a child under 10 in violation of section 288.7 under count 8 and reduced it to the lesser included offense of sexual penetration of a minor in violation of section 289, subdivision (h). This court remanded the matter for a full resentencing hearing. It otherwise affirmed the judgment of conviction. (Mena-Barba, supra, F082957.)
On April 28, 2023, the trial court held the resentencing hearing ordered by this court. The trial court considered the effect of Assembly Bill 124, which added paragraph (6) to section 1170, subdivision (b), and established a presumptive mandate to impose the lower term if "[t]he person is a youth or was a youth as defined under subdivision (b) of [s]ection 1016.7 at the time of the commission of the offense," "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances." (§ 1170, subd. (b)(6).) The court noted that section 1016.7, subdivision (b)(6) applied since defendant was a youth as defined by the statute in that he was under the age of 26 when the offenses were committed. The court found the factors in mitigation were outweighed by the factors in aggravation and imposed middle terms. Defendant was sentenced to a determinate term of 20 years eight months in prison. This consisted of the middle term of six years for the conviction under count 2; full consecutive middle term sentences of six years for the convictions under counts 3 and 7; two years (one-third the middle term) for the conviction under count 1; and eight months for the conviction under count 8. The court also ordered defendant to pay a $6,200 restitution fine pursuant to section 1202.4, subdivision (b); a $6,200 restitution fine pursuant to section 1202.45, which was suspended pending successful completion of parole; a $200 court security fee under section 1465.8; a $150 court facilities assessment under Government Code section 70373; and a $300 sex offender fine under section 290.3.
Section 1016.7, subdivision (b) defines "youth" to include "any person under 26 years of age on the date the offense was committed."
Defendant filed a timely notice of appeal on April 28, 2023.
The factual summary was taken from Mena-Barba, supra, F082957.
"A. testified defendant molested her from when she was six years old to about 13 years old, when she was in the seventh grade in middle school. Defendant was 18 years old at the time he began molesting A. A. lived with defendant '[b]asically all [her] childhood.' Defendant lived with A.'s family in A.'s first house 'off of Lander,' where he began being inappropriate with her. The house on Lander burned down when A. was approximately six years old and she was in the first grade. A. then lived at two different places on Third Street, which A. referred to as the 'blue house' and the 'yellow house,' and then she moved to a [mobile home] on Lander. When A. was living at the 'blue house' on Third Street, defendant did not live with her, but he would still come over and he would watch A. when her parents were gone. When A. moved to the 'yellow house' on Third Street, defendant lived in an RV on the property but not in the same house as A. When A. moved to the [mobile home] on Lander with her family, defendant again lived on the property but not in A.'s home.
"Defendant's inappropriate behavior towards A. occurred while A. lived in the first house on Lander, the two homes on Third Street, and when she moved back to Lander in the [mobile home]. A. explained defendant would touch her vagina and make her touch him and rub his penis. A. testified defendant touched her vagina '[e]very time he got a chance when [her] parents weren't home,' which was more than 10 times. She stated defendant put his fingers inside her vagina '[e]ver since I can remember,' '[b]ack when I was six.' Defendant did this '[a] lot of times,' and A. described that it hurt. The touching occurred in the living room. During this time, when A.'s parents were not home, defendant would also rub his penis on A. under her clothing. Defendant would open A.'s pants, pull her underwear down, and expose his penis by opening his zipper. He put his penis on her vagina more than once at the Lander house. To make A. touch his penis, defendant would grab her hand and put it on his erect penis and try to move her hand, but she would pull her hand away. A. testified there were times defendant would have his hand under her underwear and, with his other arm, he would touch his own penis and be 'jacking off.' While defendant was doing these things to A. at the house on Lander, he would 'talk dirty' to her. During the time defendant was sexually abusing A., he would threaten her '[a]ll the time'; he told her she 'better not say anything,' and 'if [she said] something, something bad's going to happen to [her] or it's going to go worse for [her].' Defendant's threats scared A.
"A. testified the same touching and threats continued while she was living at the two different houses on Third Street and when she later moved back to Lander. When A. moved to the first house on Third Street, which A. referred to as the 'blue house,' she was still in elementary school. A. moved to a second house on Third Street, which she referred to as the 'yellow house,' when she was almost in middle school. She moved back to Lander to a [mobile home] when she was in middle school. The inappropriate touching happened multiple times at each of the different houses. Defendant put his penis or his fingers in her vagina and touched her vagina with his hand multiple times at the first house on Lander, the blue house, the yellow house, and the [mobile home] on Lander. The sexual abuse stopped when A. was in middle school, which she felt was because she started maturing.
"A. explained most of the instances of defendant molesting her blended together, but one incident stood out. The incident occurred when A. was in middle school and living at the yellow house. A.'s parents were out of town and defendant tried to rape her. A. was in the living room and defendant 'was trying to pin [her] down, take off [her] clothes, and put his penis in [her] vagina.' A. started running around the living room and kitchen to get away. A. also ran into a bedroom where her siblings were watching television, and defendant followed her. Defendant eventually made A. go with him by threatening her that it would be worse for her if she did not. A. did not think her siblings were looking at her because they did not do or say anything. When A. went with defendant to the living room, he grabbed her and rubbed his penis on her vagina. Defendant then put his penis inside her vagina. She recalled it being painful and that it left her with bruises and redness. She testified this incident was not the first or last time defendant put his penis inside her vagina, it just stood out as a specific incident she remembered.
"A. did not come forward to law enforcement until she was about 20 or 21 years old. She decided to come forward at that time because she was a mother and had children of her own she needed to protect. A. first told her mother about it when she was 19 years old, but her mother did not believe her. She also told her boyfriend's mother when A. was 19 years old. A. told her child's father about the abuse, as well as her boyfriend. A. testified it was difficult for her to talk about what happened to her because it brought back unpleasant memories. A. testified she moved out of her parents' house when she was 20 years old. A. later moved back to live with her mother while defendant lived in the RV in the back of the property. During that time, her mother would take care of her children when A. was at school; defendant was not around her children.
"Two pretext telephone calls between A. and defendant were recorded during the investigation. In the first call, A. asked defendant, 'Do you remember how my parents would leave the ranch and you would touch me in my private areas?' And defendant responded, 'What about it?' Defendant told A. she was the one who would get in the bed. When A. asked defendant why he would touch her in her private parts he responded, 'Because you started it.' Even when A. reminded defendant she was a little girl, defendant maintained she was the one who 'started it' and that he could not 'remember everything too well.'
"In the second recorded pretext call, A. told defendant she needed him to apologize to her and he responded, '[W]hy do I need to apologize to you? If I didn't do anything to you.' Then defendant started telling A. that she owed him $100 she borrowed from him and that she should be apologizing to him. Defendant then said, 'First pay me what you owe me and then I'll tell you.' But then defendant continued to tell A. that he did not need to apologize for anything and that she needed to apologize to him for swearing at him when she was younger.
"A.'s interview with Detective Luis Ortiz took place over multiple conversations. A. testified she did not tell Detective Ortiz defendant 'raped' her using that specific word, but she told the detective that defendant penetrated her with his finger and put his penis in her vagina. A. initially could not remember whether she told Detective Ortiz defendant would rub his penis on her vagina or make her hold his penis, but after reviewing the police report, she testified she told Detective Ortiz defendant put his penis inside of her. She also reported to Detective Ortiz that defendant threatened her and she sustained physical injuries after the abuse. In her interview with Detective Ortiz, A. said she did not recall whether defendant talked dirty to her when he touched her or abused her.
"Detective Ortiz testified that A. did not use the 'exact words' that defendant put his penis in her vagina, but she told him defendant touched her and that there was penetration, which could have been digital or penile. Detective Ortiz testified A. said defendant probably talked dirty to her but she tried to forget it. Detective Ortiz did not recall A. telling him defendant threatened her and did not tell him she was physically injured from the abuse."
DISCUSSION
I. Wende Review
As noted above, appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, asserting he could not identify any arguable issues in this case. After defendant's appellate counsel filed his Wende brief on October 2, 2023, we invited defendant to inform this court within 30 days of any issues he wished addressed. Defendant did not file a letter in response.
After a thorough review of the record, we agree with defendant's appellate counsel that there are no arguable issues in this case. We conclude there is nothing in the record to suggest any error occurred.
DISPOSITION
We affirm the judgment.
[*] Before Detjen, Acting P. J., Pena, J. and Snauffer, J.