Opinion
D057891 Super. Ct. No. SCN270271
12-19-2011
THE PEOPLE, Plaintiff and Respondent, v. SECUNDINO TEODORO TORRES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed as modified, sentence vacated and remanded.
After Secundino Teodoro Torres waived his right to a jury trial, the trial court found him guilty of nine counts of forcible lewd acts on a child (Pen. Code, § 288, subd. (b)(1)); 18 counts of lewd acts on a child (§ 288, subd. (a)); two counts of employing a minor to perform prohibited acts (§ 311.4, subd. (c)); and one count of possessing matter depicting a person under the age of 18 in sexual conduct (§ 311.11, subd. (a)). The trial court sentenced Torres to prison for 94 years eight months.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Torres contends (1) that insufficient evidence supports a finding of guilt on each of the forcible lewd act counts; and (2) the trial court erred in imposing consecutive sentences on certain of the counts. We conclude that as to counts 16 and 17, the convictions are not supported by substantial evidence, and we will reduce those counts to the lesser included offense of nonforcible lewd acts on a child in violation of section 288, subdivision (a). We further conclude that the trial court erred in determining that counts 13, 14 and 15 require mandatory full-term consecutive sentences under section 667.6, subdivision (d). We therefore vacate the sentence in this matter and remand for resentencing.
I
FACTUAL AND PROCEDURAL BACKGROUND
Between the ages of eight and 12, C. was sexually abused by Torres, who worked at a ranch where C. lived with her family. C. reported the abuse to the police when she was 20 years old. When the police arrested Torres and searched his home, he admitted to the abuse and led the police to videotapes and photographs showing him sexually abusing C. The videotapes depict two different scenes during which Torres engaged in several acts of digital penetration, oral copulation, sexual intercourse and other lewd acts with C.
Based on the acts depicted in the videotapes, Torres was charged with eight counts of lewd acts on a child in counts 1 through 3, 6 and 7, and 9 through 11 (§ 288, subd. (a)), and with two counts of forcible lewd acts on a child in counts 4 and 8 (§ 288, subd. (b)(1)). Based on other incidents reported by C., but not depicted on the videotapes, Torres was charged with 11 additional counts of lewd acts on a child in counts 18 through 24, and 26 through 29 (§ 288, subd. (a)); and with seven additional counts of forcible lewd acts on a child in counts 13 through 17, 25 and 30 (§ 288, subd. (b)(1)). Because Torres used C. as a subject in the photographs and videotapes, Torres was charged in counts 5 and 12 with using a minor to perform prohibited acts. (§ 311.4, subd. (c).) Further, based on his possession of the videotapes and photographs of C., Torres was charged in count 31 with one count of possessing matter depicting a person under the age of 18 in sexual conduct. (§ 311.11, subd. (a).)
The main issue contested by Torres during the bench trial was whether the prosecution proved the counts alleging that he committed forcible lewd acts. Torres contended that, for those counts, he had not acted with the force necessary for a conviction under section 288, subdivision (b)(1), and he should instead be found guilty of the lesser included offense of committing a nonforcible lewd act on a child (§ 288, subd. (a)).
The trial court found Torres guilty on all of the counts except count 29, which it found to be insufficiently distinguishable from the conduct forming count 27. The trial court sentenced Torres to prison for 94 years eight months, running all of the sentences for the lewd act counts and forcible lewd act counts consecutively to each other.
II
DISCUSSION
A. Sufficiency of the Evidence to Support the Counts Alleging Forcible Lewd Acts
Nine of the counts against Torres alleged forcible lewd acts in violation of section 288, subdivision (b)(1). Two of those counts (counts 4 & 8) are based on acts of sexual intercourse depicted on the videotapes. The remaining seven of those counts (counts 13-17, 25 & 30) are based on incidents of oral copulation, digital penetration, anal penetration and sexual intercourse that are not depicted on the videos but that C. recalled happening to her when she was a child. Torres contends that there is insufficient evidence to support a conviction on any of the forcible lewd act counts.
1. Standard of Review
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)
2. Applicable Legal Standards
"Section 288(a) prohibits the commission of a lewd or lascivious act on a child under age 14 done with the intent to arouse or satisfy the sexual desires of the perpetrator or the child. Section 288(b)(1) further prohibits the commission of such an act 'by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . .' " (People v. Soto (2011) 51 Cal.4th 229, 237 (Soto).) The force used for a conviction under section 288, subdivision (b)(1) must "be 'substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' " (Soto, at p. 242.) Courts have held that the force required under section 288, subdivision (b) "includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves." (People v. Alvarez (2009) 178 Cal.App.4th 999, 1005 (Alvarez) [sufficient force was shown for the purposes of § 288, subd. (b) when defendant, "holding [victim] 'tight' and 'hard,' . . . digitally penetrated her against her will" and in another incident when the defendant "forcibly pulled [the victim] onto his lap and prevented her from leaving while he kissed her and inserted his finger in her vagina"]; see also People v. Bolander (1994) 23 Cal.App.4th 155, 161 (Bolander) ["defendant's acts of overcoming the victim's resistance to having his pants pulled down, bending the victim over, and pulling the victim's waist towards him constitute force within the meaning of" § 288, subd. (b)].)
In addition to being accomplished by force, a lewd act may also satisfy the definition in section 288, subdivision (b)(1) if it was accomplished "by use of violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (Ibid.) During trial, the prosecutor stated that he was not proceeding on those theories and was relying on evidence showing that Torres used force in the counts charged under section 288, subdivision (b)(1). Similarly, in arguing on appeal that substantial evidence supports the convictions under section 288, subdivision (b)(1), the Attorney General contends only that the evidence establishes the use of force, not that violence, duress, menace, or fear of immediate and unlawful bodily injury was present.
Torres argues that we should reject the authorities — including Alvarez and Bolander — which state that grabbing, holding and restraining a victim is sufficient to constitute force for the purposes of section 288, subdivision (b)(1). Torres advocates that we reject those cases in favor of People v. Schulz (1992) 2 Cal.App.4th 999 and People v. Senior (1992) 3 Cal.App.4th 765 (Senior). Schulz explained that "[s]ince ordinary lewd touching often involves some additional physical contact, a modicum of holding and even restraining cannot be regarded as substantially different or excessive 'force.' " (Schulz, at p. 1004.) On that basis, Schulz concluded that the defendant had not used force when he "awakened the victim by grabbing her arm, cornered her while she cried, held her arm, and touched her breasts and vaginal area." (Ibid.) Similarly, in Senior the court relied on Schulz to conclude that force was not present when the "defendant pulled the victim back when she tried to pull away from the oral copulations." (Senior, at p. 774.)
Courts have repeatedly criticized Schulz and Senior for their interpretation of the term "force" as used in section 288, subdivision (b). (See Alvarez, supra, 178 Cal.App.4th at p. 1004; Bolander, supra, 23 Cal.App.4th at pp. 159-161; People v. Neel (1993) 19 Cal.App.4th 1784, 1789-1790; People v. Babcock (1993) 14 Cal.App.4th 383, 387-388.) As Alvarez bluntly stated in joining the "chorus of disapproval of the Schulz holding" (Alvarez, at p. 1002), "Schulz is wrong" (id. at p. 1004). Indeed, in Babcock, the Sixth District Court of Appeal, which decided Schulz and Senior, revisited and rejected what it described as the "dicta" in those cases. (Babcock, at p. 388.) As Babcock explained, "the fatal flaw in . . . the analyses in Schulz and Senior[]is in their improper attempt to merge the lewd acts and the force by which they were accomplished as a matter of law. Unlike the court in Schulz, we do not believe that holding a victim who was trying to escape in a corner is necessarily an element of the lewd act of touching her vagina and breasts. Unlike the court in Senior, we do not believe that pulling a victim back as she tried to get away is necessarily an element of oral copulation." (Ibid.)
We agree with "the majority of courts" that the force described in section 288, subdivision (b)(1) "includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves." (Alvarez, supra, 178 Cal.App.4th at p. 1005.) The requirement is simply that the force "be 'substantially different from or substantially greater than that necessary to accomplish the lewd act itself' " (Soto, supra, 51 Cal.4th at p. 242), and restraining a victim can constitute that type of force.
We proceed to consider whether substantial evidence supports a finding that Torres used force substantially greater than that necessary to accomplish each of the lewd acts alleged under section 288, subdivision (b)(1).
3. Counts Not Depicted on the Videotapes
We first address the forcible lewd act counts that are based on conduct not depicted on the videotapes.
a. Counts 13, 14 and 15
The acts alleged in counts 13, 14 and 15 occurred when C. was eight years old, during which, for the first time, Torres oral copulated C. (count 13), digitally penetrated her (count 14), and had sexual intercourse with her (count 15). As C. described this incident, Torres took her to a secluded place on the property, removed her clothes, and then held her wrists down while he molested her. The experience was painful, and as C. described, she tried to get away, "but I couldn't because he was on top of me" and "[h]is hands were on my wrists."
Torres's act of restraining C. by placing his hands on C.'s wrists and using his body weight while she tried to get away constitutes force substantially different from or substantially greater than that necessary to accomplish the lewd acts themselves, and thus the evidence is sufficient to support a conviction under section 288, subdivision (b)(1) for counts 13, 14 and 15. (See Alvarez, supra, 178 Cal.App.4th at p. 1005 [force within the meaning of § 288, subd. (b)(1) was present when the defendant resisted the victim's attempts to push him away while he was kissing her, held the victim " 'tight' " and " 'hard' " while digitally penetrating her, and on another occasion, prevented her from leaving while he kissed her and digitally penetrated her]; People v. Stark (1989) 213 Cal.App.3d 107, 112 (Stark)[lewd act was accomplished by force in case involving "an adult male lying on top of a nine-year-old boy, who was rendered unable to move away because of the weight of the adult on top of him" and "[t]he adult ignored the boy's request to get off of him and to stop fondling him].)
b. Counts 16 and 17
As described in the information and the prosecutor's closing argument, count 16 is an incident of oral copulation that occurred during the summer when C. was eight years old and Torres had recently begun to molest her. Count 17 is an incident of digital penetration that occurred during that same time frame.
C. did not provide details regarding these incidents during her testimony. Instead, she testified generally, "I could estimate at least that first summer he had sex with me 20 to 30 times," and she answered affirmatively when asked whether it was "painful all 20 to 30 times," explaining that during the early incidents of sexual intercourse it felt like he was "ripping [her] open." The prosecutor elicited specific testimony from C. describing a different incident that same summer, charged in counts 19 and 20 under section 288, subdivision (a), during which Torres molested C. in her mother's Mustang automobile. However, the prosecutor did not ask C. about the details of any of the other lewd acts that occurred during the same time period, such as those charged in counts 16 and 17. C. made no general statement about the force or restraint that Torres used in those 20 to 30 incidents or whether she tried to get away from him.
In light of the complete absence of any detail about Torres's conduct underlying counts 16 and 17, we conclude that insufficient evidence supports a finding that those acts were accomplished with force substantially different from or substantially greater than that necessary to accomplish the lewd acts themselves.
Because of the lack of detail about the lewd acts at issue, the record also does not contain substantial evidence to support any of the other aggravating circumstances set forth in section 288, subdivision (b)(1), namely that the lewd acts were accomplished "by use of . . . violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (Ibid.)
"[A]n appellate court may reduce a conviction to a lesser included offense if the evidence supports the lesser included offense but not the charged offense." (People v. Howard (2002) 100 Cal.App.4th 94, 99.) Here, there is no dispute that for counts 16 and 17 the evidence supports a conviction on the lesser included offense of lewd acts on a child under section 288, subdivision (a). Indeed, defense counsel stated at trial that "Mr. Torres should be convicted of [section 288, subdivision (a)] on these counts" and requested that the trial court "only find him guilty of the lesser included offenses on those counts." We therefore will modify the judgment on counts 16 and 17 to reflect a conviction on the lesser included offense of lewd acts on a child in violation of section 288, subdivision (a).
c. Counts 25 and 30
Counts 25 and 30 involve anal penetration on two different dates.
C. testified that during the first anal penetration incident, Torres positioned her "doggie style" and pushed his penis into her anus. It was painful, and she could not get away because he put his hands along her ribs and pulled her toward him. As C. described the second anal penetration incident, Torres placed her in the same position as the first incident and placed his penis in her anus. She cried and begged him to stop, but she couldn't get away because he was grabbing her with his hands and he was on top of her.
We conclude that C.'s testimony supports a finding that Torres accomplished the acts charged in counts 25 and 30 with force substantially greater than that necessary to accomplish the lewd acts themselves. Specifically, Torres restrained C. by grabbing her, pulling her toward him, and using his body weight to prevent her from leaving. That conduct constitutes force within the meaning of section 228, subdivision (b)(1). (See Bolander, supra, 23 Cal.App.4th at pp. 160-161 [defendant used force during anal penetration incident when, after the victim tried to pull up his pants, he made the victim bend over and then pulled the victim's waist towards him].)
4. Counts Depicted on the Videotapes
The final two counts of forcible lewd acts are those depicted on the videotapes.
a. Count 4
Count 4 involves the final act of sexual intercourse that appears in the first videotaped scene. During most of the videotaped scene Torres used no additional force on C., and C. put up no resistance to Torres's conduct, as it is evident from the videotape that Torres paid C. for her participation. However, during the final act of sexual intercourse, Torres pushed against C. in a manner that caused pain to her, and she told him to stop as she tried to squirm away from him. Torres did not stop, but instead he used his hands and body weight to keep C. in place and allow him to continue with the sexual intercourse until ejaculation. Under these circumstances, Torres used substantially more force that was necessary to accomplish the lewd act of sexual intercourse, and therefore substantial evidence supports a finding on count 4 that Torres committed a forcible lewd. (People v. Bergschneider (1989) 211 Cal.App.3d 144, 154 (Bergschneider) [defendant used force when he prevented the victim from pushing his head away from her during oral copulation]; Stark, supra, 213 Cal.App.3d at p. 112 [defendant used force when he ignored the victim's request to get off of him and he used his body weight to restrain the victim].)
b. Count 8
Count 8 involves the final act of sexual intercourse depicted in the second videotaped scene. The circumstances of the second videotaped scene appear to be very similar to the first videotaped scene we have described. Torres paid C. to participate, and she generally did not resist his lewd acts. However, similar to count 4, during the final act of sexual intercourse depicted in the second video scene, Torres forcefully pushed against C. in a manner that caused her pain. She stated that she was in pain and told Torres to stop while she tried to move away from him, but he used his hands and his body weight to restrain C. while he continued with the sexual intercourse. Therefore, as was the case with count 4, substantial evidence supports a finding on count 8 that Torres used substantially more force than necessary to accomplish the lewd act in violation of section 288, subdivision (b)(1). (See Bergschneider, supra, 211 Cal.App.3d at p. 154; Stark, supra, 213 Cal.App.3d at p. 112.) B. Torres's Challenge to the Imposition of Consecutive Full-term Sentences for Certain of the Forcible Lewd Act Counts
We next consider Torres's argument that the trial court erred in imposing mandatory full-term concurrent sentences on some of the forcible lewd act counts.
1. Applicable Law
Section 667.6 provides that for certain specified sex crimes, including the commission of a forcible lewd act in violation of section 288, subdivision (b), "[a] full, separate, and consecutive term shall be imposed for each violation . . . if the crime[] involve[s] . . . the same victim on separate occasions." (§ 667.6, subd. (d).) According to the statute, "[i]n determining whether crimes against a single victim were committed on separate occasions . . . , the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (Ibid.)
Case law has provided additional clarification that separate occasions of sexual assault may take place during the same encounter, as long as the evidence supports a finding that the defendant has a reasonable opportunity to reflect and then resumes his actions. As our Supreme Court stated in People v. Jones (2001) 25 Cal.4th 98, 104, "[u]nder the broad standard established by . . . section 667.6, subdivision (d), the Courts of Appeal have not required a break of any specific duration or any change in physical location" for a finding that sexual assaults occurring during a continuous encounter with a victim constituted separate occasions. Thus, for example, People v. Irvin (1996) 43 Cal.App.4th 1063, 1070 (Irvin)stated that "a finding of 'separate occasions' " does not "require[] a change of location or an obvious break in a perpetrator's behavior." Similarly, People v. Plaza (1995) 41 Cal.App.4th 377 concluded that three counts of forcible oral copulation, one count of rape and one count of forcible vaginal penetration with a foreign object that all occurred during the same encounter in the victim's apartment, with no break in the defendant's control over the victim, were all separate occasions for the purposes of section 667.6. (Plaza, at pp. 381, 385.) Each case depends on unique facts, however, and in some contexts courts have concluded that the evidence did not support a finding that the defendant had a reasonable opportunity to reflect between sex acts that were committed in quick succession. (People v. Pena (1992) 7 Cal.App.4th 1294, 1316 (Pena); People v. Corona (1988) 206 Cal.App.3d 13, 18 (Corona).)
Here, the trial court determined that each of Torres's forcible lewd acts were committed on separate occasions and that imposition of a full-term consecutive sentence was therefore mandatory for each of those counts under section 667.6, subdivision (d).
Had the trial court determined that the forcible lewd acts did not occur on separate occasions, it still could have exercised its discretion to impose full-term concurrent sentences pursuant to section 667.6, subdivision (c), which provides that "a full, separate, and consecutive term may be imposed for each violation of [specified sex crime statutes] if the crimes involve the same victim on the same occasion." (Italics added.)
Torres contends that for some of the counts, insufficient evidence supports a finding that they were committed on separate occasions within the meaning of section 667.6, subdivision (d). Specifically, he argues that counts 4 and 8 were committed on the same occasion; counts 13, 14 and 15 were committed on the same occasion; and counts 16 and 17 were committed on the same occasion.
"Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
We therefore proceed to consider each separate group of counts that Torres contends occurred on the same occasion to determine if a reasonable trier of fact could have concluded that Torres had a reasonable opportunity for reflection between his completion of the lewd act comprising an initial count and his commission of the lewd act comprising the next count.
Because we have modified the convictions on counts 16 and 17, they are no longer convictions for forcible lewd acts subject to sentencing under section 667.6. Therefore, we need not, and do not, discuss whether the evidence supports a finding that counts 16 and 17 involved separate occasions.
2. The Evidence Supports a Determination That Counts 4 and 8 Involve Separate Occasions
Counts 4 and 8 are two instances of sexual intercourse depicted on the videotapes. It is apparent from the videotapes that these two acts occurred at different times and on different days. Specifically, they were filmed in different rooms, and C. is wearing different clothes at the beginning of each incident. Because the two counts obviously occurred on different occasions in different locations, a reasonable trier of fact could conclude that Torres had a reasonable opportunity for reflection between them.
3. The Evidence Does Not Support a Determination That Counts 13, 14 and 15 Involve Separate Occasions
Counts 13, 14 and 15 are acts of oral copulation, digital penetration and sexual intercourse that occurred one after another on the same day in the same location. As C. described this incident, "He took off my clothes, placed a comforter down. He got me fully naked. He himself was naked. He had me lay down on my back, and he began sucking my breasts, licking my body with his tongue down my stomach, my legs. He then began having oral sex with me . . . . [¶] . . . And then after that, he would stick his fingers inside me, inside my vagina. And after he was done, he would stick his penis inside me." She also stated it was painful and she tried to get away, "but I couldn't because he was on top of me" and holding her wrists. Apart from these statements, C. provided no more details about the incident.
Because of the absence of specific evidence about the duration of the incident comprising counts 13, 14 and 15, and Torres's additional actions, if any, between the oral copulation, digital penetration and sexual intercourse, the evidence presented at trial was not sufficient for a reasonable trier of fact to conclude that Torres had a reasonable opportunity to reflect between the three lewd acts. (See Pena, supra, 7 Cal.App.4th at p. 1316 [defendant "did not have a 'reasonable opportunity to reflect' between his acts of rape and forcible oral copulation" when "nothing in the record . . . indicates any appreciable interval 'between' the rape and oral copulation" and "[a]fter the rape, [defendant] simply flipped the victim over and orally copulated her"]; Corona, supra, 206 Cal.App.3d at p. 18 [agreeing with the People's concession that the defendant did not have an opportunity to reflect between acts of oral copulation, digital penetration and sexual intercourse because there was no cessation of sexually assaultive behavior between the acts].) Therefore, the trial court erred in concluding that counts 13, 14 and 15 were subject to a mandatory full-term consecutive sentence under section 667.6, subdivision (d). We accordingly vacate the sentence imposed in this matter, and we remand for the trial court to resentence Torres in a manner consistent with this opinion.
Although we have concluded that a full-term consecutive sentence is not mandatory under section 667.6, subdivision (d) for counts 13, 14 and 15, upon resentencing the trial court may choose to exercise its discretion under section 667.6, subdivision (c) to impose such a sentence for those counts.
Further, because we are remanding this case for resentencing, we need, and do not, reach two other issues raised by Torres. First, we do not address Torres's contention that the trial court's decision to sentence the forcible lewd act counts under section 667.6, subdivision (d) should be vacated on the ground that the trial court did not give an adequate factual explanation supporting its finding that each separate count constituted a separate occasion. (See Irvin, supra, 43 Cal.App.4th at p. 1072 ["[I]f the court decides to resentence defendant under [section 667.6,] subdivision (d), it must give a factual explanation supporting its finding of 'separate occasions' for each count sentenced under that subdivision. An overall statement of the court's general impression of the evidence is insufficient."].) Second, we do not address Torres's contention that the trial court abused its discretion by imposing consecutive sentences for the nonforcible lewd acts based on its conclusion that "they're separate acts, separate attacks, separate opportunity to reflect, and I think as a result should be run consecutively."
DISPOSITION
As to counts 16 and 17, the judgment is modified to reflect convictions on the lesser included offense of nonforcible lewd acts on a child in violation of section 288, subdivision (a). The sentence is vacated, and this matter is remanded for resentencing.
_____
IRION, J.
WE CONCUR:
_______________
BENKE, Acting P. J.
__________
MCINTYRE, J.