Opinion
G054069
11-17-2017
THE PEOPLE, Plaintiff and Respondent, v. RAMON VALLEJO, Defendant and Appellant.
Allison H. Ting, 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, Scott C. Taylor and Charles C. Ragland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF0926) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Allison H. Ting, 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, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ramon Vallejo (defendant) of five counts of forcible lewd acts with a child under age 14 (Pen. Code, §§ 288, subd. (b)(1); three counts of forcible sexual penetration with a foreign object of a child (§ 289, subd. (a)(1)(C)); one count of forcible rape (§ 261, subd. (a)(2)); one count of assault with intent to commit a lewd act on a child perpetrated during a first degree burglary (§ 220, subd. (b)); and one count of nonforcible lewd acts on a child under age 14 (§ 288, subd. (a)).
All further statutory references are to the Penal Code, unless otherwise stated.
The jury found true allegations defendant committed these sex offenses against multiple victims pursuant to the "One Strike" law. (§ 667.61.) Consequently, the court sentenced defendant to a total of 250 years to life, consisting of 10 consecutive, indeterminate terms of 25 years to life, plus a consecutive term of seven years to life.
Defendant's sole challenge on appeal is to the sufficiency of the evidence to support his conviction on the one count of nonforcible lewd act on a child under age 14. We conclude substantial evidence supports the verdict and affirm the judgment.
FACTS
In 2012, then 12-year-old E.Z., lived with her mother, M.B. (mother), her stepfather, her then 10-year-old sister, F.Z., and her two infant brothers in an apartment in Anaheim. Defendant, who was then 44 years old, had been married to mother's sister, but the couple separated and defendant moved in with mother's family. E.Z. and F.Z. considered defendant to be their uncle.
One night at around 9:00 p.m., E.Z. went into the kitchen to prepare bottles for her infant brothers. E.Z. saw defendant stare at her as she walked through the living room. After she prepared the bottles, E.Z. walked out of the kitchen and into the living room. Defendant told E.Z. to come to him, but E.Z. stood still. Defendant walked over to E.Z. and he repeatedly kissed E.Z.'s neck in a way he had never done before. E.Z. froze because she did not think defendant should do this. When defendant stopped kissing E.Z., she walked away. E.Z. never told anyone about the incident because she was afraid of defendant.
Defendant also once squeezed between E.Z. and a wall while she was feeding one of her brothers. E.Z. felt defendant's penis push against her back. E.Z. turned around really fast and defendant "just took off." E.Z. said defendant had an "evil" look on his face, and she did not think the contact had been accidental, but she did not tell anyone.
Two years later, after mother and her family moved to another apartment complex in Anaheim, defendant moved into his son and daughter-in-law's apartment, which was in the same complex. Defendant slept at his son's apartment, but he went to mother's apartment every day to eat or watch television.
One day, F.Z., now 12 years old, went to defendant's apartment on an errand for mother. When she went inside, F.Z. found defendant alone in the apartment. He put his hand down her shirt and touched one of her breasts under her bra. F.Z. told defendant to stop, but he said no and continued to touch her breast. F.Z. wanted to leave the apartment, but defendant blocked her escape and said she had to stay. When defendant stopped touching F.Z., he told her not to tell mother what happened because mother would not believe her. F.Z. did not tell anyone about the incident because she thought she would get into trouble.
Defendant touched F.Z. several more times during the year. He touched her breasts more than 10 times. Defendant touched F.Z. when they were alone in his apartment, or in the apartment complex's laundry room. F.Z. objected, but defendant did not stop. He also warned F.Z. not to tell anyone what they were doing because they would both go to jail and her family would stop talking to her. F.Z. was scared and did not tell anyone.
After F.Z. turned 13, defendant touched F.Z.'s breast and her vagina more than 10 times. Defendant also put his mouth on F.Z.'s breasts and his fingers inside her vagina. F.Z. told defendant his fingers hurt her and she wanted him to stop, but defendant said no and continued. Defendant sometimes held F.Z.'s wrists when he reached into her pants. Defendant also forced her to touch his erect penis. Defendant warned F.Z. not to tell anyone, and she was too scared to report him. Defendant forced F.Z. to watch a video of naked adults.
When F.Z. turned 15 years old, defendant caught her alone in her bedroom one day. He came into F.Z.'s room through a backyard sliding door, removed her clothing, pushed her onto the bed, held up her legs, and put his penis in her vagina. F.Z. told defendant to stop, but he threatened to kill mother and continued. When F.Z. said she heard mother coming down the hall, defendant fled out the sliding door.
Two weeks later, F.Z. attended a church youth group meeting, and she disclosed defendant's sexual abuse to her youth pastor and his wife. The youth pastor drove F.Z. home to tell her parents, and her parents called the police.
The following day, police officers arranged a recorded pretext phone call between F.Z. and defendant. During the call, defendant said he liked touching F.Z., and he wanted to have sex with her. He even offered to use a condom in the future.
Defendant was arrested the same day. Following a Miranda (Miranda v. Arizona (1966) 384 U.S. 436) advisement, defendant admitted he saw F.Z. "as a woman," and he was attracted to her. Defendant admitted touching F.Z.'s breasts, buttocks, and vagina, and penetrating her vagina with his penis, and he knew it was illegal.
Defendant also admitted kissing E.Z. and grabbing or touching her, and he admitted it was wrong.
At trial, psychologist Jody Ward testified as an expert on Child Sexual Abuse Accommodation (CSAA) Syndrome. She said CSAA is a pattern of behaviors exhibited by many children who are abused in ongoing relationships as opposed to an encounter with a stranger. CSAA is not a diagnostic tool, but a way to understand a child's reactions to abuse.
CSAA has several stages with patterns of behavior. In the first stage, children keep sexual abuse secret for long periods of time, even without reminders or threats. The second stage leads to feelings of helplessness because they have been taught to obey authority figures or to give affection to adults with whom they are not comfortable.
In the third stage, children come to feel trapped and they accommodate the abuser to receive positive benefits from the relationship, to protect siblings, or to keep the family intact. Ward pointed out that children are taught about good touching versus bad touching, but they are not taught that most abusers are family members or friends. However, neither adults nor children are prepared to deal with how sexual abuse occurs. Quite often, the child seems to accommodate the perpetrator and acquiesce to his or her demands. Accommodation and acquiescence are part of a power dynamic. Because the child cannot escape the relationship, the child goes along and deals with it in other ways.
The fourth stage is delayed disclosure. Two-thirds of sexually abused children do not report the abuse until adulthood, and many never do. Those who report can be very hesitant. They are unlikely to try to report the abuse unless shown some positive reaction. Delayed disclosure is common in CSAA.
In the fifth stage, the child will backpedal on allegations of sexual abuse in the face of intrusive interviews or family breakups, and the child may minimize the abuse.
Ward admitted not all five stages of the CSAA are present in all cases, but she emphasized that secrecy and helplessness are always apparent.
DISCUSSION
For his conduct with E.Z., defendant was charged with violating section 288, subdivision (a), which makes it a felony to touch the body of a child under 14 "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . ." A "[v]iolation of section 288, subdivision (a) requires the specific intent of arousing the sexual desires of either the perpetrator or the victim. [Citations.]" (In re Jerry M. (1997) 59 Cal.App.4th 289, 299 (Jerry M.).)
Defendant asserts the prosecution failed to prove he touched E.Z. with the specific intent of arousing his sexual desires. We disagree.
When considering a challenge to the sufficiency of the evidence, this court must "review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Ibid.)
Intent is rarely proved by direct evidence, but it may be inferred from the circumstances. "Circumstances which have been considered relevant to proving intent to satisfy sexual desires include: the charged act, extrajudicial statements, the relationship of the parties, other acts of lewd conduct, coercion or deceit used to obtain the victim's cooperation, attempts to avoid detection, offering of a reward for cooperation, a stealthy approach to the victim, admonishment of the victim not to disclose the occurrence, physical evidence of sexual arousal and clandestine meetings. [Citations.]" (In re Jerry M., supra, 59 Cal.App.4th at pp. 299.)
The court instructed the jury on the elements of section 288, subdivision (a) using CALCRIM No. 1110. In pertinent part, this instruction told the jury a conviction under the statute must be based on evidence "[t]he defendant willfully touched any part of a child's body either on the bare skin or through the clothing," and "the defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child[.]" --------
In this case, substantial evidence supports the jury's verdict. Defendant took advantage of his close relationship with mother, and his living arrangements, to sexually abuse F.Z. and E.Z. over a period of a few years. With his first encounter with E.Z., defendant caught her alone in the living room and repeatedly kissed her neck. E.Z. said she froze, and defendant's kisses did not feel normal or appropriate. Defendant and E.Z. were also alone when defendant pressed his penis against E.Z.'s body. E.Z. said the look on defendant's face made her believe the touching was not accidental.
After his arrest, defendant admitted his conduct to police and he understood it was "wrong." Defendant's extrajudicial admission, the ongoing relationship between defendant and E.Z., his use of coercion and secrecy, all support an inference defendant touched E.Z. for his sexual gratification.
Defendant cites cases with evidence of "indisputably crude physical conduct" by other defendants in an effort to show the evidence in his case is lacking, but this comparison is not persuasive. When an appellate court "decide[s] issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts." (People v. Thomas (1992) 2 Cal.4th 489, 516.) We do not review the evidence by "focusing on evidence that did not exist rather than on the evidence that did exist." (People v. Story (2009) 45 Cal.4th 1282, 1299.)
Defendant also argues the omission of instructions explaining how to handle other crimes, or propensity evidence (Evid. Code, §§ 1101, 1103, or 1108) precluded the jury from considering defendant's crimes against F.Z. as evidence to prove his intent with respect to E.Z., and he cites a number of cases for the proposition.
However, in each of defendant's cited cases, the court considered what to do when the prosecution presents its case on alternate theories, at least one of those theories had been legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested. (People v. Harris (1994) 9 Cal.4th 407, 426; People v. Beaver (2010), 186 Cal.App.4th 107, 123; Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316; People v. Curtin (1994) 22 Cal.App.4th 528, 531; People v. Moses (1990) 217 Cal.App.3d 1245, 1252; People v. Green (1980) 27 Cal.3d 1, 67, abrogated by People v. Martinez (1999) 20 Cal.4th 225.) None of these cases addresses the jury's consideration of other crimes, or propensity evidence, during trial.
Moreover, in this case, the court fully instructed the jury on what is considered to be evidence (CALCRIM No. 222), the difference between direct and circumstantial evidence (CALCRIM No. 223), the requirement any reasonable inference of innocence take precedent over an inference of guilt (CALCRIM No. 224), and how the jury should consider circumstantial evidence when determining intent (CALCRIM No. 225). These instructions ensured the jury understood the burden of proof with respect to circumstantial evidence of defendant's specific intent.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.