Opinion
A170475
11-19-2024
THE PEOPLE, Plaintiff and Respondent, v. RUFINO LOPEZ VASQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Mendocino County Super. Ct. No. 23CR02353)
CHOU, J.
Defendant Rufino Lopez Vasquez appeals a final judgment following a jury trial in which he was convicted of multiple sex crimes against his niece, who was 14 years old at the time of the offenses. The trial court sentenced him to an aggregate term of 16 years, 8 months in state prison. Lopez Vasquez contends that remand for resentencing is required because the court should have stayed the sentence for one of his convictions pursuant to Penal Code section 654. He further contends that the court erred in imposing a full consecutive sentence on his attempted rape conviction because it was not allowed under section 667.6. We disagree with Lopez Vasquez on his first argument but agree with his second argument. We therefore reverse in part.
All further statutory references are to the Penal Code.
I. BACKGROUND
A. Procedural History
In December 2023, an information was filed charging Lopez Vasquez with: (1) forcible rape of a minor 14 years or older (§§ 261, subd. (a)(2)/264, subd. (c)(2); counts 1, 2, and 3); (2) forcible oral copulation (§ 287, subd. (c)(2)(C); count 4); (3) offering to distribute harmful material to a minor (§ 288.2, subd. (a)(2); counts 5 and 6); and (4) contacting a minor with intent to commit a sexual offense as specified in section 261 (§ 288.3, subd. (a); count 7). The information further alleged various aggravating factors. The trial court subsequently dismissed count 4 based on Lopez Vasquez's section 1118.1 motion and allowed the prosecution to amend count 7 to charge him with committing a lewd or lascivious act in violation of section 288, subdivision (a).
Following trial, the jury found Lopez Vasquez guilty of counts 1, 5, 6, and 7. On counts 2 and 3, the jury found him guilty of the lesser-included offense of attempted rape. Lopez Vasquez waived a jury trial as to the determination of the aggravating factors, and the trial court found true two of the factors-that the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)) and that Lopez Vasquez took advantage of a position of trust (id., rule 4.421(a)(11)).
The trial court sentenced Lopez Vasquez to a total term of 16 years, 8 months in state prison, consisting of nine years (the full-midterm) on count 1; four years, six months (the full-midterm) on count 2; one year, six months on count 3, eight months each on counts 5 and 6, and four months on count 7. All counts were imposed consecutive to one another. The court awarded him 249 days of custody credits. Lopez Vasquez timely appealed.
B. Trial Testimony
S.J. was born in July 2008 and lived with her grandparents until she was 14 years old. Lopez Vasquez is her uncle. S.J. testified that when she was seven or eight years old, she was riding a four-wheeler with Lopez Vasquez. As she was riding, he grabbed her hand and put it on his penis, over his clothing. He told her that if she "squeezed it, the . . . four-wheeler would go faster." When S.J. was nine or ten years old, she recalled playing hide-and-seek with her cousins and was inside a barn with Lopez Vasquez at one point. She testified that she felt scared and that he raped her. When S.J. was 14 years old, her grandparents were having issues with her and sent her to live with Lopez Vasquez and his wife (S.J.'s maternal aunt) for a week or two. S.J. did not want to go and begged her grandmother to let her come home.
During her stay at Lopez Vasquez's home, S.J. slept downstairs in her cousins' room while her cousins, aunt, and Lopez Vasquez slept upstairs. The first few nights were uneventful, though S.J. cried because she did not want to be there. However, one night around 2:00 or 3:00 a.m., Lopez Vasquez came into her room. S.J. was scared and wrapped a blanket around herself. Lopez Vasquez told her to undo the blanket and tried to get on the bed. He pulled her blanket off and attempted to pull her pants down. She pulled them back up and told him to stop, and he left the room. On another night, he came in and was able to pull S.J.'s pants down. He touched her "private parts" with his hands and tried to put his penis in her vagina. S.J. tried to push Lopez Vasquez off her and told him that she would tell her aunt. He stopped and left the room. On a third night, Lopez Vasquez put a condom on and tried to put his penis in her vagina. When asked whether he was able to, S.J. replied, "Not fully."
Both before and after S.J.'s stay, Lopez Vasquez texted her photos of his penis. She told him to stop but he continued sending photos to her. After returning to her grandparents' home, S.J. told her grandfather that Lopez Vasquez had sexually molested her. Her grandmother, Donna, was shocked when she found out later that night and spoke with S.J. about it. Donna took S.J.'s tablet (which was connected to her phone) and decided to "bait" Lopez Vasquez by texting him, pretending to be S.J. He responded by asking her to send a picture, and then sent a photo of his penis. After seeing this, Donna left work and took S.J. to the sheriff's office. Once there, S.J. gave her phone and tablet to Detective Samuel Logan.
After interviewing S.J., Detective Logan initiated a pretext conversation with Lopez Vasquez, using S.J.'s phone. During the text exchange, Logan asked Lopez Vasquez if he wanted to put his penis or mouth "in the place like he did before," and he responded, yes. At one point, Lopez Vasquez stated that he would answer more questions if S.J. would" 'let [him] see it' "-referring to her genitals. Logan asked if Lopez Vasquez was asking for pictures because he wanted to have sex with S.J., and he answered yes.
Logan sent a generic photo of a woman's crotch to Lopez Vasquez and he responded by sending a photo of his penis. Several minutes later, Logan texted the photo of Lopez Vasquez's penis back to him and asked," 'Would you put this inside of me again like you did last time?'" Lopez Vasquez responded yes. The police arrested Lopez Vasquez this same day and transported him to the sheriff's office for questioning. During his interview, Lopez Vasquez admitted that he sent photos of his penis to S.J. but repeatedly denied ever having sex with her.
Dr. Mindy Mechanic, an expert in trauma and the impact of sexual trauma on child victims, testified that most child victims of sexual assault crimes do not immediately report or disclose the assault, especially if the offender is someone they know or trust. She further testified that if a victim cannot escape a dangerous or traumatic situation, they may engage in a "freeze response" and disassociate from what is happening. This, in turn, can affect their memory and ability to recall events in the correct chronological order.
II. DISCUSSION
A. Whether Section 654 Applies to Counts 6 and 7
Lopez Vasquez contends that his sentence on either count 6 (distributing harmful material to a minor) or count 7 (contacting a minor with the intent to commit a lewd act) should have been stayed pursuant to section 654. He argues that both counts were based on the same conduct- the second text he sent during the pretext exchange that included a photo of his penis and a statement regarding his intent to commit a lewd act. We disagree.
"An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Put another way, section 654 precludes multiple punishment for "a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor." (People v. Perez (1979) 23 Cal.3d 545, 551.)
In the unique context of sex crimes, "multiple sex acts committed on a single occasion can result in multiple statutory violations. Such offenses are generally 'divisible' from one another under section 654, and separate punishment is usually allowed." (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6.) "Even where the defendant has but one objective-sexual gratification-section 654 will not apply unless the crimes were either incidental to or the means by which another crime was accomplished." (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006 (Alvarez).) This renders section 654 "of limited utility to defendants who commit multiple sex crimes against a single victim on a single occasion." (Ibid.)
"Whether a defendant harbored a separate intent and objective for each offense is a factual determination for the trial court, and its conclusion will be sustained on appeal if supported by substantial evidence." (People v. Hicks (2017) 17 Cal.App.5th 496, 514-515,) And we review the evidence in the light most favorable to the judgment. (Id. at p. 515.)
Here, there is substantial evidence that the acts underlying counts 6 and 7 were divisible and that one act was not incidental to the other act or the means by which the other act was accomplished. Count 6 was based on the photo of his penis that Lopez Vasquez sent to S.J.'s phone during the pretext conversation with Detective Logan. Count 7 was based on a text exchange that occurred several minutes later in which Logan sent the photo of Lopez Vasquez's penis back to him and asked if he would" 'put this inside of [her] like [he] did last time.'" Lopez Vasquez responded" '[y]es.'" Although the two counts involved back and forth texts of the same photo, we disagree with Lopez Vasquez that "the photo was an integral part of [his] intent to commit a sexual offense." Sending the photo and communicating his intent to commit a lewd act through the words in his text were separate and distinct acts that are divisible from one another. Neither act was incidental to the other or necessary to accomplish the other. (See Alvarez, supra, 178 Cal.App.4th at p. 1006.) Indeed, Detective Logan likely could have used a different photo or prompt to elicit a similar response from Lopez Vasquez, evidencing his intent to commit a lewd act against S.J. Section 654 therefore does not apply to counts 6 and 7.
B. Whether a Full Consecutive Sentence on Count 2 Was Proper
Lopez Vasquez next contends that pursuant to section 667.6, the trial court erred in sentencing him to a full term of four years six months on count 2 (attempted rape) and then running that term consecutive to the nine-year term on count 1 (rape). We agree and remand the matter for resentencing.
At sentencing, the trial court held that it would, in its discretion, designate count 2 as the principal term instead of count 1 and impose full consecutive sentences as to both counts.
Section 667.6, subdivision (c) applies to certain sex offenses and states, in pertinent part, that "a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e)." (Italics added.) Rape is one of the enumerated offenses. (§ 667.6, subd. (e)(1).) Nonetheless, this section is inapplicable here because Lopez Vasquez's rape and attempted rape offenses did not occur on the same occasion. Instead, he committed them on different nights during S.J.'s weeklong stay at his home. Citing People v. Thomas (1990) 218 Cal.App.3d 1477, the People argue that section 667.6, subdivision (c) allows the trial court to impose two consecutive full terms for the rape and attempted rape convictions"' "whether or not the crimes were committed during a single transaction." '" But, as Lopez Vasquez points out, section 667.6 no longer contains the relevant language that Thomas construed more than 30 years ago.
We also agree that section 667.6, subdivision (d) does not apply. That subdivision provides that "[a] full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions." (§ 667.6, subd. (d)(1).) But, unlike subdivision (c), this subdivision "applies only when a defendant stands convicted of more than one offense specified in subdivision (e)." (People v. Goodliffe (2009) 177 Cal.App.4th 723, 727, fn. 10, italics added.) The People concede that attempted rape is not specified in subdivision (e). Thus, Lopez Vasquez was only convicted of one offense specified in that subdivision: rape. The trial court therefore erred in sentencing him to full consecutive terms on counts 1 and 2.
III. DISPOSITION
The judgment is reversed in part and the matter is remanded for resentencing as to counts 1 and 2. In all other respects, the judgment is affirmed.
We concur. SIMONS, P. J. BURNS, J.