Opinion
G053487
12-01-2017
THE PEOPLE, Plaintiff and Respondent, v. IDALIO BERNARDO VILLAGRAN, Defendant and Appellant.
Jason L. Jones, 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, Peter Quon, Jr., and Stacy Tyler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13HF3029) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed in part and reversed in part with directions. Jason L. Jones, 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, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Idalio Bernardo Villagran of five counts of lewd acts on a child under age 14 (Pen. Code, § 288, subd. (a); all statutory citations are to the Penal Code). The jury also found he committed the offenses against more than one victim (§ 667.61, subd. (b), (e)(5) [counts 1-5]) and engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8) [counts 2 & 4]). Villagran contends we must reverse his conviction for lewd acts charged in count 5 because the touching underlying count 4 merely facilitated the touching underlying count 5 and did not constitute a separate and distinct act to achieve sexual gratification. He also argues the trial court erred in imposing a term of 15 years to life for count 5 because at the time he committed the offenses, section 667.61 did not authorize multiple life terms for acts committed against a single victim on a single occasion. We conclude the jury did not err in convicting Villagran of two counts of lewd acts against A.B. because the record reasonably supports an inference Villagran sought sexual gratification by first touching her, and then sodomizing her. We accept the Attorney General's concession section 667.61 did not authorize separate life terms for multiple acts against a single victim on a single occasion. We affirm the convictions, but reverse the sentence on count 5 and remand for resentencing on that count.
I
FACTUAL AND PROCEDURAL BACKGROUND
Villagran's niece, A.B., age 20 at trial in February 2016, testified Villagran molested her on one occasion when she was seven years old. She spent a summer night at Villagran's home after a day of swimming with her cousins. The next morning, Villagran told her to lie on the bed and watch television with him and the cousins before they went back to the pool. A.B. lay on her side under the covers, between Villagran's daughter, E.V., and Villagran, who lay behind A.B. Villagran lifted A.B.'s pink nightgown and grabbed her thigh. He then moved her underwear aside and put his penis in her "butt," which was painful. The incident lasted "[s]everal minutes," but his penis was not inside her very long. She went to the bathroom and it "hurt to go poop." She told Villagran about the pain after Villagran's wife came home, and Villagran told A.B., "Shhh, don't say anything." She stopped going to Villagran's home after the incident. A.B. disclosed the incident years later after learning Villagran also had abused E.V.
E.V., age 18 at trial, testified Villagran, her father, touched her sexually on more than one occasion when she was between five and eight years old while her mother was at work. On one occasion, he touched her chest and genital area over her clothing. Another incident occurred when he rubbed her chest and touched her vaginal area, moving his hand around and "trying to put his fingers inside of" her. He stopped when she told him it hurt. On another occasion Villagran said he would rub her injured leg, but he "kept touching" her "in other places," including her vagina and chest. Villagran molested her again when they lived with other family members in a different city. While watching a movie while lying in bed with Villagran, he rubbed his penis against her back and attempted "to put it inside of" her butt and his penis touched her vagina. She recalled him saying something like "the world is ugly and I'm preparing you for it."
E.V. first disclosed the abuse to her aunt, A.B.'s mother, when she was 16 and had moved in with the aunt's family. She subsequently spoke to a law enforcement officer and an interviewer with Child Abuse Services Team (CAST). She mentioned the abuse to another cousin, E.A., the day before her CAST interview. E.A. mentioned Villagran had touched her too.
E.A., age 19 at trial, testified Villagran touched her inappropriately when she was around nine years old. She, E.V., and Villagran were watching a movie in Villagran's bedroom at the house the families shared. Villagran directed E.A. to lie down on the bed with E.V. and him. When she complied, he unbuttoned her pants, pulled down his pants, and put his hand under her underwear and moved his hand on her vagina. She did not say anything because she did not want to scare E.V. Villagran later told E.A. not to tell anyone. She and E.V. discussed the molestations at some point and shared a hug.
Orange County Sheriff's investigators surreptitiously recorded a conversation between Villagran and his wife before interviewing him. Villagran admitted molesting their daughter, he apologized for his mistake, and worried he would go to jail. He insisted he "didn't cause harm."
In a later interview with investigators, Villagran admitted molesting E.V. a "long time ago" when E.V. was seven or eight years old. He initially defined molestation as "[j]ust feel[ing] her" on the vagina under her clothes. He admitted often touching her clitoris and that his fingers penetrated her vagina. He also admitted putting his "penis in her vagina," but "[i]t was like once." It did not go "all the way in, it was just a little bit," and he pulled out immediately. These incidents occurred on his bed while his wife was at work. He explained he "wanted to show [E.V.] the world" so that she would "know everything" and "know what to do." He also showed her "porn" on cable because he wanted to "teach her . . . [and] to know everything." Villagran also admitted rubbing A.B. and E.A. on the vagina skin-to-skin.
Following trial in February 2016, the jury convicted Villagran as noted above. In April 2016, the trial court imposed a sentence of 60 years to life, comprised of four consecutive terms of 15 years to life for counts 1 through 4. The court also imposed and stayed (§ 654) a concurrent term of 15 years to life for count 5.
II
DISCUSSION
A. Multiple Convictions Involving A.B.
The information charged Villagran with committing two lewd act offenses (counts 4 and 5) against A.B. occurring between A.B.'s sixth birthday in 2002 and December 31, 2006. As noted above, A.B. testified Villagran molested her on one occasion in the summer when she was seven years old. While A.B. was lying on her side on the bed between E.V. and Villagran Villagran lifted A.B.'s nightgown and grabbed her thigh. He then moved her underwear aside and put his penis in her "butt," which was painful. The incident lasted "several minutes," but his penis was not inside her very long. During his interview with the investigators, Villagran admitted rubbing A.B. on the vagina skin-to-skin.
Section 288, subdivision (a), provides in relevant part "[A]ny person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." Section 288 "is violated if there is '"'any touching" of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child.' [Citation.] Thus, the offense described by section 288(a) has two elements: "'(a) the touching of an underage child's body (b) with a sexual intent." [Citation.]'" (People v. Villagran (2016) 5 Cal.App.5th 880, 890; see People v. Martinez (1995) 11 Cal.4th 434, 444, 451 [section 288 applies to any sexually motivated touching of a child under the specified age and can involve any part of the victim's body].)
Villagran contends we must reverse count 5 because it duplicates count 4. He explains he "grabbed [A.B.'s] thigh (Count 5) and then inserted his penis in her anus (Count 4). There is no indication in [A.B.'s] testimony that [defendant] fondled her thigh or touched her thigh for purposes of sexual gratification. Rather, it appears that [he] grabbed [her] thigh in order to penetrate her. As a result, Count 5 based on the touching of [A.B.'s] thigh must be reversed because it cannot be considered a separate and distinct touching from that alleged in Count 4." (See People v. Bevan (1989) 208 Cal.App.3d 393, 399 [it is impermissible to fragment a single criminal act into multiple offenses], disapproved on another point in People v. Scott (1994) 9 Cal.4th 331, 347-348 (Scott).) In essence, Villagran challenges the sufficiency of the evidence to support his conviction on count 5.
"'A reviewing court faced with . . . a claim [of insufficient evidence] determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.] This standard applies whether direct or circumstantial evidence is involved. "Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] '"If the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."'" [Citation.]' [Citation.]" (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1321-1322.)
In Scott, supra, 9 Cal.4th 331, the Supreme Court rejected the defendant's claim that fondling a child before sexual intercourse constitutes only one violation of section 288. The court explained that fondling acts are not necessarily indivisible from other sexual crimes committed on the same occasion if "the defendant independently sought sexual gratification each time he committed an unlawful act." (Id. at p. 347, fn. 9.) In People v. Jimenez (2002) 99 Cal.App.4th 450, the Court of Appeal followed Scott's reasoning in upholding the defendant's conviction on six counts charging a violation of section 288 that occurred during one incident. There, the defendant fondled the victim's breasts and buttocks, squeezed her thighs, touched her vagina, and inserted his finger inside her vagina and anus. The court explained that when "a defendant fondles a portion of the victim's body with the requisite intent, a violation of section 288 has occurred. The offense ends when the defendant ceases to fondle that area. Where a defendant fondles one area of the victim's body and then moves on to fondle a different area, one offense has ceased and another has begun." (Id. at p. 456.)
Based on A.B.'s testimony and the totality of the evidence in the case, the jury reasonably could conclude Villagran touched A.B. for sexual gratification (count 5) and this touching was not merely incidental to his penetration of her anus (count 4) on the same occasion. A.B. testified he placed his hand on her thigh and touched her in a grabbing manner. In describing the sequence of events, she said he began touching her, and then after he touched her, he inserted his penis in her anus. She also stated the incident lasted "[s]everal minutes," but his penis was not inside her very long. In his statement to investigators, Villagran admitted touching A.B.'s vagina. The jury reasonably could find two distinct lewd touchings for sexual gratification, the touching of A.B.'s thigh and the anal penetration. The jury did not err in convicting Villagran of both counts 4 and 5. B. Sentencing on Count 5
Villagran also argues the trial court erred when it sentenced him to a life term on count 5 because at the time he molested A.B., section 667.61 did not authorize multiple life terms for multiple sex crimes against a single victim on the same occasion. The Attorney General concedes the issue, and we accept the concession.
Section 288, subdivision (a), provides a conviction for a nonforcible lewd act is punishable by a term of three, six, or eight years. (People v. Hammer (2003) 30 Cal.4th 756, 765.) In 1994, the Legislature enacted section 667.61, commonly known as the One Strike law, which provides for an indeterminate term of 15 years to life for violations of section 288, subdivision (a), when the defendant is convicted of committing sex offenses against multiple victims in the same proceeding. (People v. Wutzke (2002) 28 Cal.4th 923, 929-930.) Under the One Strike law as it existed at the time Villagran molested A.B., section 667.61, subdivision (g), required the court to impose a life term "once for any offense or offenses committed against a single victim during a single occasion." (See People v. Jones (2001) 25 Cal.4th 98, 107 [court may impose only one life sentence for multiple sexual offenses against one victim during an uninterrupted period and in a single location].) Subdivision (g) further provided, "Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including section 667.6, if applicable." (Former § 667.61, subd. (g).) Accordingly, the trial court erred in imposing terms of 15 years to life for both counts 4 and 5. (See U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9; Collins v. Youngblood (1990) 497 U.S. 37, 42-43; People v. Grant (1999) 20 Cal.4th 150, 156-157.) We remand the case to the trial court so it may impose a determinate term for count 5. (People v. Fuller (2006) 135 Cal.App.4th 1336, 1343.)
The Legislature amended section 667.61 effective September 30, 2006 to remove the limiting language in subsection (g). --------
III
DISPOSITION
The convictions are affirmed. The term of 15 years to life imposed for count 5 is reversed and the cause is remanded for the trial court to impose a determinate term of three, six or eight years for that count.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.