Opinion
A147665
03-14-2017
THE PEOPLE, Plaintiff and Respondent, v. CECIL ALHAMBRA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51508621)
Defendant and appellant Cecil Alhambra appeals following his conviction of multiple sexual molestation charges and the imposition of a lengthy prison term. We conclude there is insufficient evidence to support one count and there are sentencing errors that require remand for resentencing.
PROCEDURAL BACKGROUND
In a September 2015 amended information, the Contra Costa County District Attorney charged appellant with the following 37 offenses: sexual acts with a child 10 years or younger (Pen. Code, § 288.7, subd. (a); counts 1, & 3); forcible lewd acts on a child (§ 288, subd. (b)(1); counts 2, 4, 6, 8, 10, 12, 14, 16, 20, & 31-35); rape of a child (§ 269, subd. (a)(1); counts 5, 7, 9, 11, 13, 15, & 17); forcible oral copulation of a child under 14 years (§ 288a, subd. (c)(2)(B); count 18); forcible sexual penetration of a child under 14 years (§ 289, subd. (a)(1)(B); count 19); forcible rape (§ 261, subd. (a)(2); counts 21, & 24); forcible oral copulation of a child 14 years or older (§ 288a, subd. (c)(2)(C); counts 22, & 25); forcible sexual penetration of a child 14 years or older (§ 289, subd. (a)(1)(C); counts 23, & 26); oral copulation of a child under 14 years (§ 288a, subd. (c)(1); count 27); lewd acts on a child under 14 years (§ 288, subd. (a); counts 28, 29, 30, 36); and possession of child pornography (§ 311.11, subd. (a); count 37). The information included multiple victim allegations as to 18 of the counts (§ 667.61, subds. (a)-(e)). Counts 1 through 26 were alleged to have involved Jane Doe 1; counts 27 through 30 were alleged to have involved Jane Doe 2; and counts 31 through 36 were alleged to have involved Jane Doe 3.
All undesignated statutory references are to the Penal Code.
In December 2015, a jury found appellant not guilty of counts 1-5 (involving Jane Doe 1) and 33-35 (involving Jane Doe 3), and guilty of counts 6-30 and 37. The jury did not reach a verdict as to counts 31, 32, and 36 (involving Jane Doe 3), and the court declared a mistrial on those counts. The jury made multiple victim findings as to counts 6, 8, 10, 12, 14, 16, 20, and 28-30.
In February 2016, the trial court sentenced appellant to a prison term of 138 years and 8 months, plus 340 years to life. The sentence was comprised of the following consecutive terms: 8 years on counts 6, 8, 10, 12, 14, 16, 20-26, and 28; 10 years on counts 18 and 19; two years on counts 27, 29, and 30; eight months on count 37; 15 years to life on counts 7, 9, 11, 13, 15, and 17; and an additional 25 years to life "enhancement" on counts 6, 8, 10, 12, 14, 16, 20, and 28-30 under section 667.61, subds. (a)-(e).
This appeal followed.
FACTUAL BACKGROUND
Because the jury did not convict appellant of any counts related to Jane Doe 3 and because appellant does not challenge his child pornography conviction, facts related to that victim and that charge are not included in this summary. --------
Jane Doe 1 was born in October 1999 and was 16 years old at the time of trial. Jane Doe 1 and her mother visited appellant's house in San Pablo on weekends when she was in the sixth and seventh grades, and moved into the house for extended periods when she was in the eighth and ninth grades. Jane Doe 1's mother sometimes left to go to casinos on weekends. Jane Doe 1 testified that, starting when she was in sixth grade, appellant would enter her room at night and touch her body and penetrate her vagina with his penis. This abuse continued when she was in the seventh, eighth, and ninth grades. Beginning in ninth grade, appellant also began orally copulating her and penetrating her vagina with his fingers. Jane Doe 1 testified that, over the years, appellant put his penis in her vagina more than forty times and put his fingers in her vagina about ten times.
Jane Doe 2 was born in June 2000 and was 15 years old at the time of trial. She is Jane Doe 1's cousin. Jane Doe 2 testified that, when she was four years old, appellant licked her between the cheeks of her buttocks when he was visiting her home in Rodeo. She also remembered appellant visiting at a house in Vallejo she moved to when she was five years old. At that house, appellant would come into her room and touch her buttocks while watching a pornographic video and masturbating under a blanket. This happened more than once and fewer than five times.
DISCUSSION
I. Insufficient Evidence Supports the Conviction for Orally Copulating Jane Doe 2
Appellant was convicted in count 27 of orally copulating Jane Doe 2, in violation of section 288a, subdivision (c)(1). The charge was based on appellant's alleged oral contact with Jane Doe 2's anus. The incident was also the basis for the lewd acts conviction in count 28. Appellant contends the evidence at trial was insufficient to support the conviction for oral copulation. We agree.
Section 288a defines oral copulation as "the act of copulating the mouth of one person with the sexual organ or anus of another person." (§ 288a, subd. (a).) Section 288a, subdivision (c)(1) criminalizes that act when performed on a person under the age of 14 by a person more than ten years her senior. (§ 288a, subd. (c)(1).) Any contact between the mouth and anus suffices, "no matter how slight." (People v. Mendoza (2015) 240 Cal.App.4th 72, 80.)
At trial, Jane Doe 2 testified she was playing with a toy in her room when appellant entered, told her to turn around, and pulled down her pants and underwear. She testified appellant then "licked my butt." The prosecutor asked "[W]hat part of your butt?," and she responded "Like in between." The prosecutor then asked, "When you say 'in between,' do you mean in between the two butt cheeks?" Jane Doe 2 responded in the affirmative and testified appellant "started from the bottom, then up." This occurred only once.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, 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.' " (People v. Avila (2009) 46 Cal.4th 680, 701.) Appellant acknowledges the contact between the mouth and anus need only be slight to support a conviction under section 288a, but he argues there was no evidence from which the jury could infer his tongue actually touched Jane Doe 2's anus, rather than only passing between the cheeks of her buttocks. Appellant suggests the evidence was sufficient to support the count 28 lewd act conviction (§ 288, subd. (a)), but insufficient to support the count 27 oral copulation conviction.
Respondent emphasizes Jane Doe 2's testimony that appellant began at the "bottom" of her buttocks and ran his tongue "between" the cheeks all the way to the "top." Respondent argues the jury "could reasonably infer . . . that appellant's mouth contacted Jane Doe 2's anus as his tongue traveled from the bottom to the top between the cheeks of her buttocks." We disagree. While Jane Doe 2 testified appellant's tongue moved between the cheeks of her buttocks (that is, in the intergluteal cleft), there was no testimony or other evidence from which the jury could infer appellant's tongue actually touched her anus. Accordingly, the inference respondent suggests is speculative and insufficient to support the conviction. (People v. Ramon (2009) 175 Cal.App.4th 843, 851 ["Speculation is not substantial evidence."]; see also People v. Perez (1992) 2 Cal.4th 1117, 1133.) The only case respondent cites on this point is People v. Thomas (1986) 180 Cal.App.3d 47, in which the court considered the sufficiency of the evidence of penetration to support a sodomy charge. There, however, there was evidence from which the jury could make a non-speculative inference of penetration, because the victim testified defendant touched his penis to her anus and she felt "A lot of pain . . . [i]n the anus." (Id. at pp. 54-56.) We will reverse the conviction on count 27.
II. Sufficient Evidence Supports the Lewd Acts Convictions in Counts 29 and 30
Counts 29 and 30 charged appellant with performing lewd acts on Jane Doe 2 (§ 288, subd. (a)) between June 2005 and June 2006. The acts were alleged to have occurred when Jane Doe 2 was five years old and living in Vallejo; she testified appellant masturbated while touching her bottom and watching a pornographic film.
Appellant contends the evidence was insufficient to support both convictions because Jane Doe 2 clearly described only one such episode at the Vallejo residence. At trial, she testified she was "not sure" how many times appellant touched her while watching a pornographic film, but it was more than once and less than five times. Appellant emphasizes her testimony on cross-examination that she actually only had memories of one time it happened.
We reject appellant's claim. Although Jane Doe 2 was unclear how many times the abuse occurred at the Vallejo house, she testified it was more than once. She also remembered appellant playing different pornographic videotapes and testified the abuse stopped when she was six years old and refused to go upstairs when appellant was at her house. Even though Jane Doe 2 testified on cross-examination she did not "have memories of any more than" one time, the jury was entitled to credit her earlier testimony it occurred more than once. (People v. Cortes (1999) 71 Cal.App.4th 62, 73-74 [where "victim gave inconsistent and conflicting testimony," appellate court was required to "resolve all inferences and inconsistencies in favor of the trial court's findings"].) The jury might have understood the victim's testimony on cross-examination to mean she only recalled the details of one incident. But, as respondent points out, Jane Doe 2 did not need to testify to the details of the second incident to support the conviction on the second lewd acts charge. (People v. Jones (1990) 51 Cal.3d 294, 315-316.)
We will affirm appellant's convictions for lewd acts in counts 29 and 30.
III. The Trial Court Made Several Sentencing Errors
The parties agree the trial court made several sentencing errors.
First, the trial court erred in imposing both determinate sentences and indeterminate sentences under section 667.61 on the 10 lewd act convictions (counts 6, 8, 10, 12, 14, 16, 20, and 28-30). Section 667.61 (the "One Strike law") " 'is not . . . a sentence enhancement.' " (People v. Acosta (2002) 29 Cal.4th 105, 118.) It "is not an 'additional term of imprisonment' and it is not added to a 'base term.' " (Ibid.; see also People v. Rodriguez (2012) 207 Cal.App.4th 204, 214 [holding "trial court erred in imposing the One Strike sentence . . . as an enhancement on an eight-year high term, rather than as the principal term"].) On remand, the trial court should strike the determinate portions of appellant's sentences for each count subject to sentencing under section 667.61.
Second, the trial court erred in imposing terms of 25 years to life for counts 28, 29, and 30 because, at the time those crimes were committed, the maximum sentence was 15 years to life. In particular, when appellant committed the lewd acts charged in counts 28, 29, and 30 (between June 2004 and June 2006), the maximum penalty for lewd acts against multiple victims was 15 years to life. (Former § 667.61, subds. (b), (c)(7), and (e)(5) [15 years-to-life sentence for violations of section 288, subd. (a) in a multiple victim case].) The penalty was increased to 25 years to life in September 2010. (§ 667.61, subds. (c)(8), (e)(4), and (j)(2), as amended by Stats. 2010, ch. 219, § 16, eff. Sept. 9, 2010.) Imposition of more severe punishment than applicable at the time appellant committed the crime "violates the state and federal constitutional protections against ex post facto laws." (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.) We will remand for resentencing on counts 28, 29, and 30.
Third, the parties agree the trial court erred in failing to stay the sentence for the oral copulation charged in count 27 under section 654, because the lewd act charged in count 28 was based on the same conduct. Because we have concluded the conviction on count 27 must be reversed, the failure to stay the sentence under section 654 is moot.
DISPOSITION
The conviction on count 27 is reversed and the matter is remanded for resentencing in accordance with this decision.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.