Opinion
G053937
01-24-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE SOTERO GONZALEZ, Defendant and Appellant.
Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is hereby ordered that the opinion filed herein on January 24, 2018, be modified in the following particulars:
1. On page 5, delete footnote 6 and replace with the following footnote 6:
"While disputing Gonzalez's contention that insufficient evidence supports his convictions under counts 8, 9, and 10, the Attorney General has conceded that the sentences for counts 8 and 9 should be stayed under section 654. (The sentence for count 10 has already been stayed.) Gonzalez did not properly ask for this relief in his opening brief. (See Cal. Rules of Court, rules 8.204(1); 8.360.) Nevertheless, the point is well taken, and we grant the relief."
2. On page 8, under the DISPOSITION heading, delete the entire paragraph and replace with the following paragraph:
"Appellant's sentence on counts 4, 5, 6, 8, and 9 is reversed under section 654, and the matter is remanded for resentencing consistent with the views expressed herein. In all other respects, the judgment is affirmed."
This modification does not effect a change in the judgment.
The petition for rehearing is DENIED.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13WF2570) OPINION Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Jose Sotero Gonzalez was convicted of 10 counts relating to sexual assault of an eight-year-old girl, A.L. He challenges three of the counts under Penal Code section 288, subdivision (a) on the basis of lack of evidence of specific intent. He also asserts that the sentences imposed for another three counts should have been stayed pursuant to section 654. And he wants the abstract of judgment corrected to reflect the fact that the court imposed only one $1,000 victim restitution fine on him, not two.
All further statutory references are to the Penal Code.
The Attorney General does not dispute Gonzalez's position regarding the application of section 654 to the three counts he has identified for this appeal. The Attorney General also does not dispute that the court imposed only one victim restitution fine. The only disputed issue on appeal is, therefore, the sufficiency of the evidence of specific intent for three of his convictions under section 288, subdivision (a).
FACTS
Gonzalez was convicted of committing 10 sex crimes against A.L., an unrelated eight-year-old girl who, with her mother, resided in the same house with him and his wife. Counts 1 through 3 alleged violations of section 288.7, subdivision (a) (intercourse or sodomy with a child under 10). Counts 4 through 10 alleged violations of section 288, subdivision (a) (lewd act upon a child under 14). He does not dispute counts 1 through 3 or his conviction for one count, count 7, for a lewd act. He claims, however, that there was insufficient evidence to convict him of counts 8, 9, and 10, all of which required a specific intent to arouse, appeal to, or gratify the lust, passions or sexual desires of the perpetrator or child. He asserts the acts forming the basis of these three counts were merely preparatory to the other sexual offenses and were therefore not separate crimes with their own specific intents.
Section 288, subdivision (a), provides, "Except as provided in subdivision (i), any 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 and shall be punished by imprisonment in the state prison for three, six, or eight years."
Counts 8 and 9 alleged that Gonzalez told A.L. to pull her pants down on the two separate occasions when he had intercourse with her and sodomized her. Count 10 was a general allegation covering any touching not included in the other counts.
During a pretrial interview, A.L. recounted how Gonzalez grabbed her hand to prevent her from leaving the room just before he sodomized her. In his police station interview, Gonzalez admitted climbing on top of A.L. while she was on a bed.
A.L. testified only briefly at trial, which took place in May 2016. The primary evidence relating to her accusations against Gonzalez came from a videotape of an interview with her by a member of a Child Abuse Services Team (C.A.S.T.) on August 21, 2013. A.L. was by that time nine years old. She told the C.A.S.T. interviewer that Gonzalez molested her on two occasions. On the first occasion, A.L. stated, Gonzalez told her to pull down her pants and her underwear. He sodomized her while they were both standing up then had intercourse with her while they were both lying down. The second time, Gonzalez told A.L. to lie down and pull down her pants. He then had intercourse with her.
When the video was played during trial, the sound track was not transcribed. During closing argument, the prosecutor replayed a portion of the video. The C.A.S.T. team member had stepped out briefly, while the camera continued to record. A.L. was alone in the interview room with some toy bears the team member had been using to reenact A.L.'s encounters with Gonzalez. "She's alone in there, and she's got these two bears. I want you to watch what she's doing with these bears as a nine-year-old girl. [¶] (Playing video.) . . . [¶] So now she's waiting for her water to come because she thinks [the team member] is going to come back. Because if you watched, as soon as the door opens she kind of puts it down. She has no idea somebody is watching her. I want you to listen very carefully to what she says the next time she plays with these bears. How she uses a man's voice, the one that's been identified as [Gonzalez], and says, "He put my thingy in you." And then she uses the female bear, "Mommy, mommy, he put his thingy on me." And then she takes the female bear over to the male bear and she says, "You little bad guy," and she starts hitting the male bear. [¶] (Playing video.) . . . [¶] Why is [A.L.] playing like that? She has no idea anyone is watching her. She has no idea she's being videotaped. She is alone in that room with two bears. One that's been identified as her, and one that's been identified as the defendant. And with nobody watching, she reenacts what happened to her."
Gonzalez did not testify. The prosecution introduced an audiotape and a videotape of interviews of him by a Garden Grove police officer, one at Gonzalez's home and the other at the police station. The interviews were conducted in Spanish, and the jury had transcripts with translations to follow along. At first, Gonzalez denied any improper conduct with A.L. whatsoever. Later, however, during the second interview at the police station, he admitted to climbing on top of A.L. while she lay on a bed and to thinking about penetrating her at that time.
The jury convicted Gonzalez of all 10 counts alleged in the information, along with enhancements for substantial sexual contact under section 1203.066, subdivision (a)(8), for several of the counts. Thus Gonzalez was not eligible for probation.
Gonzalez was sentenced to three consecutive terms of 25 years to life on the intercourse and sodomy counts, counts 1, 2, and 3. The court chose count 4, the first lewd act count, as the basis for the determinate sentences. It imposed a six-year term for count 4 and concurrent six-year terms for counts 5 through 9. The court stayed Gonzalez's sentence under count 10 because it was not convinced that the conduct alleged was necessarily a separate crime.
On appeal, Gonzalez asserts that pulling A.L.'s pants down (the basis of counts 8 and 9) was conduct preparatory to the intercourse and sodomy covered under the first three counts, not separate crimes. He also asserts that his sentences for counts 4, 5, and 6 should have been stayed under section 654. Counts 4, 5, and 6 were based on section 288, subdivision (a), and alleged the same conduct as counts 1, 2, and 3 - the intercourse and sodomy counts. With this latter contention, the Attorney General agrees.
At sentencing, the court imposed a victim restitution fine of $1,000 on Gonzalez, under section 1202.4, subdivision (b). The court also imposed but stayed a parole revocation fine of $1,000. The abstract of judgment is divided into two sections - one for the crimes with indeterminate sentences (counts 1, 2, and 3) and the other for the crimes with determinate sentences (counts 4 through 10). Each section has an entry for a $1,000 victim restitution fine and no entry for the parole fine. Gonzalez argues on appeal that only one victim restitution fine was imposed, and the Attorney General agrees.
DISCUSSION
I. Section 288 , subdivision (a), Counts 8, 9, and 10
Gonzalez's argument regarding his lewd act convictions under counts 8, 9, and 10 is expressed in different ways. In his opening brief, he argues that the evidence of his specific intent to commit the crimes is insufficient, because these acts were merely preparatory to intercourse and sodomy. In the reply brief, however, he treats these as two distinct issues - were the acts separate offenses and was there sufficient evidence of specific intent.
Counts 8 and 9 alleged that the lewd act was telling A.L. to pull her pants down on two occasions. Count 10 was a generalized allegation of improper touching.
While disputing Gonzalez's contention that insufficient evidence supports his convictions under counts 8, 9, and 10, the Attorney General has nevertheless argued that the sentences for counts 8 and 9 should be stayed under section 654. (The sentence for count 10 has already been stayed.) Gonzalez did not ask for this relief in his opening brief, and therefore we do not address it. (See People v. Stanley (1995) 10 Cal.4th 764, 793.)
A. Separate Offenses
The California Supreme Court dealt with this issue in People v. Scott (1994) 9 Cal.4th 331 (Scott). In Scott, the defendant argued that multiple lewd acts (i.e., fondling and intercourse) occurred on a single occasion and were part of an "'indivisible'" sexual assault that would not support separate convictions for each act. (Id. at pp. 344-345.) The court disagreed, holding that the defendant had been properly convicted for both fondling and intercourse as separate counts. (Id. at p. 348.) "Each individual act that meets the requirements of section 288 can result in a 'new and separate' statutory violation. [Citation.]" (Id. at pp. 346-347.) "[O]ne offense is complete and another one begins whenever the perpetrator stops and resumes unlawful activity during a sexual assault." (Id. at p. 345.)
In this case, substantial evidence supported the jury's conclusion the acts alleged in counts 8, 9, and 10 were separate offenses. There is, sad to say, an entire industry dedicated to helping adult men arouse or gratify their lusts, passions, and sexual desires by looking at naked children. Ordering A.L. to pull her clothes off could have provided a source of sexual gratification separate from having intercourse with her or sodomizing her. Likewise, the evidence of touching her, for example, climbing on top of her as she lay on a bed, could have supported a conviction for a lewd act separate from intercourse or sodomy. The jury was entitled to decide whether these actions were preparatory or themselves sexually motivated.
B. Evidence of Specific Intent
"'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Gonzalez argues the evidence of specific intent is insufficient to support separate convictions for counts 8, 9, and 10 under section 288, subdivision (a). He relies on People v. Perkins (1982) 129 Cal.App.3d 15 (Perkins) and People v. Webb (1958) 158 Cal.App.2d 537 (Webb) to support his argument that the conduct alleged was all part of the intercourse and sodomy offenses, so there was no separate intent to support a distinct lewd act conviction.
We first note that both Perkins and Webb precede Scott, supra, by many years. The courts deciding those cases did not have the benefit of the Supreme Court's analysis of the dividing lines between sexual offenses. We next note that Perkins followed the analysis in Webb (Perkins, supra, 129 Cal.App.3d at pp. 19-20), so they do not represent independent conclusions on the same issue. Finally, Webb relied on the rule expressed in People v. Greer (1947) 30 Cal.2d 589 (Greer) regarding when sexual offenses are distinct crimes. (Webb, supra, 158 Cal.App.2d at pp. 540-541.) The Supreme Court in Scott specifically found that Greer and its ilk represented an outmoded view of sexual offenses. (Scott, supra, 9 Cal.4th at pp. 347-348, fn. 9.)
But even taking Webb and Perkins at face value, the cases do not support Gonzalez's argument. In both cases, the conduct alleged to have violated section 288, subdivision (a), was the defendant's putting an arm around the victim. (Webb, supra, 158 Cal.App.2d at p. 542; Perkins, supra, 129 Cal.App.3d at p. 19.) The court in Webb held that putting an arm around the victim (a boy) was not lewd or lascivious, regardless of the defendant's intent. (Webb, supra, 158 Cal.App.2d at p. 542.) Likewise, the defendant's putting his arm around the victim (a girl) in Perkins was not an unlawful act. (Perkins, supra, 129 Cal.App.3d at p. 19.)
Telling a child to pull her pants down is quite different from putting an arm around her, especially, as was the case in Webb and Perkins when the arm belonged to someone the child knew and, presumably, trusted. (Perkins, supra, 129 Cal.App.3d at p. 18; Webb, supra, 158 Cal.App.2d at p. 539.) So is climbing on top of a child lying in a bed. The jury was well within the bounds of rationality in concluding Gonzalez did each of these acts to arouse or gratify his sexual desires and that this intent was separate from whatever motivated him to have intercourse with A.L. or sodomize her. (See Scott, supra, 9 Cal.4th at p. 345.) II. Stays of Counts 4, 5, and 6
"A defendant who sexually assaults a child under age 14 can be convicted under section 288 and another applicable statute for the same criminal act. However, he cannot be separately punished for each such offense." (Scott, supra, 9 Cal.4th at p. 344, fn. 6.) Counts 4, 5, and 6 of the information alleged lewd acts consisting of Gonzalez's twice placing his penis on A.L.'s vagina and placing it once on her buttocks. These counts appear to us to duplicate counts 1, 2, and 3 (intercourse twice and sodomy). As the Attorney General has conceded, these counts should be stayed under section 654, subdivision (a).
Section 654, subdivision (a), provides, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." --------
III. Abstract of Judgment
From the transcript of the sentencing hearing, it is clear that the trial court intended to impose only one victim restitution fine of $1,000. Likewise, the court imposed and stayed a probation revocation fine, which is not included in the abstract of judgment. When Gonzalez is resentenced, these fines shall be reflected in the new abstract of judgment.
DISPOSITION
Appellant's sentence on counts 4, 5, and 6 is reversed under section 654, and the matter is remanded for resentencing consistent with the views expressed herein. In all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.