Opinion
C081300
07-05-2017
THE PEOPLE, Plaintiff and Respondent, v. JCONCEPICON HERNANDEZ LOERA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P14CRF0609)
A jury convicted defendant Jconcepicon Hernandez Loera of continuous sexual abuse of a child under the age of 14 years (Pen. Code, § 288.5, subd. (a); unless otherwise set forth, statutory references that follow are to the Penal Code), oral copulation of a child under 14 (§ 288a, subd. (c)(1)), and lewd and lascivious acts on a child under 14 who is more than 10 years younger than defendant (§ 288, subd. (a)). The trial court sentenced defendant to 16 years in state prison.
On appeal, defendant contends there is insufficient evidence that the victim was under the age of 14 to support the lewd and lascivious count, the court relied on improper factors in imposing the middle term for the continuous sexual abuse count, the trial court erred regarding the statutory minimum fine imposed under sections 288, subdivision (e) and 288a, subdivision (m), and the abstract of judgment contains an error. We will vacate the sections 288 and 288.5 fines and remand them for further proceedings. In all other respects, we affirm the judgment.
FACTS AND PROCEEDINGS
Prosecution Evidence
Defendant married Y.L. in December 2006. They lived together with Y.L.'s five-year-old son A.L. and her daughter CW01, who was born in August 2000. The couple separated in October 2010. Y.L. had two children with defendant before they separated. While they were separated, defendant would occasionally stay at her home or have the children stay overnight with him. He moved back in with Y.L. in 2012.
In July 2014, defendant came home late after spending the night drinking with his friends. Y.L. heard him come home, but he did not come to their bedroom. After determining defendant was not in the bathroom, Y.L. peeked into CW01's room. She turned on the light and saw defendant lying in bed with CW01, who was on her side facing defendant. When the lights went on, CW01 covered her face with her hands, while defendant jumped back from her and onto his back. Y.L. pulled off the blankets. Defendant's pants were unbuttoned and unzipped, and CW01's tank-top and bra were pulled up.
Defendant sat up. Y.L. asked defendant what was going on and then punched him in the face. She eventually asked CW01 if anything inappropriate happened. When CW01 said no, Y.L. became convinced she misconstrued what she had seen. She and defendant never talked about the matter again.
CW01 testified that defendant started sexually abusing her when she was in the fifth grade. The first time he molested her, CW01 went into the bedroom to get a diaper for her youngest sibling. Defendant followed her in, locked the door, pulled down his pants, grabbed her head, and made her perform oral sex on him. It stopped when two of her siblings knocked on the door, causing defendant to stop holding her head. She did not tell anyone because she was afraid defendant would do something to her. She was 11 at the time.
Between the first incident of abuse and August 2013, defendant molested her about 50 times. In addition to having her perform oral sex on him, defendant also would touch her breasts underneath her clothing, force her to put her hand on his penis, and kiss her on the lips or neck. He told CW01 that bad things would happen to her mother if she told her.
Regarding the July 2014 incident Y.L. saw, CW01 recalled being on top of defendant with his pants unzipped and her shirt pulled up to her chest. Defendant pushed her to the side when Y.L. walked in. Y.L. "flipped out" while CW01 pretended to be sleeping.
The last time defendant abused her was in the summer of 2014, between the end of seventh grade and the beginning of eighth grade at her uncle's trailer in Pollock Pines. CW01 did not know the exact date it happened. She, her siblings, and mother were going to the lake; they stopped by her uncle's trailer to see if defendant wanted to go with them. Defendant, who had been drinking, was alone when CW01 entered the trailer. CW01 tried to leave the trailer, but defendant pushed her onto the bed and began kissing her. When she got up and started to leave, defendant offered her $20 to stay and help him with the house. CW01 left without responding.
Defendant became upset in September 2014 when he discovered about $3,000 of his money was missing. He told Y.L. about it and that he thought one of the children might be involved. CW01 admitted taking the money from defendant, in roughly $200 increments each week. She used the money to buy things after school or gave the money to a friend.
In October 2014, CW01 wrote a letter describing defendant sexually abusing her and gave it to an adult she trusted at school. Y.L. then agreed to cooperate with the authorities. Defendant was arrested shortly thereafter.
The Defense
Defendant testified and denied sexually abusing CW01. The July 2014 incident happened when he came home after a night of drinking and CW01 asked him for a hug. He decided to sleep with the kids for awhile, so he pulled a blanket over CW01 and him. CW01 stole $3,000 from him starting in June 2014. He confronted his children about the thefts two to three days before his arrest.
Sentencing
The probation report noted that defendant had no prior criminal record and stated that his Static 99 score of zero placed him in the very low risk category for reoffending.
At the sentencing hearing, defense counsel argued for a low term of six years on the continuous sexual abuse count. The trial court found as aggravating factors the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3); unless otherwise set forth, rule references are to the California Rules of Court) because she was between the ages of 11 and 14 and in the care of her stepfather when the crimes occurred, the manner in which the crimes were carried out, happening when the mother was gone and defendant threatening the victim if she told anyone, was evidence of planning (rule 4.421(a)(8)), and defendant was in a position of trust as a father figure when he committed the crimes (rule 4.421(a)(11)). Defendant's lack of a criminal record (rule 4.425(a)(1)) was the sole mitigating factor identified by the trial court.
The court imposed a 16-year term, consisting of a 12-year middle term for the continuous sexual abuse count and consecutive two-year terms for the remaining two counts. Among the fines and fees, the trial court imposed, without objection what it believed to be the statutory minimum $500 fine pursuant to section 288(e) and $70 fine pursuant to section 288a, subdivision (m).
DISCUSSION
I
Sufficiency of the Evidence Relating to Lewd and Lascivious Acts
Defendant contends there is insufficient evidence that the victim was under the age of 14 to support the lewd and lascivious acts conviction.
In determining the sufficiency of the evidence, we ask 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.' " (People v. Hatch (2000) 22 Cal.4th 260, 272; italics omitted.) We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' [Citations.]" (People v. Casares (2016) 62 Cal.4th 808, 823-824.) Thus, reversal is not warranted unless there is no hypothesis on which there exists substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The lewd and lascivious count was based on the last time defendant molested CW01.
We note that, while the information alleged that this offense took place between May 1, 2014 and June 2014, the prosecutor's closing argument made clear that the People relied on the last incident of molestation, in CW01's uncle's trailer, as the act constituting the offense. Defendant does not claim any error from this variance between the information and the People's theory at trial.
One element of the offense of the lewd and lascivious acts count is that the victim is at the time of the act under the age of 14. (§ 288, subd. (a).) Since CW01 testified that this occurred in the summer of 2014 between seventh and eighth grade, and her 14th birthday was in August 2014, defendant contends the evidence was insufficiently specific of the date of the crime to support a finding that it took place before CW01's 14th birthday.
Defendant relies primarily on two cases involving continuous sexual abuse of a child under section 288.5, People v. Valenti (2016) 243 Cal.App.4th 1140 (Valenti), and People v. Mejia (2007) 155 Cal.App.4th 86 (Mejia). Under section 288.5, subdivision (a), the prosecution must prove that there were three or more incidents of abuse, that at least three months elapsed between the first and third incidents, and that the victim was under 14. (§ 288.5, subd. (a); Mejia, at p. 94.)
In Mejia, the defendant was charged with committing continuous sexual abuse " 'on or between June 1, 2004 and September 17, 2004.' " (Mejia, supra, 155 Cal.App.4th at p. 93.) The evidence showed the victim was first abused some unspecified time in June 2004 and continued every month through September, and that she turned 14 on September 18, 2004. (Id. at pp. 94, 95.) Since "the only reasonable inference permitted by the evidence was that defendant's abuse began sometime in June and continued to some date in September—but the jury could only speculate that the first incident occurred early enough in June to satisfy the 90-day requirement expiring on September 17, 2004," there was insufficient evidence to support the conviction. (Id. at p. 95.)
Valenti followed a similar pattern. The defendant's crime was alleged to have taken place " '[o]n or between January 1, 2012 and July 11, 2012.' " (Valenti, supra, 243 Cal.App.4th at p. 1159.) The victim first visited the defendant at some point in January 2012. (Ibid.) He then had a second visit at the defendant's home, and a long time after that, a third visit, and a fourth visit a couple of weeks after the third. (Ibid.) "However, it was not until sometime that summer, 'a couple months' after his fourth visit," that the defendant started to molest the victim. (Ibid.) As in Mejia, the court of appeal reversed the section 288.5 conviction because the evidence of when the abuse started was not specific enough to support an inference that it started no later than 90 days before the last day of the last incident, July 11, 2012, the day before the defendant was reported to the police. (Id. at pp. 1159-1160.)
During her direct examination, when asked about the incident in her uncle's trailer, CW01 first testified that she did not know when it happened. Further questioning established that she was in seventh grade at Sierra Ridge School before the summer of 2014, was on vacation from school in summer 2014, started eighth grade in August 2014, and defendant was arrested in October of that year.
The prosecutor then asked CW01: "Okay. So we have like four windows of time, your 7th grade school year at Sierra Ridge when you're 13, the summer when school ends between the time school ends and when school starts for 8th grade year, and then your 14th birthday, and the time the Defendant is arrested. As you think about those windows of time, does this last event fit into any of those windows in your memory?" CW01 replied, "In my 7th grade summer vacation year." The prosecutor asked, "Between 7th and 8th grade?" CW01 answered, "Yes."
The prosecutor's question established a time line starting with CW01's seventh grade school year, then her summer vacation, followed by her starting the eighth grade, which was followed by her 14th birthday. The jury could reasonably infer that CW01's answer, that the incident happened during her summer vacation between seventh and eighth grades, establishes that it happened before she started eighth grade and therefore also before her 14th birthday. The time line presented by the prosecutor and CW01's answer in response to it thus distinguishes Valenti and Mejia, cases in which there was no possible inference the jury could draw that would support the convictions in those cases. Accordingly, we conclude the section 288 conviction is supported by substantial evidence.
II
Sentencing
Defendant contends that the trial court relied on two improper aggravating factors, the victim's particular vulnerability and defendant's planning, in imposing the middle term for continuous sexual abuse, and that trial counsel was ineffective for failing to object. His failure to object to the allegedly improper factors at sentencing forfeits the contention on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351; People v. Partida (2005) 37 Cal.4th 428, 434; People v. Brach (2002) 95 Cal.App.4th 571, 577 ["Claims of error relating to sentences 'which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner' are waived on appeal if not first raised in the trial court"; italics omitted].) We will nevertheless address defendant's challenge because he contends trial counsel's failure to object amounts to ineffective assistance of counsel.
To establish ineffective assistance of counsel, a defendant must show "counsel's action was, objectively considered, both deficient under prevailing professional norms and prejudicial. [Citation.]" (People v. Seaton (2001) 26 Cal.4th 598, 666.) "[T]he burden is on the defendant to show (1) [defense] counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288.)
"[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 437.) The defendant bears the burden of establishing an ineffective assistance claim. (Id. at p. 436.) Overcoming this "high bar is never an easy task. [Citation.]" (Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].)
Defendant claims the trial court improperly relied on CW01's age in finding she was particularly vulnerable because all of defendant's crimes, which require the victim be under 14, already take her age into account. (See People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694 (Dancer), disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123 [" 'Particular vulnerability,' " may not be used as an aggravating offense where the vulnerability is based solely on age and age is an element of the offense].) He also argues there is insufficient evidence of planning to support the trial court's finding as to that aggravating factor. In support of this argument, defendant claims there is less evidence of planning here than in other cases upholding the use of the planning aggravating factor. (See People v. Lai (2006) 138 Cal.App.4th 1227, 1259 [defendant convicted of welfare fraud persistently lied on numerous forms in order to receive welfare benefits not entitled to]; People v. Forster (1994) 29 Cal.App.4th 1746, 1758-1759 [defendant convicted of driving while intoxicated went to Mexico for the specific purpose of partying].) We find that both factors were proper.
The sentencing court must state the reasons for imposing the term selected. (§ 1170, subd. (b).) In exercising its discretion to select one of the three authorized prison terms, a trial court may consider many enumerated circumstances in aggravation or mitigation. (Rules 4.420(a) & (b), 4.421, & 4.423.)
As an aggravating factor, victim vulnerability means "defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act." (People v. Smith (1979) 94 Cal.App.3d 433, 436.) "The obvious purpose of increasing punishment based on victim vulnerability is to deter criminal conduct that seeks to exploit the particularly vulnerable victim." (People v. Spencer (1996) 51 Cal.App.4th 1208, 1223.) Age alone cannot support a finding of victim vulnerability when the victim's age is an element of the offense, "[h]owever, 'particular vulnerability' is determined in light of the 'total milieu in which the commission of the crime occurred . . . .' [Citation.]" (Dancer, supra, 45 Cal.App.4th at p. 1694.)
The trial court did not invoke CW01's age in isolation, as it also cited defendant's role as her stepfather in finding CW01 particularly vulnerable. This role gave defendant access to and authority over CW01 that rendered her more susceptible to defendant's molestation. Where, as here, CW01 was almost three years younger than the minimum age for a victim when the molestation started and the trial court relied on other evidence establishing her vulnerability, the trial court's invocation of her age did not invalidate the vulnerability aggravating factor.
It is an aggravating factor when "[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism." (Rule 4.421(a)(8).) The trial court has considerable latitude regarding this factor. (People v. Mathews (1980) 102 Cal.App.3d 704, 710.) Defendant carried out the crime repeatedly, around 50 times. He took steps to avoid detection, waiting until CW01's mother was gone, and to prevent CW01 from reporting him, by threatening harm ("bad things") to her mother if she said anything. Together, these constitute sufficient evidence of planning and sophistication to support the trial court's finding. The fact that this evidence differs from that in the cases cited by defendant is of no consequence, as those cases involved different crimes and did not find the evidence of planning insufficient.
Since the trial court did not rely on improper aggravating factors, defense counsel did not provide substandard representation in failing to object to them. Defendant's claim is without merit.
III
Mandatory Minimum Fine
Defendant contends the trial court did not understand its discretion when it imposed what it believed were mandatory minimum fines of $500 under section 288(e) and $70 fine under section 288a, subdivision (m). The Attorney General concedes the point. We accept the concession.
Section 288, subdivision (e) states in pertinent part: "Upon the conviction of any person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000)." Section 288a, subdivision (m) states in pertinent part: "In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section . . . ."
Imposition of either fine is within the trial court's discretion and there is no mandatory minimum that must be imposed for either of them. Since the trial court did not understand its discretion, the appropriate action generally is to vacate and remand the matter for the trial court to exercise its sentencing discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
IV
The Abstract of Judgment
Defendant notes that the abstract erroneously states a $700 section 288a, subdivision (m) fine rather than the $70 fine imposed by the trial court and asks us to order a correction. While we agree that the abstract is incorrect, ordering a correction is unnecessary, as the trial court will issue a new abstract after exercising its discretion on the section 288 and 288a fines on remand. We assume the new abstract will not contain any such error.
DISPOSITION
The $500 section 288, subdivision (e) and $70 section 288a, subdivision (m) fines are vacated and the matter is remanded for the trial court to exercise its discretion as to those fines. In all other respects, the judgment is affirmed.
HULL, J. We concur: BLEASE, Acting P. J. BUTZ, J.