Opinion
C080874
10-31-2017
THE PEOPLE, Plaintiff and Respondent, v. JESUS HERNANDEZ MENDIOLA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR-2014-8989)
After a jury convicted defendant, Jesus Hernandez Mendiola, of numerous sexual offenses involving his minor granddaughter, he moved for a new trial when the girl recanted her testimony prior to sentencing. (Pen. Code, § 1181, subd. 8.) The trial court denied the motion, finding the new evidence—her recantation—was not credible or worthy of belief by a jury and it was not likely the jury would reach a different result. The court sentenced defendant to an aggregate term of 107 years six months to life in prison.
Further unspecified section references are to the Penal Code.
On appeal, defendant contends the court erred in denying his new trial motion because his granddaughter's recantation contradicted the strongest evidence against him, which was her own testimony and statements. He also contends there was insufficient evidence of the corpus delicti for four counts of committing lewd acts on a child (§ 288, subd. (a)) independent of his out-of-court statements to police he had touched his granddaughter's vagina on multiple occasions.
We conclude the court did not abuse its discretion in denying his motion for new trial and there is sufficient evidence of the corpus delicti for the lewd acts convictions. We also find the abstracts of judgment contain clerical errors that do not reflect the court's oral pronouncement of judgment. We direct the trial court to prepare corrected abstracts of judgment. We otherwise affirm.
FACTS AND PROCEEDINGS
Sexual Assault Allegations
Defendant and his wife M.M. had been married for nearly 40 years. They had two children together. M.M. also had two children from a previous relationship, including her daughter E.Y. Although E.Y. was not his biological child, defendant had raised her as his own since she was a little girl.
E.Y. had five daughters. S. and M. were 20 years old and 18 years old, respectively, at the time of trial. J., R., and N., were three years old, nine years old, and 11 years old, respectively, at the time of trial.
E.Y. had a drug problem and often had difficulty caring for her daughters. Her children sometimes lived with relatives, were in foster care, or were homeless. R. and N. both lived with their grandparents, defendant and M.M., for extended periods of time.
Around October 2013, J., R., and N. were placed in foster care with E.M. Nearly a year later, R. disclosed to E.M. defendant had sex with her approximately 200 times, and she did not want to return to her grandparents' house for fall break. N. made similar accusations.
E.M. contacted Child Protective Services and law enforcement on October 22, 2014. Stockton Police Officer Lee Rust initially interviewed R. and N. separately at E.M.'s home. Prior to asking them open-ended questions, Officer Rust confirmed they knew the difference between a truth and a lie, and they each agreed to tell him the truth.
R. reported to Officer Rust that on her sixth birthday in November 2011, defendant called her into his bedroom and had sex with her. R. spelled out the word "S-E-X" when describing what happened. R. said "sex" was something adults do who love each other when one person gets on top of the other and moves around. When asked to describe the body parts involved, she said defendant put his penis inside her "pee-pee," meaning her vagina. She said it happened about 200 times. The sexual abuse ended two years later when she was placed in foster care with E.M. in October 2013.
R. described having sex with defendant in his bedroom, the living room, in a backyard "barn," and in a broken down truck, which was parked in the backyard. One time he tried to put his penis in her mouth, but she kicked to stop him. On another occasion, she said he put his penis inside her butt. She also said he took pictures of her using the restroom and taking a shower. She said she told her mother, father, and school principal about the abuse in 2012.
N. reported defendant had sex with her, and he put his penis inside her vagina. She estimated the abuse started when she was around six (circa 2010) and it ended when she went to foster care in October 2013. She said defendant "touched her in places that you're not supposed to," and specifically used the word "pee pee" to mean vagina. Although she did not state a specific number of times the abuse occurred, she described it as happening "every day" and "more times than she could count." Similar to R., she said the sexual abuse happened in defendant's bedroom and in the backyard shed. She never told anyone.
In December 2014, the girls were separately interviewed by a trained social worker about their claims at the Child Advocacy Center. Both R. and N. also underwent sexual assault exams.
Around that same time, Detective Sophia Cantwell, who was investigating the alleged sexual assaults, arranged to have both girls place pretext calls to defendant to ask him to apologize for his conduct. When N. called defendant, she said she wanted to talk to him about the time he raped her and R., and she demanded an apology. Defendant appeared confused, and said he did not understand what she was accusing him of doing. Although R. attempted to make a similar call, she "froze up" and said she could not go through with the call. After briefly saying hello to defendant, she ended the call.
On December 23, 2014, Detective Cantwell and Detective Jose Estrada, who was fluent in Spanish, went to defendant's home. They explained they were investigating a matter involving his granddaughters. Detective Cantwell told defendant he was not under arrest. Knowing of N.'s allegation he raped her and R., defendant voluntarily agreed to accompany the officers back to the police station to be interviewed. The interview was videotaped.
At the beginning of the interview, Detective Cantwell read defendant his Miranda rights. Although Detective Cantwell understood some Spanish and defendant understood some English, Detective Estrada served as a translator during the interview.
Miranda v. Arizona (1966) 384 U.S. 436 .
Defendant, who was 60 years old, said that about three years earlier R. and N. had lived with him for about six months. He denied having sexual intercourse with them. Although he initially denied touching either girl, he later admitted to touching R.; he continued to deny touching N.
Defendant said he touched R.'s vagina with his hand about eight times; the first time was when she was about six years old. The touching occurred in his home, sometimes in his bedroom, about three times in his truck where she would be in the truck bed, and about three times in the shed in the back of the house where he would be standing.
Defendant said he never put his finger in R.'s vagina, but that he touched her skin with his hand under her underwear. He said R. did not have hair on her vagina at the time. He knew it was wrong to touch her vagina, and felt bad about doing it.
When told that R. had said he had asked her to put her mouth on his penis one time, defendant laughed and admitted that he had. He estimated that she was about six years old when he asked. His penis was exposed and outside of his clothing where R. could see it. She told him no, and, according to defendant, they "left it at that." During this exchange, defendant also admitted that R. had hit him because she did not want him touching her, but the circumstances surrounding the hitting incident were not entirely clear from the interview.
He denied putting his penis in R.'s buttocks and taking pictures of her. He said he never told her not to tell anyone, nor did he try to bribe her to keep quiet by giving her gifts.
At the suggestion of police, defendant wrote R. an apology letter. In the letter, defendant told R. that he loved her, that he would never hurt her, that he was sorry for touching her private, and that he would never do it again. Although police also mentioned writing a letter to N., defendant wrote only to R. Following the interview, defendant was arrested and taken into custody.
Trial Proceedings
A first amended information charged defendant with eight counts of having sexual intercourse with a child 10 years or younger (§ 288.7, subd. (a)—counts 1, 3, 5, 7 as to R. & counts 10, 12, 14, 16 as to N.), eight counts of lewd acts upon a child (§ 288, subd. (a)—counts 2, 4, 6, 8 as to R. & counts 11, 13, 15, 17 as to N.), and one count of attempted oral copulation with a child 10 years or younger (§§ 664, 288.7, subd. (b)—count 9 as to R..) With the exception of count 9, each of the counts included an allegation defendant committed the offenses against more than one victim. (§ 667.61, subd. (e)(4).) Defendant pleaded not guilty to all charges and allegations.
Officer Rust, Detective Cantwell, R., and N. all testified against defendant at trial. R. was nine years old at the time of trial. She testified defendant first "raped" her at his house when she was six. According to R., "rape" meant he had sex with her without asking. His private parts, meaning his penis, went inside her private parts, which she indicated meant her genital area. Defendant also "went on top of [her] and moved." It hurt a "little bit," although R. did not think defendant put his penis in all the way.
According to R., she learned the word "rape" from E.M., her foster mother, when she first went to live with her and before she had disclosed that defendant had touched her.
The "rapes" happened "[a] lot," although she was unsure how many times. It happened more than once when she was six, but she did not remember if it happened when she was seven. She said it stopped when she went to foster care.
Defendant usually assaulted R. in his bedroom, in a broken down truck in the backyard, or in a shed. Most of the time R. had her clothes on, but defendant would take off her pants. On some occasions defendant would be clothed and on others he would take his clothes off.
R. further testified defendant once asked her to suck on his penis, which she saw outside his pants, but she told him "No." She kicked at him and ran away. Although she had not told anyone prior to trial, R. testified she remembered defendant would sometimes force her to put her mouth on his penis.
R. first testified she could not recall whether defendant ever touched her with his hands on her private parts. Upon cross-examination, however, she testified he had not touched her vagina or breasts with his hands.
Although she had told Officer Rust defendant put his penis in her buttocks, R. did not recall telling him that and denied it happened. She said it was possible she told Officer Rust defendant took pictures of her, but she could not remember. She admitted there were lots of things she could not remember, but she was trying her best to testify to what she did remember.
R. said she told her mother and father what happened several times, but they did not believe her. They were apparently using drugs and alcohol at the time. Detective Cantwell testified both her mother and father denied ever being told of the alleged molestations. And although R. told Officer Rust she reported the abuse to her school principal, a mandated reporter, Detective Cantwell testified she was unable to locate any records verifying such a report was made.
N., who was 11 when she testified, said defendant "raped" her. To her, the word "rape" meant to "have sex with somebody that you don't really want to." She explained sex involved a person's "privates," meaning a vagina and a penis. Defendant would stick his "private" (penis) in her "private" (vagina).
N. testified the first time it happened she was about six or seven, and it occurred in defendant's bedroom. She could not recall precise details of the incident, however. In fact, she was either unsure or could not remember many of the alleged assaults, although she said they happened many times. She testified defendant touched her "private" with his hands, but again she could not recall how many times. Defendant sometimes touched her in the shed in the backyard.
Dr. Patricia Apolinario, who conducted the sexual assault exams of both girls, testified her exams revealed potential hymenal problems for each child. The results, however, were "nonspecific;" they could be considered normal or abnormal, and the results could have been from sexual abuse or some other mechanism. She testified her findings were consistent with the children's claims they had sexual intercourse hundreds of times when they were six and seven.
Dr. Apolinario consulted with Dr. Angela Vickers to confirm her findings. Dr. Vickers was a recognized expert in pediatric abuse with extensive experience in conducting sexual assault examinations. After reviewing pictures of the exams and the associated findings, Dr. Vickers concluded that R.'s exam was normal and that the hymenal indentations documented by Dr. Apolinario simply represented natural variations in hymenal tissue. In her opinion, N. also had a normal exam.
Dr. Vickers further testified that 90 percent of sexual assault exams conducted after three days are normal and that in 95 percent of children that had a documented injury, the injury was healed and gone within a few days. For an exam of a child who reported having been raped 200 times between ages six and seven, 95 percent of the time the injuries would have healed within a few days, so the results would be indistinguishable from normal exam results.
Defendant did not testify at trial, but the videotaped recording of his police interview was played for the jury. An official transcript of the interview translating the Spanish to English was also prepared and shown to the jury.
M.M., defendant's wife, R.V., defendant's daughter, A.V., defendant's son-in-law, and R. and N.'s two older sisters, S. and M., testified on defendant's behalf. Each of them testified that R. and N. were liars and had reputations in the family for lying, while defendant, in their opinion, was not the type of person to molest his granddaughters.
The jury found defendant guilty of all charges relating to R. (counts 1-9), but acquitted him of all charges relating to N. (counts 10-17). The multiple victim special allegations attached to counts 1 through 9 were found not true.
Motion for New Trial
On the day set for sentencing, defendant's counsel requested a continuance to file a new trial motion based on newly discovered evidence (§ 1181, subd. 8) that R. and N. recanted their accusations against defendant. The court granted the continuance, and defendant thereafter moved for a new trial.
According to defense counsel's declaration in support of his motion, on October 26, 2015, the date originally set for sentencing, defendant's daughter R.V., who had testified on defendant's behalf at trial, told him R. and N. told her they lied about defendant molesting them and they wanted to retract their accusations. E.Y., defendant's stepdaughter, brought the two girls to the sentencing hearing so they could recant their trial testimony. After briefly confirming the girls' desire to recant, defendant's counsel contacted the prosecutor, who arranged to have Detective Cantwell reinterview R.
Detective Cantwell interviewed R. on November 3, 2015, and E.M., her foster mother, the following day. During her interview, R. reiterated defendant never raped her nor did he do any of the inappropriate things to which she testified about. She only said such things because E.M. told her to and she was scared of her. She said E.M. put her and her sisters outside in the dark, alone in the cold, to punish them. She claimed no one pressured her to change her testimony.
R. testified similarly at the hearing on the new trial motion. She said none of the things she reported to Officer Rust, during the sexual assault interview, or at trial, were true. She blamed E.M. for telling her what to say.
Although R. admitted to living back with her parents again when she first retracted her prior statements and testimony, she denied anyone in her family pressured her to retract. Upon cross-examination, R. disclosed her mother brought her to court that day. She also said her aunt, uncle, and two sisters, all of whom testified on defendant's behalf during trial, accompanied her to the new trial hearing. Before the court identified them and defendant's counsel asked them to leave to courtroom during cross-examination, her aunt and uncle watched her testify on direct. She admitted all of her family members at court that day supported defendant and thought he was a good guy.
Although she was not reinterviewed by Detective Cantwell, N. testified at the new trial hearing. She testified none of her prior trial testimony or statements accusing defendant of raping and touching her inappropriately were true. Like R., N. blamed E.M. for telling her to make up the allegedly false accusations. She was scared of E.M. because she put her outside in the dark when she got in trouble; E.M. also put a shoe in her three-year-old sister's mouth. Although she was living with her parents again, she denied anyone in her family pressured her to recant.
The parties stipulated to submit E.M.'s posttrial statement to Detective Cantwell essentially as an affidavit for the court's consideration. According to the statement, E.M. knew R., N., and J. would eventually be returned to their mother's care. She never told R. or N. to say defendant molested them, she never told them to lie or force them to tell lies, and she never made them stay outside in the dark. She told the girls about defendant's original sentencing date and warned them to stay away from their parents around that time because they might be upset with them.
After hearing arguments from counsel and considering defendant's supplemental brief, the court denied the motion. Based on the totality of the circumstances surrounding the case, the court found R.'s recantation was not credible or worthy of belief. In the court's view, R. likely recanted due to family pressure.
The court sentenced defendant to an aggregate term of 107 years six months to life in state prison. Defendant timely appealed.
DISCUSSION
I
Denial of Motion for New Trial
Defendant contends the court erred in denying his motion for new trial, and that the error violated his federal due process rights under the Fourteenth Amendment. We disagree.
Under section 1181, a trial court may grant a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." (§ 1181, subd. 8.) " ' " 'The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.' " [Citations.]' " (People v. Howard (2010) 51 Cal.4th 15, 42-43 (Howard) [court did not abuse discretion in denying motion for new trial based on newly discovered evidence]; People v. Verdugo (2010) 50 Cal.4th 263, 308-309 [no abuse of discretion in denying new trial motion]; People v. Minnick (1989) 214 Cal.App.3d 1478, 1481 (Minnick).)
Defendant's reliance on People v. Ault (2004) 33 Cal.4th 1250, for a de novo standard of review when the trial court denies a motion for new trial is misplaced. Ault considered the proper standard of review when the trial court grants a criminal defendant's motion for new trial on grounds of prejudicial juror misconduct (id. at p. 1255), something not at issue here. In any event, since Ault, the Supreme Court has applied the abuse of discretion standard when reviewing the trial court's denial of a motion for new trial based on newly discovered evidence. (See, e.g., Howard, supra, 51 Cal.4th at p. 43.) We therefore review the court's ruling for an abuse of discretion.
In ruling on a motion for new trial based on newly discovered evidence, the trial court considers several factors, including whether the evidence is: (1) actually newly discovered, (2) not merely cumulative, (3) such as to render a different result probable upon retrial, (4) something the party, through reasonable diligence, could not have discovered and produced at trial, and (5) the best evidence of which the case admits. (Howard, supra, 51 Cal.4th at p. 43.) The court may consider both the credibility and materiality of the evidence in determining whether it would render a different result reasonably probable on retrial. (Ibid.)
"The role of the trial court in deciding a motion for new trial based upon a witness's recantation is to determine whether the evidence is credible, i.e., worthy of belief by the jury." (Minnick, supra, 214 Cal.App.3d at p. 1482.) That determination is made after considering all the facts pertinent to the particular issue. (Ibid.)
Here, we cannot say the trial court abused its discretion in finding R.'s recantation not credible or worthy of belief by a jury. (Minnick, supra, 214 Cal.App.3d at p. 1481 [recognizing that "the recantation of a witness should be given little credence"].) The court independently weighed her recantation and the factors relevant to the issue, and determined that R.'s initial disclosure to E.M., her subsequent statements to Officer Rust, Detective Cantwell, the sexual assault interviewer, the doctor performing the sexual assault exams, and her trial testimony, which were consistent, were worthy of belief whereas her recantation was not. (Id. at p. 1482 [determination of whether witness's recantation is worthy of belief is made after considering all the facts pertinent to the particular issue].)
The court properly compared R.'s demeanor and testimony during trial and at the new trial motion hearing, and found that her trial testimony was "especially credible," whereas her recantation testimony was "cold," "completely unemotional," and "just didn't seem to be believable." According to the court, R. "seemed . . . to be making up a story for whatever reason and claiming to recant." The trial court, having presided over both the trial and the new trial motion hearing, was particularly well suited to determine whether R.'s recantation lacked credibility. (Minnick, supra, 214 Cal.App.3d at p. 1481 ["the trial court is in the best position to determine the genuineness and effectiveness of the showing in support of the motion"].)
In the court's view, R.'s changed living arrangements and family pressure likely played a key role in facilitating her recantation. Substantial evidence in the record supports this inference. When R. first disclosed the abuse, she was living with her foster mother, E.M., whom she referred to as "Grandma." Neither R. nor N. testified at trial to being mistreated by E.M. It was only after R. was returned to her mother's care that she suddenly recanted and accused E.M. of forcing her to lie about defendant because E.M. supposedly wanted to adopt the girls. E.M., however, testified at trial she never planned to adopt R. and N.
E.M. was an unbiased witness with no apparent reason to lie or to urge the girls to lie. R.'s mother, by contrast, had an obvious motive to pressure her daughters to recant. Defendant raised E.Y. since she was an infant and he treated her like his own biological daughter. Based on E.Y.'s statements at the sentencing hearing, she clearly felt guilty because her own daughters accused her father of sexual abuse and wanted more than anything to help. She even said it was "their fault that he's going to prison." That he was her stepfather does not make it less likely that E.Y. might pressure R. and N. to recant in order to save the man she described as her "dad" and the one who "loved [her] like [she] was his own."
Likewise, the court could reasonably infer R. may have been influenced to recant by the numerous adult family members who accompanied her to the hearing on the new trial motion, five of whom testified at trial on defendant's behalf, and all of whom supported defendant and said he was a "good guy." At the hearing on the new trial motion, R.'s aunt and uncle were asked to leave the courtroom after watching her testify on direct examination. It appears the court and the parties became uneasy about their potential influence over R.
The record also shows the court was fully aware of how the case was actually charged and defendant provided evidence corroborating some, but not all of the allegations. Thus, defendant's contentions that the court did not understand counts 1, 3, 5, and 7 dealt with sexual intercourse or that defendant denied some of R.'s accusations are without merit.
This was not a case, moreover, where the only evidence against defendant was R.'s testimony. In Minnick, for example, the court granted a motion for a new trial after the defendant's 10-year-old daughter recanted her testimony her father had sexually molested her. (Minnick, supra, 214 Cal.App.3d at p. 1480.) The father consistently denied molesting her, and her testimony was the sole evidence against him. (Id. at p. 1482.)
Here, by contrast, defendant admitted key details corroborating much of R.'s testimony and prior statements during a "very calm, dispassionate [police] interrogation" in which he was not coerced or otherwise threatened. He admitted touching R. sexually in the house, about three times in the shed, and about three times in the broken down truck. He admitted she was six years old when he molested her. He admitted he asked her to orally copulate him when his penis was exposed and she refused. That defendant did not admit to each specific sexual allegation does not mean his statement to police did not corroborate R.'s testimony as defendant argues.
Although it is true that the trial court is not the final arbiter of the truth or falsity of the new evidence (Minnick, supra, 214 Cal.App.3d at p. 1482), the court here properly considered the particular facts of the case as well as the credibility of R.'s retraction and determined her subsequent, "recanting" testimony at the hearing on the motion for a new trial was not worthy of belief. On this record, we cannot say the court abused its discretion in so finding. Nor did the court err in concluding it was not reasonably probable defendant would have received a different result upon retrial had the jury considered R.'s less than credible recantation. The court, then, did not err in denying defendant's motion for new trial.
II
Corpus Delicti
Defendant next contends there is insufficient evidence of the corpus delicti to support the four convictions of lewd acts on R. Although he admitted during the police interrogation he touched R.'s vagina with his hand approximately eight times, when asked at trial whether defendant touched her vagina with his hand R. responded, "No." Based on her testimony, defendant claims the jury convicted him of lewd acts on R. solely on his out-of-court statements, which is prohibited by law. We disagree and conclude there is sufficient independent evidence of the corpus delicti for the four lewd act convictions.
The corpus delicti rule requires evidence a crime occurred independent of a defendant's statements. (People v. Ledesma (2006) 39 Cal.4th 641, 721, 734.) "The independent evidence may be circumstantial, and need only be 'a slight or prima facie showing' permitting an inference of injury, loss, or harm from a criminal agency." (People v. Alvarez (2002) 27 Cal.4th 1161, 1181 ["the modicum of necessary independent evidence of the corpus delicti, and thus the jury's duty to find such independent proof, is not great"].) "The inference need not be 'the only, or even the most compelling, one . . . [but need only be] a reasonable one.' " (People v. Jones (1998) 17 Cal.4th 279, 301-302, original italics.) The independent proof, moreover, need not establish the crime beyond a reasonable doubt. (Id. at p. 301.) Once that modicum of independent evidence is established, "the defendant's statements may be considered to strengthen the case on all issues." (People v. Alvarez, supra, at p. 1181.)
Section 288 provides in relevant part that "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." (§ 288, subd. (a).) The statute "is violated by 'any touching' of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child." (People v. Martinez (1995) 11 Cal.4th 434, 452 (Martinez).)
"[A] lewd or lascivious act can occur through the victim's clothing and can involve 'any part' of the victim's body." (Martinez, supra, 11 Cal.4th at p. 444.) Thus, "contact with the bare skin or 'private parts' of the defendant or the victim" is not required. (Ibid.) For multiple counts of lewd conduct, like defendant was convicted of here, "separate evidence is not required as to each individual count to establish the corpus delicti; rather, evidence that multiple molestations took place" is sufficient. (People v. Tompkins (2010) 185 Cal.App.4th 1253, 1260 (Tompkins).)
When viewing the evidence in the light most favorable to the prosecution, as we must (Tompkins, supra, 185 Cal.App.4th at pp. 1261-1262), we conclude sufficient evidence establishes the slight showing necessary under the corpus delicti rule to infer defendant touched R. on multiple occasions with the requisite lewd intent.
While R. did testify defendant did not touch her vagina with his hand like he admitted doing to the officers, she also testified he would sometimes force her to put her mouth on his penis. Under section 288, acts constituting other sexual offenses can qualify as a lewd or lascivious act under the statute. (§ 288, subd. (a).) R.'s testimony alone was sufficient evidence of the corpus delicti of a lewd act based on such occasions. (People v. Maxwell (1979) 94 Cal.App.3d 562, 577 [testimony of single witness sufficient to prove crime committed]; Evid. Code, § 411.)
R. also testified defendant would often remove her pants. A reasonable inference from such testimony is defendant would have to touch her body to remove her clothes in order to do sexual acts to her. The prosecutor argued to the jury that pulling down R.'s pants qualified as lewd acts, and the evidence presented at trial supported such a theory.
R. also reported defendant would get on top of her and move around like two people who love each other. Sometimes he would have his clothes on, and sometimes he would have his clothes off. When these events occurred, parts of their bodies were clearly touching in a sexual manner.
Defendant's contention the only evidence of lewd touching was based on defendant's extrajudicial statements to police because, in his view, it is unclear what R. meant by "getting on top of her and moving around"—whether sexual intercourse or simulated sex—is not persuasive. He appears to misapprehend the applicable standard of review by considering the evidence in the light most favorable to himself rather than the judgment. (Tompkins, supra, 185 Cal.App.4th at pp. 1261-1262.)
R. reported and testified to multiples times when defendant put his penis in her vagina. She also testified he would move around on top of her when clothed. A reasonable inference from such testimony is there were times when defendant had sexual intercourse with her and times when he merely simulated having sex with her. The latter is sufficient to establish the corpus delicti for the lewd acts convictions.
We note that under section 954, a defendant may be convicted of multiple counts based on the same conduct, although section 654 precludes multiple punishments. (Tompkins, supra, 185 Cal.App.4th at p. 1262.) Here, the trial court stayed defendant's punishment for the four section 288, subdivision (a) convictions under section 654 after finding they were based on the same operative facts as the sexual intercourse counts. --------
We find defendant's argument that R.'s testimony was too generic and not specific enough to constitute sufficient evidence likewise without merit. She testified the assaults happened 100 times or more, including when they were unclothed and clothed. On the occasions both were clothed, their private parts did not touch each other. On other occasions, when he had his clothes off, she could see his penis. On the last occasion, before she was placed in foster care, both she and he were clothed. She reported to Officer Rust the molestations began on her sixth birthday in 2011, and ended when she went into her foster home in October 2013. She testified consistently with what she told Officer Rust, i.e., she was six when defendant assaulted her, and he stopped when she was placed in foster care. R.'s testimony was sufficient to establish defendant molested her on multiple occasions when she was six and seven years old, the time period charged in the information. (Tompkins, supra, 185 Cal.App.3d at p. 1260 ["evidence that multiple molestations took place will establish the corpus delicti for multiple counts"].) Her testimony and her statements to which the officers testified specified the type of conduct, its frequency, and confirmed the conduct occurred during the charged period. "Nothing more is required to establish the substantiality of the victim's testimony in child molestation cases." (People v. Jones (1990) 51 Cal.3d 294, 316.)
R. further testified defendant told her not to tell anyone about what he was doing to her. In fact, he told her more than once not to disclose the abuse. She also reported defendant would buy her things as long as she did not say anything. Such evidence circumstantially showed defendant had the requisite sexual intent to violate section 288, subdivision (a). (Martinez, supra, 11 Cal.4th at p. 445 [relevant factors in assessing presence of intent include coercion or bribery to avoid detection].)
Cumulatively, the evidence and testimony presented at trial was sufficient to raise reasonable inferences of the corpus delicti of the multiple lewd acts offenses, apart from defendant's extrajudicial statements he touched R.'s vagina eight times.
III
Abstracts of Judgment
The People contend the abstracts of judgment contain several clerical errors that should be corrected on appeal. According to the People, the abstract of judgment for the indeterminate terms erroneously reflects the offenses in counts 1, 3, 5, and 7 as "sodomy" whereas defendant was found guilty of "sexual intercourse" with a child under section 288.7, subdivision (a). Both of the abstracts of judgment also fail to note the court's order prohibiting R. from visiting defendant in prison.
"An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize. [Citation.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.) On appeal, we may correct an abstract of judgment that does not accurately reflect the oral judgment of the sentencing court. (Ibid.)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare amended abstracts of judgment that reflect defendant was convicted of sexual intercourse with a child under section 288.7, subdivision (a) for counts 1, 3, 5, and 7, and the court prohibited R. from visiting defendant in prison. The court shall forward the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
NICHOLSON, J. We concur: RAYE, P. J. MURRAY, J.