Opinion
G043823 Super. Ct. No. 07CF3821
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. GILBERTO RANGEL, Defendant and Appellant.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Carla M. Singer, Judge. Affirmed in part, reversed in part, and remanded.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was sentenced to 280 years to life in prison for committing numerous sex crimes against three young girls. He does not challenge the underlying validity of his convictions but rather claims that, as to one of the victims, there is insufficient evidence to support the jury's finding he personally used a dangerous or deadly weapon during some of the crimes he committed against her. Finding this claim meritorious, we will reverse the jury's weapon-use finding on four of the counts of which appellant was convicted. Due to an undisputed sentencing error, we will also remand the matter for resentencing. In all other respects, we affirm.
FACTS
Between 2002 and 2006, appellant lived with his sister Martha and her family, which included two girls under the age of 10. Over that period, he sexually molested the girls on a variety of occasions. On January 1, 2007, Martha learned appellant was planning on taking the girls to Mexico. Distrustful of his motives, she insisted he move out of her apartment.
We need not recount the details of the molestation, because appellant does not challenge his convictions relating to these two victims.
A short time later, appellant began renting a room from Maricela C. in Santa Ana. Maricela had four children, including Nancy, who was seven years old when appellant moved in. Before long, appellant began sexually molesting Nancy. As explained more fully below, the molestation occurred over a period of several months and included acts of oral copulation, intercourse and sodomy.
The molestation was finally revealed in November 2007, after another boarder at Maricela's residence saw appellant kissing Nancy inappropriately. After telling Maricela about the incident, the boarder told Nancy's principal at school. The principal then spoke to Nancy, and she reluctantly revealed appellant had been abusing her. Later that day, Nancy underwent a forensic medical examination. Although she did not have any physical signs of being sexually abused, sperm was detected in her vagina.
On November 28, 2007, Nancy was interviewed by a member of the Child Abuse Services Team (CAST). Nancy stated appellant started molesting her soon after he moved into her apartment. He invited her to watch a children's movie in his room, and during the movie, he locked the door and began holding her hand. He then bound her with tape, undressed her, and began kissing her breasts and vagina. Nancy tried to resist, but appellant got on top of her and had sexual intercourse with her. He told Nancy he loved her, and the "white stuff" he left inside her was for having a baby. He also told her he was going to buy curtains for his bedroom, so no one could see inside.
During another incident, appellant picked up Nancy while she was sleeping on the couch and carried her to his room. He appeared to be wearing some kind of mask at the time. Inside his room, appellant repeatedly tried to have anal intercourse with Nancy, but he was unsuccessful because it was too painful for both of them.
Another time, Nancy was dressed in her school uniform early in the morning when appellant instructed her come into his room. He removed his pants and told her to "come over and sit on me." When she refused, he put her hand on his penis and made her move it back and forth until he ejaculated. Appellant told Nancy that if she told her parents anything, he would kill them and her. Appellant was holding a knife and scissors when he made this threat. Consequently, Nancy did not reveal the abuse to her parents.
Nancy told the CAST worker that all told, appellant had sexual intercourse with her six to eight times and made her touch his penis about five times. He also fondled her breasts and ejaculated on them sometimes. In addition, he orally copulated her on more than five occasions and used his fingers to penetrate her vagina at least seven times. One of the acts of digital penetration occurred while Nancy was sitting on a chair in appellant's bedroom. She told appellant to stop because it hurt, but he refused and told her he was never going to stop. On other occasions, appellant showed Nancy child pornography and made her watch him molest her younger cousin Brenda.
In a 15-count information, appellant was charged with committing nine crimes against Nancy. Those nine crimes were all alleged to have occurred between February 1, 2007 and November 19, 2007. As to five of those crimes, it was also alleged appellant personally used a dangerous or deadly weapon and committed the subject offense against more than one victim. Those five crimes were described in the information as follows:
Count 7- Lewd act on a child, based on appellant kissing and touching Nancy's vagina;
Count 8- Lewd act on a child, based on appellant making Nancy touch his penis;
Count 9- Lewd act on a child, based on appellant making Nancy perform oral sex on him;
Count 10- Lewd act on a child, based on appellant touching Nancy's vagina while showing her pornography; and
Count 14- Sodomy on a child under the age of 14 and 10 years younger than appellant.
At trial, Nancy was unable to provide any details regarding any of the charged offenses. When asked if appellant ever showed her any type of weapon, she said no.
In closing argument, the prosecutor argued broadly that since the evidence showed appellant committed the alleged acts against Nancy on multiple occasions, the jurors could rely on any one of those acts to support the subject count, so long as they all agreed on which act it was. For example, regarding the allegation in count 8 that appellant committed a lewd act by making Nancy touch his penis, the prosecutor argued, "Now that happened on numerous occasions." "If you can all agree that he did that at least one time, that's all you have to do for" that count. The prosecutor mentioned the weapon-use allegation only in passing, without referring to any particular incident or act.
In the end, the jury convicted appellant as charged and found true the weapon-use and multiple-victim allegations attached to counts 7 through 10 and 14. As to each of those five counts, the court sentenced appellant to a term of 25 years to life under the one strike law. In addition, the court sentenced appellant to 155 years to life for the other crimes of which he was convicted, bringing his aggregate term to 280 years to life in prison.
DISCUSSION
Appellant contends there is insufficient evidence to support the jury's finding he personally used a dangerous or deadly weapon during each of the crimes alleged in counts 7 through 10 and 14. Because the evidence indicates he showed Nancy the knife and scissors on only one occasion, he argues the allegation can only attach to one of those counts, not all five of them. We agree.
Under the one strike law, a person is eligible for a sentence of 25 years to life if he commits a specified offense, such as lewd act on a child, under two of the circumstances listed in the law. (Pen. Code, § 667.61, subd. (a).) If only one of the circumstances exists, the law provides for a sentence of 15 years to life. (Id., subd. (b).) Appellant does not dispute the application of the multiple-victim circumstance in this case. (Id., subd. (e)(4).) His argument pertains to the second circumstance that was alleged, namely that he "personally used a dangerous or deadly weapon . . . in the commission of [the subject crimes] in violation of section 12022." (Id., subd. (e)(3).)
All further statutory references are to the Penal Code.
Section 12022 provides increased punishment for "[a]ny person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony . . . unless use of a deadly or dangerous weapon is an element of that offense." (§ 12022, subd. (b)(1).)
--------
In People v. Masbruch (1996) 13 Cal.4th 1001, our Supreme Court ruled the weapon-use enhancement in section 12022 can attach to multiple crimes that are committed over the course of a single criminal episode, even if the defendant does not display a weapon in connection with the commission of each particular crime. But in Masbruch, the crimes in question occurred over a period of hours, not months, as in the present case. And although the court ruled the jury may consider a "'video'" of the entire encounter, and not just a "'snapshot'" of the moments preceding the subject offense in deciding whether a gun use occurred, the court made it clear that the control and fear engendered by the initial gun display must continue throughout the entire encounter. (Id. at pp. 1011 & 1012.) In other words, the initial gun display must be shown to have aided in the completion of subsequent crimes by inducing continuous fear in the victim. (Ibid.)
Here, the task of determining whether Nancy was in continuous fear throughout the period over which the subject crimes were carried out is complicated by the fact we do not know when the crimes occurred. The information alleged only generally that they occurred over a nine month period, the prosecutor did not attempt to supply any sort of timeframe, and we have no way of knowing which particular acts the jury relied on in reaching its verdict. That is not a problem with respect to the underlying convictions. (People v. Jones (1990) 51 Cal.3d 294, 316 [generic testimony will suffice to support multiple convictions of child sexual abuse, so long as the victim describes the kind and number of acts, as well as the general time period in which they occurred].) But it does pose an obstacle in terms of establishing the weapon-use allegation.
The Attorney General argues, "The jury reasonably could find that appellant initially displayed the knife to [Nancy] and that is why she never reported the molestations until prompted by her school principal." If by "initially" the Attorney General means during the first alleged instance of abuse that Nancy described in her CAST interview, we cannot agree.
In the interview, Nancy said appellant started doing "stuff" to her right when he moved in to her apartment. She remembered it was around the time her family was putting away their Christmas decorations, in January 2007. More particularly, she said appellant moved in on a Wednesday, and Friday is when he lured her into his room to watch a movie. Nancy then explained how appellant proceeded to bind her with tape and kiss her breasts and vagina. When the interviewer asked Nancy if that was the "first thing" appellant ever did anything to her, she said "yeah." She then explained that appellant did not limit his actions in that regard, but also had sexual intercourse with her.
This evidence belies the Attorney General's claim that Nancy did not recount the acts of molestation in any particular order. And although Nancy provided considerable detail about the first incident (which makes it more likely the jury relied on that incident in reaching its verdict), she did not say anything about appellant having a knife or scissors or any other type of weapon during that encounter. Rather, it was not until after Nancy finished recounting another incident of abuse that she mentioned the particular episode involving the knife and scissors. This suggests appellant did not threaten Nancy with a weapon at the outset of the molestation.
Granted, we do not know for sure when each of the incidents occurred, but that's the root of the dilemma. Given the sheer number of acts alleged (over 20 by Nancy's account) and the expansive timeframe involved (nine-plus months), it would be speculative to conclude Nancy was in a continuous state of helplessness throughout the entire period of molestation because of appellant's one-time weapon display. As a reviewing court assessing the sufficiency of the evidence to support a criminal conviction, we are entitled to draw all reasonable inferences in favor of the judgment, but one thing we cannot do is speculate about possible theories of culpability. (People v. Tran (1996) 47 Cal.App.4th 759, 772.) To survive appellate review, the evidence must be "substantial," meaning reasonable, credible and of such solid value that a rational jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
The evidence of appellant's weapon-use does not measure up to this standard as to all of the counts at issue. While there is ample evidence appellant used a dangerous or deadly weapon in the commission of one of the alleged lewd acts, namely the act of making Nancy touch his penis as alleged in count 8, the record does not contain substantial evidence to support the jury's finding he used such a weapon during the four other crimes at issue. Therefore, as to counts 7, 9, 10 and 14, we will reverse the jury's true finding on the weapon-use allegation. That will mandate a reduction in appellant's sentence on counts 7, 9 and 10 from 25 to 15 years to life in prison.
As to count 14, appellant was convicted of sodomy in violation of section 286, subdivision (c)(1). The Attorney General concedes that offense is not encompassed in the one strike sentencing scheme. Therefore, the matter must be remanded for the court to resentence appellant on count 14. And since resentencing must occur, it is immaterial that, as the parties recognize, the abstract of judgment erroneously states appellant was sentenced to determinate terms on counts 7 through 14. Following resentencing, a new abstract must be prepared which will replace the current one.
DISPOSITION
The jury's true findings on the weapon-use allegations attendant to counts 7, 9, 10 and 14 are reversed and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J.