Opinion
G043522 Super. Ct. No. 09CF0733
09-01-2011
THE PEOPLE, Plaintiff and Respondent, v. BENITO EVARISTO RAYO SR., Defendant and Appellant.
Robert E. Boyce, 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, and Kevin Vienna, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Dan McNerney, Judge. Affirmed.
Robert E. Boyce, 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, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
Benito Evaristo Rayo, Sr., appeals from a judgment after a jury convicted him of aggravated sexual assault of a child and three counts of committing a lewd act on a child under the age of 14 years, and found true he had substantial sexual conduct with the victim. Relying on Penal Code section 654, Rayo argues the trial court erroneously failed to stay the sentences on the three counts of committing a lewd act on a child under 14 years of age. We disagree and affirm the judgment.
FACTS
Rayo and his wife, I.M., lived in a one-bedroom apartment with their three children, including then 11-year old A.R. I.M.'s sister and her family also lived in the apartment and slept in the living room. Later, I.M.'s other sister, T.M., moved in and slept in the bedroom with Rayo and his family. Rayo and his wife began sleeping in the living room.
One evening in late 2008, A.R. went to bed while her father, uncle, and others drank. A.R. woke up when she felt her father rub her stomach. A.R. turned over and her father said he would not do it again. I.M. eventually learned what happened and she spoke with Rayo, but she did not ask him to leave.
In early 2009, while I.M. was working the evening shift, A.R. was lying on her mother's bed when Rayo came into the bedroom. Rayo got on the bed and touched and sucked A.R.'s breasts. He also touched her "in [her] vagina" through her clothes.
A couple weeks later, Rayo showed A.R. a pornographic movie. A.R. turned away because she did not want to watch the movie.
About one week later, while I.M. was at work, A.R. was sleeping on her mother's bed with her younger brother. Rayo, who was naked, got on top of her and tried to take off A.R.'s clothes. Despite her best efforts to fight her father off, Rayo managed to take off her pajama bottoms and underpants. Rayo slid his penis in his daughter's vagina. Rayo kissed A.R. on the mouth. He lifted up A.R.'s shirt and kissed her breasts and touched her breasts with his hands. Eventually, A.R. felt wetness inside her vagina.
A few days later, A.R. was lying on the bed fully clothed when Rayo came in and got on top of her. Rayo, who was also clothed, was thrusting up and down on his daughter. T.M. walked in the bedroom and Rayo, who was out of breath, quickly got off A.R. T.M. told another sister what she had witnessed and that sister called the police. I.M. eventually learned what had happened and she told Rayo to move out of the apartment.
Officer Jessica Quintana interviewed both A.R. and Rayo. After Quintana advised Rayo of his Miranda rights, Rayo said he accidentally grabbed one of A.R.'s breasts when pulling back a blanket, and he was playing with A.R. when T.M. walked in the bedroom. He otherwise initially denied all the other touching. He eventually admitted kissing her breast, digitally penetrating her, and putting his penis inside her vagina.
Miranda v. Arizona (1966) 384 U.S. 436.
The jury watched a videotape of the interview.
Child Abuse Services Team Member Adriana Ball interviewed A.R. She told Ball that Rayo touched her stomach, raped her, laid on top of her and thrust himself into her while he was clothed, showed her a pornographic movie, and sucked her breasts on two occasions.
An information charged Rayo with aggravated sexual assault of a child, rape (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2)) (count 1), and three counts of committing a lewd act upon a child under the age of 14 years (§ 288, subd. (a)) (count 2-kissing, count 3-touching, and count 4-masturbation). The information alleged Rayo had substantial sexual conduct with a child within the meaning of section 1203.066, subdivision (a)(8).
All further statutory references are to the Penal Code.
At trial, A.R. testified it was "like weeks" between the first incident and the last incident. Both parties offered medical evidence concerning the issues at trial. During his opening statement and closing argument, Rayo admitted he committed counts 2, 3, and 4 and only disputed count 1.
The jury convicted Rayo of all counts and found true the enhancement. The trial court sentenced Rayo to prison for 23 years to life as follows: 15 years to life on count 1; a consecutive term of six years on count 2; and a consecutive term of two years on count 3. The court imposed a concurrent term of six years on count 4.
DISCUSSION
Relying on section 654, Rayo argues the trial court erroneously failed to stay the sentences on counts 2, 3, and 4 pursuant to section 654 because count 2 (kissing) includes conduct incidental to count 1, and counts 3 (touching) and 4 (masturbation) include conduct charged in count 1. Nonsense.
Section 654 provides that "[a]n 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." Section 654 "applies when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction." (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) Generally, whether a course of conduct is a divisible transaction depends on the intent and objective of the actor: "If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
"However, the rule is different in sex crime cases. Even where the defendant has but one objective—sexual gratification—section 654 will not apply unless the crimes were either incidental to or the means by which another crime was accomplished. [Citations.] [¶] But, section 654 does not apply to sexual misconduct that is 'preparatory' in the general sense that it is designed to sexually arouse the perpetrator or the victim. [Citation.] That makes section 654 of limited utility to defendants who commit multiple sex crimes against a single victim on a single occasion. As our Supreme Court has stated, '[M]ultiple sex acts committed on a single occasion can result in multiple statutory violations. Such offenses are generally "divisible" from one another under section 654, and separate punishment is usually allowed. [Citations.]' (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6 . . . [(Scott)].) If the rule were otherwise, 'the clever molester could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act.' [Citation.] Particularly with regard to underage victims, it is inconceivable the Legislature would have intended this result. [Citation.]" (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006 (Alvarez).)
Here, Rayo did not object to his sentence pursuant to section 654, and thus, the trial court did not perform the section 654 analysis. He did request, however, the trial court sentence him to concurrent terms on counts 2, 3, and 4 because they "were not independent of each other at all [sic] they were all the same crime." In rejecting his request, the court reasoned "it was not an isolated incident" and "after the first incident" where A.R. told her mother, he continued to sexually abuse her. We may review Rayo's section 654 claim under the substantial evidence test despite his failure to object on section 654 grounds. (People v. Hester (2000) 22 Cal.4th 290, 295.)
Section 288, subdivision (a), punishes "[a]ny person who willfully and lewdly commits any lewd or lascivious act . . . 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 . . . ." A violation of section 288, subdivision (a), requires a touching of the victim. (People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez).) The touching can involve any part of the victim's body or clothing, need not be sexual in character, and can be innocent. (Id. at pp. 444, 447.) The harmfulness of a violation of section 288, subdivision (a), derives from the intent for sexual gratification, not the nature of the touching, though the nature of the touching might be relevant to the perpetrator's intent. (Martinez, supra, 11 Cal.4th at p. 444 ["[T]he 'gist' of [section 288, subdivision (a)] has always been the defendant's intent to sexually exploit a child, not the nature of the offending act"].)
Preliminarily, we note Rayo does not dispute there was sufficient evidence supporting all his convictions. Count 1 charged Rayo with aggravated sexual assault of a child, rape.
Count 2
Count 2 charged Rayo with committing a lewd act upon a child under the age of 14 years, kissing. A.R. testified that after her father put his penis inside her vagina, he kissed her on the mouth. Clearly, the subsequent kissing did not facilitate the rape. Nor was the kissing incidental to the rape. Kissing is an intimate act that has a sexually exploitive nature. (In re R.C. (2011) 196 Cal.App.4th 741, 751.) This evidence reasonably supports the conclusion Rayo kissed A.R. for the purpose of his own sexual arousal. Alvarez, supra, 178 Cal.App.4th 999, is instructive. In Alvarez, another panel of this court concluded kissing before penetration and fondling was a separate and distinct act designed to arouse defendant and warranted multiple punishments. (Id. at pp. 1006-1007.)
Rayo cites to People v. Kirk (1990) 217 Cal.App.3d 1488, to support his claim. In Kirk, the court concluded section 654 prohibited separate punishments for a single course of conduct where defendant touched the victim's breasts, French kissed her, and put his mouth on her breasts before having sexual intercourse with her. (Id. at pp. 1491, 1496.) The California Supreme Court has stressed, however, the issue is whether defendant independently sought sexual gratification each time he committed the unlawful act. (Scott, supra, 9 Cal.4th at p. 348, fn. 9; People v. Perez (1979) 23 Cal.3d 545, 553-554.)
Counts 3 and 4
Count 3 charged Rayo with committing a lewd act upon a child under the age of 14 years, touching. A.R. testified that during the first incident, Rayo rubbed her stomach. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380 [babysitter rubbed victim's lower back, stomach, and thigh].) She also testified that during the last incident he got on top of her and thrust himself into her. T.M. confirmed this. Neither of these incidents occurred on the same day of the rape, and either was sufficient to convict Rayo of count 3. Additionally, after Rayo put his penis inside A.R.'s vagina, he lifted up her shirt and kissed her breasts and touched her breasts with his hands. This conduct could provide an independent basis to conclude Rayo unlawfully touched his daughter for his own sexual gratification.
Count 4 charged Rayo with committing a lewd act upon a child under the age of 14 years, masturbation. "'[M]asturbation' includes any touching or contact of the genitals of either the victim or the offender, whether over or under clothing, with the requisite intent." (People v. Lopez (2004) 123 Cal.App.4th 1306, 1312.) A.R. testified that weeks before her father raped her, Rayo got onto the bed touched and sucked her breasts, and touched her "in her vagina" through her clothes. This conduct weeks before the rape was sufficient evidence to convict Rayo of count 4.
Counts 2, 3, & 4
Relying on his admission he committed counts 2, 3, and 4, Rayo claims these counts all arise from the same course of conduct, the rape. He adds that the prosecutor did not elect specific conduct to serve as the basis for counts 2, 3, and 4. That is not section 654 argument; it is a unanimity argument. The proper inquiry under section 654 is whether there was sufficient evidence supporting the imposition of multiple punishments. As we explain above, there is overwhelming evidence supporting the imposition of multiple punishments.
The trial court instructed the jury with CALCRIM No. 3500, "Unanimity," as to counts 2 and 3.
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DISPOSITION
The judgment is affirmed.
O'LEARY, ACTING P. J.
WE CONCUR:
MOORE, J.
ARONSON, J.