Opinion
E064556
01-26-2017
THE PEOPLE, Plaintiff and Respondent, v. LUIS GILBERT SANCHEZ, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Allison Hawley, and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI900528) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Allison Hawley, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Luis Gilbert Sanchez of 29 offenses relating to sexual acts he performed with his stepdaughter over a three-year period, beginning when she was five years old. The trial court sentenced him to state prison for a total term of 366 years eight months to life. On appeal, he challenges the sufficiency of the evidence supporting certain convictions and the court's sentence. Finding no errors, we affirm.
I. PROCEDURAL BACKGROUND AND FACTS
The victim, B. (born in 2001) was defendant's stepdaughter. On February 23, 2009, mother discovered that defendant had been performing sexual acts with B. and contacted the police. On March 10, 2009, she gave a computer to Sergeant Danielle Boldt and Detective Joshua Moody of the San Bernardino County Sheriff's Department and allowed them to search the family residence. Detective Brian Swan of the San Bernardino County Sheriff's High Tech Crime Detail conducted a forensic examination of the computer and found files containing photographs and video recordings of B. in various costumes and postures, and defendant engaged in sex acts with her. Some of the files contained data indicating when the photographs were taken. One video was of mother and defendant. All of the videos and photos were taken either in the couple's apartment in Apple Valley or their house in Victorville. Defendant was interviewed by law enforcement. He admitted to watching pornography with B. and performing sex acts with her. Defendant stated that he engaged in "messy" sex with mother, where she would get dressed up in "formal attire or latex attire" and he would "get her messy" with cake batter, whipped cream, or chocolate syrup, as a form of degradation, and then they would have sex. Engaging in "messy" conduct aroused defendant.
On August 24, 2015, a third amended information charged defendant with committing 20 counts of oral copulation with a child under 10 years of age (Pen. Code, § 288.7, subd. (b) [counts 1-12, 14-15, 17-20, 22, 24]); five counts of lewd acts with a child (§ 288, subd. (a) [counts 13, 16, 21, 23, 25]); one count of sexual intercourse with a child under 10 years of age (§ 288.7, subd. (a) [count 26]); one count of sodomy with a child under 10 years of age (§ 288.7, subd. (a) [count 27]); one count of possession of child pornography (§ 311.11, subd. (a) [count 28]); and one count of exhibiting harmful matter to a child (§ 313.1, subd. (a) [count 29]). The alleged victim in each offense was B., and all offenses were alleged to have been committed between July 30, 2007, and February 23, 2009, most on specific dates within that period.
All further statutory references are to the Penal Code unless otherwise noted.
At trial, B. testified that she was under five years old when mother married defendant. On the day mother discovered what defendant had been doing to B., B. was sitting on defendant's lap watching pornography. B. testified that she would dress up (usually in her mom's black leather dress), defendant would pour cake batter over her or put handcuffs on her, and then she would put her mouth on defendant's penis and orally copulate him. B. recalled that defendant tried to put his penis inside her vagina and her anus. Dr. Mark Massi, a forensic pediatrician, examined B. and testified that his findings were consistent with vaginal penetration.
The jury convicted defendant of all charges. The trial court sentenced defendant to consecutive indeterminate life terms with minimums of 15 years for counts 1 through 12, 14, 15, 17 through 20, 22, and 24; consecutive indeterminate life terms with minimums of 25 years for counts 26 and 27; a consecutive determinate term of eight years for count 13; consecutive terms of two years for counts 16, 21, 23, and 25; and a consecutive term of eight months for count 28. The aggregate sentence was life with a minimum term of 366 years eight months.
II. DISCUSSION
A. Sufficiency of the Evidence.
Defendant contends the evidence is insufficient to support his conviction of nine counts (counts 1-6, 8, 9, 11) of oral copulation with a child under 10 years of age (§ 288.7, subd. (b)). We disagree.
Defendant acknowledges that he erroneously included count 25 (lewd acts with a child) in the section in his opening brief.
As recognized in People v. Jones (1990) 51 Cal.3d 294, 305, "[c]hild molestation cases frequently involve difficult, even paradoxical, proof problems. A young victim . . . assertedly molested over a substantial period by a parent or other adult residing in his home, may have no practical way of recollecting, reconstructing, distinguishing or identifying by 'specific incidents or dates' all or even any such incidents. (Indeed, even a mature victim might understandably be hard pressed to separate particular incidents of repetitive molestations by time, place or circumstance. . . .)"
People v. Jones reiterated the general principles that "[a] judgment must be supported by substantial evidence in light of the whole record" (People v. Jones, supra, 51 Cal.3d at p. 313) and "[t]he 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.]" (Id. at p. 314; see People v. Rangel (2016) 62 Cal.4th 1192, 1212-1213.)
Applying those general principles in the context of sexual crimes against a child, People v. Jones said: "[I]n determining the sufficiency of generic testimony, we must focus on factors other than the youth of the victim/witness. Does the victim's failure to specify precise date, time, place or circumstance render generic testimony insufficient? Clearly not. As many of the cases make clear, the particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction. [Citations.] [¶] The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (People v. Jones, supra, 51 Cal.3d at pp. 315-316, original italics.)
In the present case, defendant was charged with, inter alia, nine counts of oral copulation with a child under 10 years of age (count 1 [July 30, 2007]; count 2 [August 27, 2007]; count 3 [September 13, 2007]; count 4 [September 20, 2007]; count 5 [October 23, 2007]; count 6 [November 12, 2007]; count 8 [February 6, 2008]; count 9 [March 12, 2008]; and count 11 [May 24, 2008]). In support of these charges, the prosecutor offered the testimony of B., the statements made by defendant during his interview, and various photographs and videos of B. dressed in certain clothes, wearing makeup, posing (sometimes) in a bathtub, and having cake batter poured on her head. Defendant was convicted as charged. The photographs and videos established the dates of these charges; however, they do not depict B. orally copulating defendant. Defendant, therefore, contends that the evidence is insufficient to support these convictions of violating section 288.7, subdivision (b).
Count 1: The prosecutor introduced 21 photographs and two videos of B. in what appears to be a two-piece bathing suit, posing in a bathtub with green cake batter poured on her head.
Count 2: The prosecutor introduced a video of B. sitting at a table with a plate of cake batter, putting her face in the batter several times.
Count 3: The prosecutor introduced seven photographs of B. in makeup and earrings, wearing the black leather dress, posing on a bed.
Count 4: The prosecutor introduced 26 photographs and five videos showing B. wearing the black leather dress, makeup and a necklace, posing on a couch and then in a bathtub, with cake batter on her and cake batter being thrown on her by defendant.
Count 5: The prosecutor introduced 46 photographs and one video showing B. in heavy makeup and earrings, posing in the living room and then in the bathtub, with large amounts of pink cake batter on her.
Count 6: The prosecutor introduced 22 photographs and two videos showing B. in a white twopiece dress with jewelry and makeup, posing in a bathroom and a bathtub and being covered in white cake batter.
Count 8: The prosecutor introduced seven photographs and one video showing B. posing in a bedroom and outside a bathroom with a plate of white cake batter and putting the batter all over her face.
Count 9: The prosecutor introduced two photographs and one video showing defendant masturbating and ejaculating on B.'s face.
Count 11: The prosecutor introduced eight photographs and three videos showing B. posing with a plate of cake batter and with the cake batter on her face.
We disagree. The testimony of B., coupled with the numerous other instances of oral copulation of defendant by B., and the circumstances in which the other instances were committed, allowed the jury to infer defendant engaged in the same conduct under similar circumstances on the dates identified in the photographs and videos. (Jones, supra, 51 Cal.3d at pp. 315-316.) According to B., she dressed up in her mother's black leather dress, which defendant provided, and when she wore that dress she would put her mouth on defendant's penis. She testified that defendant prepared cake batter and poured it on her when she was either in the dress or in her own clothes wearing makeup. She explained that when defendant poured the cake batter on her, or when he used the black handcuffs on her, she put her mouth on his penis. She also testified that when defendant dressed her up, applied makeup to her face, and posed her, she would put her mouth on his penis "[m]ost of the time" because that was why he dressed her up and applied makeup to her face. She estimated that she put her mouth on his penis "[a]lmost every day," beginning when she was four years old.
Defendant was interviewed by Detective Moody. In his interview, defendant admitted that he watched pornography with B. and checked out "ultimate wet and messy" pornography on a website where women would be degraded by "getting them messy with food products, mud, water, um, that, and also the blow jobs . . . ." Defendant said he had a "messy fetish" he engaged in with his wife; he "couldn't do it with her if she was just dressed normal." When defendant's wife got dressed up with makeup, defendant would get her messy with various food products like cake batter as a form of degradation. This conduct sexually aroused him. He admitted doing the same thing with B. When he felt "horny" he would tell B., "'We have a chance, now, if you want to do this.'" He also claimed that she would ask to do it. He would mix up the cake batter while B. did her hair, put on makeup and got dressed up. She would sit in the bathtub as he poured the cake batter on her and she played around in it. Watching B. playing in the cake batter would give defendant an erection. B. would orally copulate him for a minute or two, until she was uncomfortable, then he would "do it [him]self" and ejaculate on her face. Defendant admitted that he had engaged in this behavior with B. for about three years, since she was four years old. He further admitted that he did it with B. about 10 times in 2007, about 15 times in 2008 (three times involving cake batter), and eight times from December 2008 to the date of his interview in March 2009. He admitted that B. orally copulated him on three separate occasions when her hands were handcuffed behind her back. Overall, defendant said that he had inappropriate contact with B. at least 20 times over the course of three years. He acknowledged there was a lot of oral sex, that he and B. tried intercourse but "[he] was more into blow jobs" and penetration was difficult because her vagina "was just too tight."
It is undisputed that defendant's conduct with B. mirrored his conduct with his wife. There is ample evidence that defendant engaged in messy sex wherein his wife or B. would wear specific clothing and makeup, engage in provocative poses, and have cake batter poured on them. Defendant admitted that such circumstances were precursory to oral copulation and his ejaculating on them. Given this evidence, the jury could properly infer that when this conduct (either precursory or ejaculating on B.'s face) depicted in the photographs and videos was engaged in, oral copulation was engaged in as well. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1160 ["Where . . . the defendant's physical conduct might be consistent with a nonsexual purpose, the jury can look to surrounding circumstances and rely on them to draw inferences about his intent."].) Given B.'s testimony and defendant's statements during his interview, the primary purpose of the photographs and videos was to establish the date upon which the offenses were committed.
Upon consideration of the whole record, and based on defendant's focus on messy sexual activities and similar methods of engaging in them with both his wife and B., the jury had sufficient evidence from which it could conclude that defendant had B. orally copulate him on the dates identified in the photographs and videos.
B. Section 654.
Defendant contends the trial court violated section 654 by imposing separate and consecutive sentences on lewd acts (ejaculating on B.'s face) charged in counts 13, 16, 21, and 23, because they were a direct result of the oral copulations charged in 12, 15, 20, and 22, respectively. He also claims that counts 17, 18, and 19, in which he had B. orally copulate him in different positions on the same day and location, were part of the same incident and therefore section 654 prohibited consecutive sentences on counts 18 and 19. We reject defendant's contentions.
Counts 12 and 13 are based on conduct occurring on July 23, 2008. The photographs and video contained in exhibit 12 show B. orally copulating defendant between 02:10:15 and 02:11:07. Exhibit 13 shows defendant ejaculating on B.'s face at approximately 02:30:04.
Counts 15 and 16 are based on conduct occurring on September 9, 2008. The photographs and video contained in Exhibit 15 show B. orally copulating defendant between 01:16:26 and 01:16:56. Exhibit 16 shows defendant ejaculating on B.'s face at approximately 01:21:16.
Counts 20 and 21 are based on conduct occurring November 12, 2008. The photographs and video contained in Exhibit 20 show B. in the tub, covered with batter, and with defendant's penis in her mouth at approximately 07:07:06. Exhibit 21 shows defendant ejaculating on B.'s face, as she stands in the bathtub covered with batter, at approximately 07:12:48.
Counts 22 and 23 are based on conduct occurring on December 23, 2008. The photographs and video contained in Exhibit 22 show B. orally copulating defendant between 07:53:37 and 07:56:33. Exhibit 23 shows defendant ejaculating on B.'s face at approximately 07:59:51.
Counts 17, 18, and 19 are based on conduct occurring on November 12, 2008. The photographs and video contained in Exhibit 17 show B. lying on the bed on her stomach with her hands handcuffed behind her back orally copulating defendant at approximately 06:06:05. The video contained in Exhibit 18 shows B. lying on the bed on her back as defendant is straddling her while she orally copulates him. There are no photographs depicting this activity and there is no time stamp on the video that was also taken on November 12, 2008. The photographs and video contained in Exhibit 19 show B. lying on the bed on her back as she orally copulates defendant, who is standing nearby. The activity occurred from approximately 06:14:53 to 06:17:06. --------
Section 654 limits "punishment for multiple convictions arising out of either an act or omission or a course of conduct deemed to be indivisible in time . . . wherein the accused entertained a principal objective to which other objectives, if any, were merely incidental." (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. omitted; see People v. Jones (2012) 54 Cal.4th 350, 359-360 [where the defendant's convictions were based on a single act and objective, § 654 prohibits multiple punishment].) However, section 654 does not preclude separate punishment for convictions of multiple sex offenses, even where the sex offenses occurred during the same sexual encounter and against the same victim. (People v. Perez (1979) 23 Cal.3d 545, 553-554 (Perez); accord, People v. Harrison (1989) 48 Cal.3d 321, 334-338 (Harrison); People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6 (Scott); People v. Alvarez (2009) 178 Cal.App.4th 999, 1006-1007 (Alvarez); People v. Castro (1994) 27 Cal.App.4th 578, 584-585.) "We apply the substantial evidence standard of review to the trial court's implied finding that a defendant harbored a separate intent and objective for each offense." (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414.)
In Perez, over a 45- to 60-minute period, the defendant orally copulated his victim, sodomized her, forced her to orally copulate him twice, had vaginal intercourse with her twice, and forcibly inserted a metal tube into both her rectum and vagina. (Perez, supra, 23 Cal.3d at p. 549.) The defendant contended that section 654 precluded punishment for more than one of the sex offenses because they were all committed with the single intent and objective of obtaining sexual gratification. (Perez, supra, at p. 550.) The Perez court rejected this contention, explaining that "[a] defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act. We therefore decline to extend the single intent and objective test of section 654 beyond its purpose to prelude punishment for each such act." (Id. at p. 553.)
In Harrison, the defendant was convicted of three counts of forcible genital penetration (§ 289, subd. (a)) based on one incident where, over a seven- to 10-minute period, he inserted his finger into his victim's vagina three times. (Harrison, supra, 48 Cal.3d at pp. 324-326.) The court concluded "it is defendant's intent to commit a number of separate base criminal acts upon his victim, and not the precise code section under which he is thereafter convicted, which renders section 654 inapplicable." (Id. at pp. 337-338.)
In Scott, the court agreed with the holdings of Perez and Harrison that "multiple 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." (Scott, supra, 9 Cal.4th at p. 344, fn. 6; accord, Alvarez, supra, 178 Cal.App.4th at p. 1006.) "[C]ourts no longer assume that fondling offenses are 'incidental' to other sex crimes within the meaning of section 654, or that they are exempt from separate punishment. The newer cases tend to focus on evidence showing that the defendant independently sought sexual gratification each time he committed an unlawful act." (Scott, supra, at pp. 347-348, fn. 9.) The Scott court also rejected the defendant's proposed limit on the number of convictions that can arise from a single sexual encounter under section 288, as, "[u]nder defendant's approach, 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. In light of the special protection afforded underage victims, we cannot conceive that the Legislature intended this result." (Scott, supra, at p. 347; see Alvarez, supra, at p. 1006.)
In this case, defendant is not entitled to have his convictions on counts 13, 16, 21, and 23 stayed pursuant to section 654, because substantial evidence shows all four convictions were based on four distinct and separate acts (defendant masturbating and ejaculating on B.'s face) from those charged in counts 12, 15, 20, and 22 (B. orally copulating defendant). According to the evidence, there was a significant amount of time (anywhere from three and 20 minutes) that had lapsed between the acts of oral copulation, and defendant masturbating and intentionally positioning B. so that he could ejaculate on her face while filming the act. The acts of ejaculating on B.'s face constituted additional lewd acts unassociated with the acts of oral copulation. Defendant's objective in ejaculating on B.'s face was one of degradation and humiliation, separate from the objective of physical pleasure. According to the photographs and videos, B.'s oral copulation of defendant was insufficient to result in his ejaculation on her face. Since there is substantial evidence defendant was convicted of eight sex offenses based on eight distinct, separate acts, he is not entitled to have his sentences in counts 13, 16, 21, and 23 stayed pursuant to section 654. (Perez, supra, 23 Cal.3d at pp. 550, 553.)
Likewise, section 654 does not preclude separate punishment for counts 17, 18, and 19, all acts of oral copulation, albeit with B. in different positions on a bed, on November 12, 2008. Initially, B. was handcuffed on her stomach, then defendant was straddling her, and finally, she was lying on her back with her head hanging over the end of the bed and defendant standing. Because defendant placed B. in different positions and filmed each of the three separate acts of oral copulation, the trial court could reasonably infer that each change in position would have interrupted the oral copulation, however briefly, and thus constituted a separate violation of section 288.7, subdivision (b). As such, consecutive sentencing on counts 17, 18, and 19 was proper. "[N]o special treatment is to be afforded to a defendant under section 654 simply because he chose to repeat, rather than to diversify or alternate, his many crimes. [Citations.]" (Harrison, supra, 48 Cal.3d at p. 337.)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J. We concur: RAMIREZ
P. J. MCKINSTER
J.