People v. Fernandez CA6 ( 2015 )

Filed 2/18/15 P. v. Fernandez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H038618
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. F1138192)
v.
JOSE MANUEL FERNANDEZ,
Defendant and Appellant.
A jury found defendant Jose Manuel Fernandez guilty of four counts of
committing lewd or lascivious acts on a child (Pen. Code, § 288, subd. (a))1 and seven
counts of committing lewd or lascivious acts on a child by force, violence, duress,
menace, or fear of immediate and unlawful bodily injury (§ 288, subd. (b)(1)). Defendant
contends the trial court erred by not giving CALCRIM No. 121 or a substantially
equivalent instruction regarding evidence in a foreign language. Defendant also claims
there was insufficient evidence to support certain counts and, alternatively, that his
sentence violates section 654. For the reasons stated here, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
The following is taken from evidence adduced at defendant’s jury trial.
Defendant’s stepdaughter, B. Doe (Doe), lived with him, her mother, and Doe’s four
1
Unspecified statutory references are to the Penal Code.
siblings in Gilroy. At the time of defendant’s arrest in April 2011, defendant was 26 and
Doe was 11 and finishing sixth grade.2
According to Doe’s friend Desiree, in fourth grade Doe came to school with three
hickeys on her neck and told Desiree that defendant gave them to her. Two years later, in
early 2011, Doe reportedly informed Desiree in the school locker room that defendant
would sexually touch Doe. Specifically, Doe told Desiree that defendant would touch
Doe’s “boobs” and vagina, and would grab her hand and put it on his penis.
On April 18, 2011, one of Doe’s brothers mentioned to a social worker at school
that defendant was allegedly having sex with Doe. The next day a social worker
contacted Doe at school and Doe disclosed that defendant had molested her. The social
worker then contacted the police, who took Doe to a police station in Gilroy for an
interview.
Before the police interviewed Doe on April 19, they convinced her to participate
in a “pretext call,” described by police detective Jason Smith as a monitored and recorded
phone call between the victim and a suspect where the police provide guidance regarding
questions to ask. The pretext call between Doe and defendant was in Spanish.3 Doe
stated in the call that she told a friend defendant was touching her. When Doe mentioned
possibly telling her mother, defendant said “[n]o, honey ... you guys will get me in
trouble” and told her “they can put me in jail.” Defendant promised that “I’m not going
to touch you anymore or anything” and asked her to tell her friend that she was lying or
else the friend was going to “get me in trouble, and then who’s going to take care of
everybody?”
2
To protect the anonymity of the victim and other minors in this case, and
meaning no disrespect, we will refer to certain individuals by their first names only.
3
Although they were marked as evidence but never admitted, we rely on the
English language translations of the pretext call and defendant’s interrogation. We will
discuss defendant’s contentions related to the trial court’s jury instructions on this point.
2
Detective Smith then interviewed Doe in English. Doe said defendant never
touched her chest sexually but that when they were together in the family’s house he
would try to kiss her, touch her “private part,” and grab her hand and make her “do stuff”
to his penis. Doe told the detective she did not want to “touch it” and “always tried like
to pull away ... .” Doe said she touched his penis three to four times and that he touched
her private part four or five times. When asked when this would happen, Doe responded,
“[l]ike at th[e] same time when he like, do all that other stuff.” Doe explained that
defendant would “just like start[] hugging me ... and then that’s when he starts doing all
the rest.” Later she said “he would hold me and then he would like start doing himself
too, he would, like, yeah.” Doe indicated that the first incident of sexual touching
occurred in second grade. The most recent incident had happened the previous month,
when defendant pulled Doe’s hair to make her stand up from her bed and then made her
“get on top of him” as he lay on the couch. Regarding the frequency of sexual touching,
Detective Smith asked her if it happened “[o]nce a month, once a year?,” and Doe
ambiguously responded “[y]eah, once, once or twice.”
During Doe’s interview, defendant arrived at the police station and was detained.
Defendant was given a Miranda advisement (Miranda v. Arizona (1966) 384 U.S. 436)
and was interrogated by Detective Smith and Officer Jesus Cortez, who acted both as a
Spanish translator and as an interrogator. When asked about his interactions with Doe,
defendant said he would sometimes hug her but that he did not “do it with bad
intentions.” Later defendant admitted touching Doe’s “butt” on one occasion and that he
might have also accidentally touched her vagina. After further questioning, defendant
eventually said Doe touched his penis approximately three times over his pants and twice
skin-to-skin. Defendant described that he would take her hand and place it on his penis.
He recalled that one such incident occurred in approximately February 2011.
Defendant also admitted touching Doe’s vagina both over her clothes and skin-to-
skin but said it “wasn’t more than three times.” Defendant recalled an incident in
3
December 2010 when he touched Doe’s vagina outside her clothes for three or four
seconds and rubbed up and down. He recounted another incident in January 2011 where
he touched Doe’s vagina over her clothes in her bedroom. A third touching over clothing
occurred one night in the living room while they were standing. Defendant said that he
touched Doe’s vagina at least one time skin-to-skin while they were standing in his
bedroom.
At the end of the interrogation, Detective Smith told defendant that he would give
him the opportunity to write Doe an apology letter. Defendant drafted two handwritten
letters in Spanish, one to the mother and one to Doe. In the letter to Doe, he asked her to
“forgive me for the bad that I was doing to you” and promised “it will never happen
again.”4 In the letter to the mother, defendant said he “made a mistake with what I did
with [Doe] but it never went through my mind to do anything to her,” and promised the
mother “[n]ever again will it happen again.” Defendant was taken into custody after the
interrogation.
On April 20, Detective Smith and Detective Wes Stanford interviewed Doe’s
mother about her daughter’s accusations. The mother did not mention the possibility of
Doe recanting and also said nothing about Doe’s propensity to make up stories. Doe’s
mother asked if they could drop the charges against defendant and expressed concern
about her ability to pay bills without defendant in the home. The detectives offered to let
the mother watch the recordings of Doe’s interview and defendant’s interrogation but she
chose not to. The People filed a felony complaint against defendant the same day
alleging one count of committing lewd or lascivious acts on a child (§ 288, subd. (a)).
In May 2011, Doe attended an overnight science camp with her friends Desiree
and Daisy. Daisy recalled Doe talking at night in the cabin where the girls were staying
about “getting raped” by defendant and that this conduct had been going on since the
4
We rely on the English language translations of the letters that were admitted
into evidence at trial.
4
third or fourth grade. Daisy said Doe mentioned defendant “[g]rabbing her real hard and
making her do stuff,” and touching Doe’s vagina “all the time when her mom would
leave to go to her work, which was face painting.” According to Desiree, Doe told the
girls that when her mother would leave defendant at home with Doe he would touch her
sexually, consistent with Doe’s statements to Desiree in early 2011 in the locker room.
Following a preliminary hearing, the People charged defendant by felony
information with four counts of committing lewd or lascivious acts on a child (§ 288,
subd. (a)) and seven counts of committing lewd or lascivious acts on a child by force,
violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 288, subd.
(b)(1)). Count seven specified a date “on or around March 14, 2011” for its section 288,
subdivision (b)(1) allegation, while the other ten counts provided a date range between
September 1, 2006 and April 18, 2011.
The case proceeded to trial in early 2012. During voir dire, the court mentioned to
some of the potential jurors that in the event testimony is given in another language
“[y]ou must rely on the translation provided by an interpreter even if you understand the
language spoken by the witness. Do not retranslate any testimony for other jurors.”
Several witnesses testified at trial for the prosecution. Doe recanted her
allegations against defendant at trial. She admitted that she reported defendant’s alleged
actions to the police, Desiree, and Daisy, but maintained that she was lying during each
of those disclosures. On cross-examination by defense counsel, Doe confirmed she had
also recanted at the preliminary hearing. When asked why she would make up these
allegations, Doe claimed that she did so because defendant was too strict and did not
allow her to go to parties with her friends. In addition to recounting Doe’s disclosures
regarding defendant, Desiree testified that Doe’s mother approached her during a field
trip in November 2011 and told her that the accusations against defendant were untrue.
The prosecution played video recordings of Doe’s interview, the pretext call, and
defendant’s interrogation. The jury was provided with a transcript of each of the
5
recordings. Before playing the recording of Doe’s interview, the trial court admonished
the jury: “Ladies and gentlemen, you’re going to be receiving a copy of the transcript. It
is not part of the transcript, that is not part of the evidence in the case. It is being
provided to you to assist you in following along with the DVD that is the evidence in the
case.”
Unlike Doe’s interview, the pretext call was in Spanish and the transcript
contained a transcription in Spanish as well as a side-by-side translation into English.
Gilroy Police Officer Eustaquio Rodriguez, a fluent Spanish speaker, testified that the
translation was accurate. Before playing the pretext call recording, the court told the
jury: “Ladies and gentlemen, the same admonition I gave you previously, the transcript is
not evidence but is to assist you in listening to the tape.” According to the prosecutor,
defense counsel received a copy of the pretext call transcript “previously.”
Like the pretext call transcript, the transcript of defendant’s interrogation (which
took place in English and Spanish) included both the Spanish transcription and an
English translation. Officer Cortez, who assisted in the interrogation, testified to the
accuracy of the translation. Before it was played the court informed the jury: “The same
admonition, ladies and gentlemen.” The transcripts were collected from the jury after the
recordings were played and, although marked as exhibits, were never admitted as
evidence.
Defense witnesses included Doe’s mother, who testified that Doe had a tendency
to make up stories and that Doe had recanted her allegations against defendant during a
walk with her on the evening of April 19. The mother also said she never saw any
hickeys on Doe’s neck and that it was “very rare” for defendant to be home alone with
the children. She stated neither she nor Doe ever received an apology letter from
defendant. Two of defendant’s relatives testified to defendant’s good character.
Defendant also testified. He stated that he had a second grade education. He
claimed he was referring to an innocent, non-sexual interaction with Doe during the
6
pretext call. Regarding the interrogation, defendant maintained that the officers had told
him that if he was unsure of an answer he “should say yes.” He admitted pulling Doe’s
hair to get her out of bed in March 2011. When confronted on cross-examination with
his statements during the interrogation, defendant confirmed he made the statements
attributed to him but argued none of those statements was true. Similarly, defendant
confirmed he had rubbed his crotch during the interrogation to simulate what he did to
Doe but said that he never actually rubbed Doe in that way.
Carl Lewis testified for the prosecution as an expert in Child Sexual Abuse
Accommodation Syndrome (CSAAS), which he described as a series of conditions and
behaviors exhibited by children who are victims of child molestation that might seem
unexpected. Lewis stated the behavioral categories predicted by CSAAS are: (1) secrecy;
(2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted, or
unconvincing disclosure of abuse; and (5) retraction.
At the close of evidence and outside the presence of the jury the court reviewed
the proposed jury instructions with counsel. The instructions as proposed and given did
not include CALCRIM No. 121, which provides:
“You (may/are about to) hear a recording [that is partially] in a foreign
language. You will receive a transcript with an English language translation
of that recording. [¶] You must rely on the transcript, even if you
understand the language in the recording. Do not share your own
translation with other jurors. Please write a note to the clerk or bailiff if
you believe the translation is wrong. [If the recording is partially in English,
the English parts of the recording are the evidence.]”
In explaining the evidence available to the jury, the court informed them that they would
have access to the recordings and that they could request the transcripts but “[t]he
transcripts, as I remind you, are not in evidence. You may have the transcripts to assist
you while you’re watching or listening to any of the tapes if you wish; just ask for them
and they will be provided and then you will need to give them back.” The instructions
also included CALCRIM No. 3501, which informed the jury, in relevant part:
7
“The People have presented evidence of more than one act to prove that the
defendant committed these offenses. You must not find the defendant
guilty unless: 1) you all agree that the People have proved that the
defendant committed at least one of these acts and you all agree on which
act he committed for each offense; or 2) you all agree that the People have
proved that the defendant committed all the acts alleged to have occurred
during this time period and have proved that the defendant committed at
least the number of offenses charged.”
During deliberations, the jury requested the transcripts of all three recordings and
the court provided them after an unreported discussion with counsel. The jury found
defendant guilty of all 11 counts and the court sentenced him to a total of 30 years in state
prison, finding the counts “warrant separate punishment because they were all separate
acts and on separate occasions.”
II. DISCUSSION
A. INSTRUCTIONAL ERROR REGARDING TRANSLATIONS
Defendant argues that the trial court committed reversible error by telling the jury
that the Spanish-language recordings of the pretext call and defendant’s interrogation
were the evidence they were to consider but not the English translations of those
recordings. Defendant urges us to follow the reasoning of the now depublished People v.
Arancibia, previously reported at 213 Cal. App. 4th 1465, and find the error to be
structural. (People v. Arancibia (Feb. 27, 2013, B240341) [opn. ordered nonpub. June
12, 2013, S209794].) Alternatively, defendant argues his trial counsel provided
ineffective assistance in failing to request CALCRIM No. 121 or a similar instruction.
When an English language recording is admitted into evidence and played for the
jury, the recording itself constitutes the evidence to be considered by the jury and any
transcription is considered merely an aid. (See People v. Brown (1990) 225 Cal. App. 3d
585, 597-599.) However, when a recording is in another language, the proper evidence
for the jury to consider is the translation of the recording and not the original non-English
version. (See People v. Cabrera (1991) 230 Cal. App. 3d 300, 303-304 [finding juror
misconduct when juror retranslated portions of the defendant’s Spanish language
8
testimony rather than relying on the court interpreter’s translation].) CALCRIM No. 121
contains the recommended admonition when a party wishes to play a recording in a
foreign language.
Although the trial court properly instructed the jury before it heard Doe’s English
language interview that the recording rather than the transcript constituted the evidence to
be considered, the People concede that the court mistakenly instructed the jury by
repeating the same admonition for the Spanish language recordings. We will determine
whether the error affected defendant’s substantial rights and would therefore require
reversal, despite there being no objection from defendant at trial. (§ 1259.)
Few errors are reversible per se. To rise to the level of structural error, it must be
one which affects “the framework within which the trial proceeds, rather than simply an
error in the trial process itself.” (Arizona v. Fulminante (1991) 499 U.S. 279, 310.) The
quintessential structural error in the context of jury instructions occurs when an
instruction reduces the burden of proof below the Fifth Amendment’s requirement that
guilt be determined beyond a reasonable doubt. As the Supreme Court stated in Sullivan
v. Louisiana (1993) 508 U.S. 275, 281, “where the instructional error consists of a
misdescription of the burden of proof, [it] vitiates all the jury’s findings.” Here, the trial
court’s instructional error is more akin to an evidentiary rather than structural error, and
therefore does not require automatic reversal.
Defendant also asserts the instructional error “deprived [him] of his federal due
process rights to a fair trial under the Fourteenth Amendment of the United States
Constitution because the verdict was not based upon the unanimous verdict of twelve
jurors who heard and saw exactly the same evidence, at the same time.” (Citing Neder v.
United States (1999) 527 U.S. 1, 8 (Neder).) In Neder, the jury instructions omitted an
element of the charged offense, which the court found violated the defendant’s Sixth
Amendment jury trial guarantee. (Neder, at pp. 8, 12.) Noting that “a ‘very limited class
of cases’ ” are subject to automatic reversal, the court rejected the defendant’s claim that
9
the error was structural and concluded that the error was reversible unless the prosecution
could show it was harmless beyond a reasonable doubt. (Id. at pp. 8, 16, citing Chapman
v. California (1967) 386 U.S. 18.) Unlike the faulty instruction in Neder, here defendant
does not claim the instructions omitted any element of the charged offenses and he does
not affirmatively show how the error otherwise violated any federal constitutional
protections. (Denham v. Superior Court of Los Angeles County (1970) 2 Cal. 3d 557, 564
[error must be affirmative shown].)
Article 6, section 13 of the California Constitution states that “[n]o judgment shall
be set aside ... on the ground of misdirection of the jury, or of the improper admission or
rejection of evidence ... unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.” (Cal. Const., art. VI, § 13.) The California Supreme Court
clarified that the miscarriage of justice test “is not met unless it appears ‘reasonably
probable’ the defendant would have achieved a more favorable result had the error not
occurred.” (People v. Breverman (1998) 19 Cal. 4th 142, 149 [finding failure to instruct
sua sponte on a lesser included offense subject to Watson error analysis], citing People v.
Watson (1956) 46 Cal. 2d 818, 836.)
On this record, we see no reasonable probability that defendant would have
achieved a more favorable result with a proper jury instruction. The record discloses no
evidence that any of the jurors spoke Spanish, much less that any juror retranslated the
recordings. The jury’s request for the transcripts rather than the recordings during
deliberation suggests that the jurors based their decision on the English translations
provided in the transcripts. Further, Officers Rodriguez and Cortez testified to the
accuracy of the translations of the pretext call and defendant’s interrogation, respectively,
and defense counsel did not lodge any objections related to their accuracy.
Defendant’s ineffective assistance of counsel claim is similarly unpersuasive. To
prevail, defendant must show his trial counsel’s performance was deficient and that he
10
was prejudiced by the deficiency. (People v. Ledesma (1987) 43 Cal. 3d 171, 216-217.)
To prove prejudice, defendant must affirmatively show a reasonable probability that, but
for his trial counsel’s errors, the result would have been different. (Id. at pp. 217-218.)
However, “[i]f a claim of ineffective assistance of counsel can be determined on the
ground of lack of prejudice, a court need not decide whether counsel’s performance was
deficient.” (In re Crew (2011) 52 Cal. 4th 126, 150, citing Strickland v. Washington
(1984) 466 U.S. 668, 697.) Defendant asserts that he would have achieved a more
favorable result had defense counsel objected but makes no affirmative showing of
prejudice. As we have already discussed, we find no reasonable probability that the
result would have been different if defense counsel had informed the court of its error and
obtained a proper admonition regarding the transcripts.
B. SUFFICIENCY OF THE EVIDENCE
“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence-that is, evidence that is reasonable,
credible, and of solid value-from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” (People v. Lindberg (2008) 45 Cal. 4th 1, 27
(Lindberg).) We will affirm a conviction if “ ‘ “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” ’ [Citations.]”
(People v. Alvarez (1996) 14 Cal. 4th 155, 224, original italics.) “The testimony of a
single witness is sufficient to uphold a judgment” (In re Sheila B. (1993) 19 Cal. App. 4th
187, 200 (Sheila B.)), and “we do not reweigh the evidence, resolve conflicts in the
evidence, draw inferences contrary to the verdict, or reevaluate the credibility of
witnesses.” (People v. Little (2004) 115 Cal. App. 4th 766, 771 (Little).)
1. Evidence to Support Eleven Section 288 Counts
Defendant argues that there was insufficient evidence to convict defendant of
more than six counts of lewd or lascivious conduct due to the generic nature of some of
11
the testimony. He also argues that the proximity between the multiple unlawful acts
during each incident precluded more than one conviction per incident.
Section 288, subdivision (a) punishes “any 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 ... .” (§
288, subd. (a).) Section 288, subdivision (b)(1) enhances the penalty for “[a]ny person
who commits an act described in subdivision (a) by use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim or another person
... .” (§ 288, subd. (b)(1).)
Generic testimony can support a conviction for a sex offense, particularly in cases
involving a young victim and a resident perpetrator. (People v. Jones (1990) 51 Cal. 3d
294, 299 (Jones).) In such cases, the victim “typically testifies to repeated acts of
molestation occurring over a substantial period of time but, lacking any meaningful point
of reference, is unable to furnish many specific details, dates or distinguishing
characteristics as to individual acts or assaults.” (Ibid.) To support a conviction, generic
testimony must, at a minimum, describe: (1) “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”; (2) “the number of acts
committed with sufficient certainty to support each of the counts alleged in the
information or indictment”; and (3) “the general time period in which these acts occurred
... to assure the acts were committed within the applicable limitation period.” (Id. at p.
316, original italics.)
The California Supreme Court has consistently rejected the reasoning of
defendant’s argument that he cannot be convicted for more than one count per incident
because Doe testified the touching occurred at the “same time.” In People v. Scott (1994)
9 Cal. 4th 331 (Scott), the court determined that “[e]ach individual act that meets the
12
requirements of section 288 can result in a ‘new and separate’ statutory violation.”
(Scott, at pp. 346-347, quoting People v. Harrison (1989) 48 Cal. 3d 321, 329
(Harrison).) The court explained that courts have “long assumed that one offense is
complete and another one begins whenever the perpetrator stops and resumes unlawful
activity during a sexual assault.” (Scott, at p. 345.) Additionally, when a defendant
commits multiple sexual acts that are different from one another during a single incident,
“they may result in multiple convictions even if committed in rapid succession.”
(Harrison, at p. 330 [collecting cases].) As noted in Scott, a contrary decision would
mean “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, at p. 347.)
Here, in closing argument the prosecutor explained that counts one through six (§
288, subd. (b)(1) counts) “are charges that we’re going to talk about generic testimony
under [CALCRIM No.] 3501.” Count seven referred specifically to the hair pulling
incident from March 14, 2011 (which defendant does not challenge on appeal). And
counts eight through eleven (§ 288, subd. (a) counts) included “the hickeys on the neck ...
[a]nd then ... anytime during the course of that when he’s coming in there and grabbing
her inappropriately with that sexual interest at any time [from] second grade on.” The
prosecutor then paraphrased CALCRIM No. 3501, informing the jury it must not find
defendant guilty unless “[y]ou all agree that the People have proved that the defendant
committed all the acts ... during this time period and have proved that the defendant
committed at least the number of offenses charged.”
Reviewing the record in the light most favorable to the judgment, we find
substantial evidence from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt of committing eleven separate lewd or lascivious acts.
(Lindberg, supra, 45 Cal.4th at p. 27.) During her interview with Detective Smith, Doe
13
estimated that she touched defendant’s penis three to four times and that he touched her
private part four or five times. Defendant stated during his interrogation that Doe
touched his penis approximately five times and that he touched her vagina three times.
The jury was entitled to believe Doe’s interview testimony, which accounts for up to nine
touching incidents. Despite Doe’s ambiguous testimony that the touching happened at
the “same time,” because defendant’s touching of Doe’s vagina and her touching of his
penis are “of an entirely different nature,” the jury could treat them as separate acts “even
if committed in rapid succession.” (Harrison, supra, 48 Cal.3d at p. 330, original italics.)
Defendant questions the reliability of Desiree’s testimony that Doe came to school
with hickeys on her neck in fourth grade and told Desiree that defendant was the cause.
But contrary to defendant’s interpretation of People v. Cuevas (1995) 12 Cal. 4th 252,
262-263 (Cuevas), it remains the rule that “[t]he testimony of a single witness is
sufficient to uphold a judgment” so long as it is supported by substantial evidence.
(Sheila B., supra, 19 Cal.App.4th at p. 200.) On the issue of whether an out-of-court
identification made by a witness who later recanted was sufficient to support a
conviction, Cuevas disapproved a rule from an older case requiring independent
corroboration and held that “the substantial evidence test ... should be used to determine
whether an out-of-court identification is sufficient to support a criminal conviction.”
(Cuevas, at p. 272, overruling in part People v. Gould (1960) 54 Cal. 2d 621, 631.)
Applying that standard here, Desiree testified she saw three hickeys on Doe’s neck at
school one day during fourth grade and that Doe told Desiree, “my step dad gave me a
hickey like when I was asleep.” The jury could reasonably credit Desiree’s testimony
about what Doe told her over the contrary testimony by Doe’s mother, given Desiree’s
comparative impartiality and the lack of evidence that she had any motivation to testify
falsely. In contrast, Doe’s mother acknowledged at trial that she had asked the detectives
soon after defendant’s arrest if she could not press charges and had also expressed
concern to them about not being able to pay bills without defendant’s help. The
14
reliability of Desiree’s testimony was further enhanced by the fact that she was not
merely backing up her friend Doe, but actually contradicting Doe’s recanted version of
events. A reasonable jury could therefore conclude that Doe was telling the truth in her
out-of-court statement to Desiree that defendant gave her hickeys.
The nine acts identified by Doe, the hair pulling incident, and Desiree’s testimony
regarding hickeys provide substantial evidence to support the 11 separate counts of lewd
or lascivious acts.
2. Evidence of Force, Violence, Duress, Menace, or Fear of Immediate
and Unlawful Bodily Injury (§ 288, subd. (b)(1))
Because of “the harsher penal consequences of a conviction” under section 288,
subdivision (b) as opposed to section 288, subdivision (a), “the force used for a
subdivision (b) conviction [must] be ‘substantially different from or substantially greater
than that necessary to accomplish the lewd act itself.’ ” (People v. Soto (2011) 51 Cal. 4th
229, 242 (Soto), quoting People v. Cicero (1984) 157 Cal. App. 3d 465, 474.) Such force
“includes acts of grabbing, holding and restraining that occur in conjunction with the
lewd acts themselves.” (People v. Alvarez (2009) 178 Cal. App. 4th 999, 1005, citing
People v. Babcock (1993) 14 Cal. App. 4th 383, 385 & 388 [finding sufficient evidence of
force where the defendant grabbed the victim’s hand and placed it on his crotch].)
Defendant argues there was an insufficient showing of force or duress to support counts
one through six.
During her interview, Doe stated that defendant would grab her hand and make her
“do stuff” to his penis and that she “always” tried to pull away. Later, Doe said “he
would hold me and then he would like start doing himself too ... .” Consistent with Doe’s
statements, Daisy testified that Doe told her about defendant “[g]rabbing [Doe] real hard
and making her do stuff” and that she thought the conduct started in “third or fourth”
grade. From this evidence, the jury could reasonably conclude that on at least seven
occasions (including the hair pulling incident) defendant committed a lewd or lascivious
15
act upon or with Doe’s body by use of force “ ‘substantially different from or
substantially greater than that necessary to accomplish the lewd act itself.’ [Citation.]”
(Soto, supra, 51 Cal.4th at p. 242.)5
C. SECTION 654
Defendant contends the trial court erred in not staying some of his felony
convictions under section 654, which 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.” (§ 654, subd. (a).)
Like his sufficiency of the evidence argument, defendant claims section 654 bars separate
punishment for each count because he touched Doe’s vagina at the “same time” that she
touched his penis during each incident.
However, “multiple sex acts committed on a single occasion ... 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.) “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.” (Alvarez, supra,
178 Cal.App.4th at pp. 1006-1007 [finding no § 654 violation where the defendant was
separately sentenced for kissing the victim, digitally penetrating her, and forcing her to
fondle his penis during the same incident].) As we have already discussed, each
individual act committed by defendant was a separate offense “even if committed in rapid
succession.” (Harrison, supra, 48 Cal.3d at p. 330.) Because these separate offenses are
5
Defendant devotes a large portion of his opening brief to discussing Soto’s
disapproval of a line of cases suggesting that a victim’s consent is a defense in section
288, subdivision (b) cases. This argument is irrelevant to defendant’s appeal because he
never raised consent as a defense. Sufficient evidence other than Doe’s lack of consent
supported the jury’s finding that defendant accomplished at least seven lewd or lascivious
acts (including the hair pulling incident) by use of force.
16
distinguishable, separate punishment was allowed and we therefore find no error. (Scott,
supra, 9 Cal.4th at p. 344, fn. 6.)
III. DISPOSITION
The judgment is affirmed.
17
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Grover, J.
WE CONCUR:
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Bamattre-Manoukian, Acting P.J.
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Mihara, J.