People v. Herrera CA4/1 ( 2014 )

Filed 5/6/14 P. v. Herrera CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063090
Plaintiff and Respondent,
v. (Super. Ct. No. SCD234143)
HECTOR MANUEL HERRERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Theodore
M. Weathers, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for the Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant
Attorneys General, Charles C. Ragland, Deputy Attorney General for the Plaintiff and
Respondent.
A jury convicted Hector Herrera of oral copulation of a child 10 years of age or
younger (Pen. Code,1 § 288.7, subd. (d); count 1) and lewd and lascivious touching of a
child under the age of 14 (§ 288, subd. (a); count 2). The trial court sentenced him to a
total prison term of 18 years to life, consisting of the indeterminate 15-year-to-life term
on count 1 and a consecutive three-year determinate term on count 2. Herrera contends,
for various reasons described below, that the court abused its discretion when it imposed
consecutive sentences. Conceding that his counsel did not object to some of the court's
sentencing decisions, he asks that we exercise our discretion to excuse his counsel's
forfeiture and consider his arguments on the merits. Herrera alternatively argues the
issue is directly reviewable as a claim for prejudicially ineffective assistance under the
Sixth Amendment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Raquel G. has three children, the youngest of whom is Valeria G., who was four
years old at the time of the offenses. In 2011, Raquel was taking Valeria and her other
children to daycare at a facility owned by Guadalupe Herrera. Mrs. Herrera's husband,
the defendant, was always at the facility and was her helper. Sometimes when Raquel
dropped her children off Mrs. Herrera was not present, and either the defendant or Mrs.
Herrera's sister-in-law would be watching the children. Most mornings the defendant
was watching the children. The defendant would also take the children to and from
school because Mrs. Herrera did not drive. Mrs. Herrera relied on the defendant to help
1 Statutory references are to the Penal Code unless otherwise specified.
2
with the children at the daycare, and he supervised them while she prepared meals or ran
errands. He would lie down with the children during midday naptime.
On May 16, 2011, Valeria asked her mother if she knew that the defendant
touched her. Valeria pointed to her private area and said, "He touches me." On further
questioning, Valeria told her mother she told the defendant to stop, and he did stop and
walked away, but "a few minutes later, he came back and he did it again." Raquel asked
Valeria if she was sure that is what happened, and she responded, "Yes." Valeria told her
mother she was not lying, and asked her not to tell Mrs. Herrera, but to tell the defendant
to stop.
Raquel called police the next day, and an officer spoke with Valeria and Raquel's
other children. While grabbing her vaginal area, Valeria told the officer the defendant
was touching her private parts. She also told the officer that the defendant pulled her
pants off and started licking her vagina. Valeria told the officer it happened on the last
day she was taken to daycare, which Raquel confirmed was the previous Friday.
On May 18, 2011, Valeria was interviewed by forensic interviewer Marisol
Olguin. Valeria told Olguin that Hector took off her pants and licked her vagina (which
she referred to as her "booty"), while she was sleeping on a chair. According to Valeria,
Mrs. Herrera was in the kitchen. Valeria reported that she told the defendant, "No." and
he told her he was going to grab her. Valeria told Olguin it happened one time. Valeria
said the defendant also touched her once with his hand.
At trial, Valeria testified that the defendant touched her in her "private spot" with
his hand while Mrs. Herrera was in the kitchen. She also testified that he licked her.
3
In imposing sentence, the trial court acknowledged it was familiar with the facts
having presided over the trial, and pointed out the jury had reached verdicts on both
counts. It found counts 1 and 2 were "separate and discrete acts for which Mr. Herrera
should be punished consecutively." It continued: "The Court is aware of the lack of a
significant criminal record on Mr. Herrera's part. I don't believe that he was the person
that was necessarily entrusted with the children in this daycare situation. Nevertheless,
he is married to the owner of the daycare and was certainly present and certainly helped
out on a variety of times, and as such, he was in a position of trust in caring for these
children, and he violated that position of trust." The court imposed the low term of three
years on count 2 based on Herrera's lack of a significant criminal record, though it
observed Herrera was without remorse and still denied committing the offenses.
DISCUSSION
I. Standard of Review and Legal Principles
California Rules of Court, rule 4.425 provides that "[a]ny circumstances in
aggravation or mitigation" may be considered in deciding to impose concurrent or
consecutive sentences unless the fact is used to impose an upper term, enhance
defendant's sentence, or is an element of the crime. (Cal. Rules of Court, rule 4.425(b).)
Criteria that may be used include that "[t]he crimes and their objectives were
predominantly independent of each other" and "[t]he crimes were committed at different
times or separate places, rather than being committed so closely in time and place as to
indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a).)
However, these criteria are not exclusive. California Rules of Court, rule 4.408(a) states:
4
"The enumeration in these rules of some criteria for the making of discretionary
sentencing decisions does not prohibit the application of additional criteria reasonably
related to the decision being made. Any such additional criteria must be stated on the
record by the sentencing judge."
This court reviews a trial court's sentencing decision for abuse of discretion.
(People v. Sandoval (2007) 41 Cal. 4th 825, 847 [sentencing in general]; People v.
Bradford (1976) 17 Cal. 3d 8, 20 [concurrent versus consecutive sentences].) "In the
absence of a clear showing of abuse, the trial court's discretion in this respect is not to be
disturbed on appeal. [Citations.] Discretion is abused when the court exceeds the bounds
of reason, all of the circumstances being considered." (Bradford, at p. 20.) We
undertake our review under this standard, mindful that " 'California courts have long held
that a single factor in aggravation is sufficient to justify a sentencing choice . . . .' "
(People v. Quintanilla (2009) 170 Cal. App. 4th 406, 413; People v. Williams (1991) 228
Cal. App. 3d 146, 152.)
II. Separate and Discrete Acts Finding
Herrera contends remand is required because the trial court's finding that he
committed separate and discrete acts was "inapplicable" and not a proper reason to justify
imposition of consecutive sentences. He maintains the proper test is whether he engaged
in a "single period of aberrant behavior" (Cal. Rules of Court, rule 4.425(a)(3)), and the
record evidence, because it does not show an "appreciable time differential," cannot
support a consecutive sentence under this factor.
5
As the People point out, defense counsel did not object or challenge this factor as a
ground for the court to consider. We conclude Herrera has forfeited the contention.
" '[T]he waiver doctrine should apply to claims involving the trial court's failure to
properly make or articulate its discretionary sentencing choices. Included in this category
are cases in which the stated reasons allegedly do not apply to the particular case, and
cases in which the court purportedly erred because it . . . failed to state any reasons or
give a sufficient number of valid reasons.' " (People v. Quintanilla, supra, 170
Cal.App.4th at pp. 412-413, quoting People v. Scott (1994) 9 Cal. 4th 331, 353; see
generally People v. Seijas (2005) 36 Cal. 4th 291, 302 [defendant's failure to make a
timely and specific objection on the ground asserted on appeal renders that ground not
cognizable].) "The reason for this rule is that '[i]t is both unfair and inefficient to permit
a claim of error on appeal that, if timely brought to the attention of the trial court, could
have been easily corrected or avoided.' [Citations.] '[T]he forfeiture rule ensures that the
opposing party is given an opportunity to address the objection, and it prevents a party
from engaging in gamesmanship by choosing not to object, awaiting the outcome, and
then claiming error.' " (People v. French (2008) 43 Cal. 4th 36, 46.)
Acknowledging his counsel's inaction, Herrera asks that we either not invoke a
forfeiture or address whether he received ineffective assistance of counsel due to defense
counsel's failure to object to the court's sentencing error. To prevail on a claim of
ineffective assistance of counsel, Herrera "must prove ' "that counsel's representation fell
below an objective standard of reasonableness under prevailing professional norms, and
that counsel's deficient performance was prejudicial, i.e., that a reasonable probability
6
exists that, but for counsel's failings, the result would have been more favorable to the
defendant." ' [Citation.] ' "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." ' [Citation.] If 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;
see Strickland v. Washington (1984) 466 U.S. 668, 688.) "If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should
be followed." (Strickland v. Washington, at p. 697.)
Here, we conclude below that the evidence supports the trial court's finding of
another factor justifying a consecutive sentence: that Herrera was in a position of trust
and confidence with respect to Valeria. As stated, a single appropriate factor is sufficient
to support a decision to impose consecutive sentences. (See People v. Osband (1996) 13
Cal. 4th 622, 728-729; People v. Coelho (2001) 89 Cal. App. 4th 861, 888.) The court
could have selected only that factor to impose Herrera's sentence, and on this record we
discern no reasonable probability it would not have done so even assuming counsel was
ineffective in failing to object to the "separate and discrete acts" finding.
III. Position of Trust Finding
Herrera contends the evidence does not support the trial court's finding that he
occupied a position of trust with respect to Valeria or the other children; that his duties
were mainly driving the children to and from school and occasionally watching them
while they were playing in the playroom or when Mrs. Herrera was cooking. He also
7
maintains the evidence shows the children at times refused to obey his directions and he
had to call his wife to speak to the children and direct them to follow his instructions.
Herrera relies on People v. French (2008) 43 Cal. 4th 36 and other authorities, but
we conclude his arguments are unpersuasive. French involved whether the defendant's
plea of no contest constituted an admission of the additional aggravating circumstance
that the defendant took advantage of a position of trust in committing his offense, lewd
and lascivious conduct with a child under 14 years of age, who was a charge at an in-
home daycare run by the defendant's daughter. (French, at pp. 41-42, 50-51.) The
California Supreme Court held that the factual basis as stated by the prosecutor—that
defendant committed the offenses against one of his victims when he took him to the
bathroom located in a park—did not clearly establish that aggravating circumstance. (Id.
at p. 51.) The court observed that the prosecutor did not state that the victim had been
entrusted to the defendant's care, nor did the prosecutor specify what the defendant's role
was in relation to his daughter's daycare. (Id. at p. 51.) French and other authorities
relied upon by Herrera merely summarize facts that either supported or did not support a
court's conclusion that a defendant occupied a position of trust; none purport to set forth
general standards or rules governing that factual inquiry for sentencing purposes.
(People v. Franklin (1994) 25 Cal. App. 4th 328, 338 [evidence was undisputed that
defendant was victim's stepfather and entrusted with caring for victim and her sister,
which placed him in a position of trust and confidence regarding the children; such a
finding was not an element of the crime of continuous sexual abuse and thus its use as an
aggravating factor was not prohibited]; People v. Dancer (1996) 45 Cal. App. 4th 1677,
8
1683, 1693-1695 [finding that the defendant exploited a position of trust was supported
by evidence that the defendant ingratiated himself to a young child without a resident
father, brother or playmates; gave her candy and ice cream; let her use his exercise
equipment; and fostered a relationship in which she trusted him enough to enter his
garage despite her mother's instruction], disapproved on another ground in People v.
Hammon (1997) 15 Cal. 4th 1117, 1123; People v. Pham (2009) 180 Cal. App. 4th 919,
930 [defendant did not dispute court's conclusion used to impose upper term that he, as
the victim's treating chiropractor, took advantage of a position of trust]; People v.
Burbine (2003) 106 Cal. App. 4th 1250, 1262-1263 [trial court's finding that appellant
took advantage of a position of trust by taking them on rides on his big rig truck equipped
with a sleeping area did not violate rule that aggravating factor could not be an element;
offense of continuous child abuse was not an element of that offense].) Another authority
cited by Herrera does not involve a sentencing issue. (See People v. Cardenas (1994) 21
Cal. App. 4th 927, 940 [involving sufficiency of the evidence findings as to duress, force
or fear pursuant to conviction under section 288, subdivision (b), and concluding jury's
finding was supported by evidence that the appellant, purporting to act as a "curandero"
or healer, placed himself in a position of trust with his victims and traded on their fears
that if they did not allow him to proceed with his "cure," they would remain ill or face
imminent death].)
Here, in contrast to People v. French, supra, 43 Cal. 4th 36, the evidence
establishes that Herrera did in fact care for the children while his wife was not present,
drove them to and from school, walked with them to the park once or twice a week, and
9
at time disciplined them.2 The trial court reasonably concluded these were circumstances
where Herrera was necessarily supervising the children, entrusted with their care and
safety, and in a position of trust and authority with regard to then four-year-old Valeria,
regardless of whether other children regarded him as an authority figure or heeded his
instruction.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
2 When asked whether Herrera was "sort of the disciplinarian around there . . . "
Mrs. Herrera testified, "Most of the time, it was me. . . . But whenever Hector wanted to
discipline them, they would say bad words to him, and I would be hearing and watching
them."
10