People v. Valiente CA1/5 ( 2021 )

Filed 3/18/21 P. v. Valiente CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, A159455
Plaintiff and Respondent,
(Solano County
v. Super. Ct. No. VCR232201)
ALEXANDER GALVEZ VALIENTE,
Defendant and Appellant.
Alexander Galvez Valiente appeals his conviction for two counts
of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)),
contending that the evidence was insufficient to support his
convictions. Because his appeal lacks merit, we affirm.
BACKGROUND
Valiente’s convictions are based on two incidents involving his
niece, M.H. When she was in her twenties, M.H. reported that Valiente
had molested her when she was a child. The incidents occurred at a
house in Vallejo, California (“Vallejo house”) where Valiente had
resided, and where M.H. attended family gatherings and occasionally
slept overnight. In addition to Valiente, M.H.’s aunt and grandparents
resided in the home.
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According to M.H., in one of the incidents (the living room
incident), Valiente approached her when she was laying on her stomach
in the living room at the Vallejo house, watching cartoons one morning
after having slept over. M.H. was wearing pink pajamas with flowers
on them, and Valiente was wearing olive green plaid pajama pants.
Valiente flipped her over onto her back by grabbing her torso on the
sides of her stomach, and then lay on top of her, thrusting his penis
against her vaginal area through her clothes. She felt Valiente’s body
weight on top of hers and felt a lot of pressure from his penis against
her vagina. Because it hurt, M.H. said “owe,” and Valiente stopped and
got off of her. The incident lasted for about a minute. M.H. testified
inconsistently about her age when the incident happened, stating at
various points that she was six, seven, or eight at the time.
In the other incident (the sleeping bag incident), M.H. had slept
overnight in a sleeping bag on the floor of the master bedroom of the
Vallejo house. After her aunt woke up and left the room, Valiente got
into M.H.’s sleeping bag behind her, in a spooning position. The two
were laying on their left sides. Valiente brushed his right hand along
M.H.’s body, from her right calf to her hip to her vagina. He touched
her vagina through her clothes for a few seconds. M.H. was between
the ages of seven and ten at the time.
Valiente testified at trial and denied the allegations.
After the jury returned guilty verdicts, the trial court sentenced
Valiente to a total of eight years in prison, suspended the sentence, and
placed Valiente on three years of probation. The court sentenced
Valiente to serve 364 days in custody and imposed $1,070 in fines and
fees.
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DISCUSSION
In considering Valiente’s contention that there was insufficient
evidence to support his convictions, we review the record for
substantial evidence from which a reasonable trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
(People v. Morales (2020) 10 Cal.5th 76, 88.) We “ ‘review the evidence
in the light most favorable to the prosecution and presume in support
of the judgment the existence of every fact the [trier of fact] could
reasonably have deduced from the evidence.’ ” (People v. Lee (2017) 11
Cal.App.5th 344, 353 (Lee).) We may not resolve credibility issues or
evidentiary conflicts because those are “ ‘the exclusive province of the
trier of fact.’ ” (People v. Gomez (2018) 6 Cal.5th 243, 280-281 (Gomez).)
Applying these standards, we affirm the convictions.
A.
Pointing to M.H.’s conflicting testimony about her age at the time
of each incident, Valiente contends there was insufficient evidence to
support his convictions. We disagree.
Although M.H. was uncertain about how old she was when the
incidents of abuse occurred, she was certain that they took place while
Valiente resided at the Vallejo house.1 She testified that the living
room incident happened when she was about six years old, when she
was “about seven,” or when she was seven or eight years old. She also
testified that she thought she was in the first or second grade at the
1In light of M.H.’s consistent testimony that both incidents
occurred at the Vallejo house, we reject Valiente’s suggestion that the
Solano County Superior Court did not have jurisdiction over the case
because the incidents may have occurred while he resided in Marin
County.
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time. With respect to the sleeping bag incident, M.H. estimated that
she may have been seven, eight, or nine at the time, or possibly as old
as 10 years old.
M.H. indicated that she could “not exactly” remember what her
age was at the time of the two incidents and that they happened “a
while ago.” She also testified that notwithstanding her inability to
remember exactly old she was, she was “a hundred percent confident”
that Valiente got on top of her and tried to “dry hump” her in the living
room. Likewise, although she could not remember her exact age, she
testified that she was “a hundred percent confident” that Valiente got
into her sleeping bag and touched her leg and vagina. She described
the incidents of molestation in detail, including the time of day, the
exact location inside the house, the duration, Valiente’s actions, and
her body position relative to his.
The inconsistencies concerning M.H.’s age do not undermine the
convictions here. First, we disagree with Valiente’s assertion that the
living room incident described by M.H. was impossible or highly
improbable because he did not move into the Vallejo house until
February of 2003. (See Gomez, supra, 6 Cal.5th at p. 281 [appellate
court must defer to trier of fact’s resolution of inconsistencies in
testimony “in the ‘absence of patent falsity, inherent improbability, or
other reason to question [the testimony’s] validity’ ”].) At that time,
M.H. would have been eight years old, which was consistent with her
testimony at one point that she was seven or eight years old at the time
of the living room incident. Contrary to Valiente’s claim, M.H. never
testified that she was five years old at the time of the living room
incident. She testified that instances of inappropriate conduct by
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Valiente occurred when she was between the ages of five and twelve.
When defense counsel asked her directly what happened when she was
five years old, she testified that no specific incident occurred at that
time, but she “felt that he was always looking for me.”
Second, M.H.’s precise age was immaterial so long as she was
younger than age 14, as required for a conviction under Penal Code
section 288, subdivision (a). The prosecution charged both counts of
lewd acts as having occurred between July 29, 1999 and July 28, 2007,
and M.H.’s testimony was not only consistent with the charged time
period, but established that the acts occurred when she was younger
than 14. (See People v. Garcia (2016) 247 Cal.App.4th 1013, 1022 [“
‘The law is clear that, when it is charged that an offense was committed
“on or about” a named date, the exact date need not be proved unless
the time “is a material ingredient in the offense” (Pen. Code, § 955), and
the evidence is not insufficient merely because it shows that the offense
was committed on another date.’ ”].)
Third, although M.H. provided inconsistent testimony about her
age, it was the jury’s role to evaluate her credibility – not ours. By the
time of trial, well over a decade had passed since the time of the
incidents, and it would not have been unreasonable for the jury to
conclude that M.H. could remember the incidents themselves without
remembering the precise timing. For example, in People v. Mejia
(2007) 155 Cal.App.4th 86, the court rejected the defendant’s challenge
to the sufficiency of the evidence where the victim testified that
defendant molested her more than two times in one month, but later
testified that he molested her “ ‘about once’ ” that month and that she
could not remember much about that month. (Id. at pp. 98-99.) In
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such circumstances, “a reasonable juror could have understood her as
merely explaining that she could not recall the precise number of times
she suffered abuse at defendant’s hands during that month, which was
consistent with her prior testimony that there had been at least two
instances of abuse that month.” (Ibid.) Ultimately, “the contradictions
in the victim’s testimony did not render it impossible to believe or
obviously false, but merely presented the jury with a credibility
determination that is not reviewable on appeal.” (Id. at p. 99; see also,
e.g., People v. Tompkins (2010) 185 Cal.App.4th 1253, 1261 [“Even
though [the victim’s] testimony at trial was somewhat inconsistent”
concerning the number of incidents, “the inconsistency went only to the
weight and credibility of the evidence and, on appeal, we do not disturb
the jury's resolution of that inconsistency.”].)
B.
We likewise reject Valiente’s contention that otherwise accepting
M.H.’s testimony concerning the sleeping bag incident as true, the
incident she described was physically impossible.
According to M.H., she and Valiente were both were laying on
their left sides in the sleeping bag, facing the same direction. Valiente
was behind M.H. in a spooning position, with his groin area touching
her buttocks. M.H.’s right leg was on top of her left. Valiente touched
M.H.’s right calf with his right hand and brushed his hand along her
body. As M.H. described, Valiente “started with my right calf and then
he scooted his fingers up on my hips and went over my vaginal area.”
Valiente touched her vagina through her clothes for “a couple of
seconds.”
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We disagree with Valiente’s assertion that “[a]natomically
speaking,” he could not have touched M.H.’s vagina as she described. It
would have been entirely reasonable for the jury to conclude that since
Valiente was laying on his left side, close behind M.H., he could have
reached toward her right calf with his right hand, moved his hand
upward along her body toward her right hip, and then moved his hand
from her right hip to her vaginal area, between her legs. Although
M.H. did not provide a second-by-second account of every place on her
body that Valiente touched when moving his hand from her right hip to
her vaginal area, we must “ ‘presume in support of the judgment the
existence of every fact the [trier of fact] could reasonably have deduced
from the evidence.’ ” (Lee, supra, 11 Cal.App.5th at p. 353.)
C.
Finally, we are unpersuaded by Valiente’s argument that the
evidence supporting the convictions was insufficient because the
prosecution did not introduce evidence other than M.H.’s testimony to
corroborate her account. Although Valiente emphasizes that there was
no physical or medical evidence, he does not explain why such evidence
would be expected in a case involving lewd touching of a child through
her clothes, where the offenses were not reported until over a decade
later. In any event, and as Valiente acknowledges, the testimony of a
single eyewitness is generally sufficient to support a conviction. (See
Gomez, supra, 6 Cal.5th at p. 281). Corroboration of a child victim’s
“testimony is not a necessary element of proof in a prosecution for lewd
acts on a child under 14.” (People v. Harlan (1990) 222 Cal.App.3d 439,
451.)
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DISPOSITION
The judgment is affirmed.
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_______________________
BURNS, J.
We concur:
____________________________
NEEDHAM, ACTING P.J.
____________________________
SELIGMAN, J.*
A159455
* Judge of the Superior Court of Alameda County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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