People v. Perez CA4/1 ( 2022 )

Filed 7/5/22 P. v. Perez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079232
Plaintiff and Respondent,
v. (Super. Ct. No. INF1800664)
ROSENDO GONZALEZ PEREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Mark E. Johnson, Judge. Affirmed.
Chambers Law Firm and Dan E. Chambers for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles Ragland, Assistant Attorney
General, Melissa Mandel and Nora S. Weyl, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury found Rosendo Gonzalez Perez guilty of nine counts of
committing or attempting to commit a lewd and lascivious act against two of
his granddaughters when they were under the age of 14 years. He challenges
the sufficiency of the evidence as to five of the convictions. We reject the
challenge, affirm the judgment, and order correction of a clerical error in the
abstract of judgment.
I.
BACKGROUND
A. Report of Molestation
During an investigation of a referral from Child Protective Services in
December of 2017, Jane Doe 1 and Jane Doe 2, granddaughters of Perez who
were respectively 12 and 13 years old at the time, told a social worker that
Perez had touched them “inappropriately.” The social worker contacted
police and referred the girls for forensic interviews.
B. Forensic Interviews
Jane Doe 1 and Jane Doe 2 were interviewed by a child forensic
interviewer. The interviews were recorded by video and audio.
Jane Doe 1 told the forensic interviewer that Perez had touched her “a
lot” and described several incidents. The first incident that Jane Doe 1
recalled occurred when she was 11 or 12 years old and Perez drove her in his
semi-truck to a truck stop; while they were inside the truck, he pulled down
her pants, touched her vagina, kissed and licked it, and inserted his finger
into it. Jane Doe 1 also told the interviewer that Perez had inserted his penis
into her vagina “[a] bunch of times.” She described an incident when she was
12-and-a-half years old and Perez took her to his house when nobody was
home, had her undress, and inserted his penis “a little bit” into her vagina
while he touched her breast. He offered her money and told her not to tell
anyone. Jane Doe 1 said the next time Perez put his penis in her vagina was
in her parents’ bedroom while her parents were out of town. He inserted his
finger into her vagina and offered her money to touch his penis, but she
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refused. Jane Doe 1 told the interviewer that Perez inserted his penis into
her vagina on another occasion at his house. She also described an incident
in a hotel pool where he touched her buttocks.
Jane Doe 2 told the forensic interviewer that Perez started touching
her when she was 10 years old and did so on multiple occasions for about two-
and-a-half years. The first incident occurred at Perez’s house while Jane Doe
2 was lying on a bed watching a movie and Perez reached into her pants and
touched her vagina. A similar incident occurred when Jane Doe 2 was 11 and
Perez put his hand on her genital area while she was sleeping on a couch at
his house. Jane Doe 2 described another incident when she was 10 or 11
years old and Perez tried to put his hand down her pants while she was
riding in his truck, but she pushed him away. When Jane Doe 2 was 12 years
old, Perez put his hand on her breast over her clothes.
C. Criminal Charges
The People charged Perez with nine counts of committing a lewd and
lascivious act against a child under the age of 14 years. (Pen. Code, § 288,
subd. (a).) Counts 1 through 5 alleged acts against Jane Doe 1 that occurred
when she was 12 years old and identified the act on which each count was
based as follows: (1) “First time, fingers on outside of vagina”; (2) “First time,
mouth to vagina”; (3) “First time, finger penetrates vagina”; (4) “Sexual
intercourse, defendant’s bedroom”; and (5) “Sexual intercourse, mother’s
bedroom.” The other four counts alleged acts against Jane Doe 2 and
identified the act and/or location on which each was based. The People also
alleged Perez had committed a qualifying offense against more than one
victim within the meaning of the One Strike law. (Id., § 667.61, subd. (e)(4).)
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D. Trial
The case proceeded to a jury trial. Jane Doe 1, Jane Doe 2, and several
other witnesses testified and several exhibits were introduced.
Jane Doe 1 was 15 years old when she testified. She said that when
she was 10 or 11 years old, Perez would pick her and others up on weekends
and take them to his house and to a truck stop to clean his truck, and while
there he would touch her. The first time Jane Doe 1 could remember Perez
touched her was at his house when she was 10 years old. He removed her
clothing and put his hand and tongue on her vagina. When the prosecutor
asked Jane Doe 1 about the first incident of Perez’s inappropriate touching
she had described to the forensic interviewer, Jane Doe 1 remembered that
incident occurred at the truck stop, but stated the incident at Perez’s house
happened earlier. She testified that during the first incident at the truck
stop, she was 11 or 12 years old, and Perez touched, kissed, and inserted his
finger into her vagina, and touched and sucked her breast. Jane Doe 1
testified that Perez had inappropriately touched her “[e]very Saturday,
Sunday” and touched and kissed her vagina “a lot of times.”
When the prosecutor asked Jane Doe 1 whether Perez “ever ha[d] sex
with [her],” she responded, “No. He would touch me, but no, he wouldn’t do
that.” The prosecutor then played the recording of Jane Doe 1’s forensic
interview. After the recording finished, the prosecutor again asked Jane Doe
1 whether Perez had sex with her, once at his house and another time in her
parents’ room, and this time she answered that he had “tried to” put his penis
in her vagina. She stated she did not “want to remember” and did not “even
want to think about” those incidents Jane Doe 1 testified she told the truth
during the forensic interview, and her memory of the touching incidents was
better at that time than it was at trial.
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When asked about the incident in the hotel pool she had described to
the forensic interviewer, Jane Doe 1 denied that Perez had touched her and
stated, “It’s been a long time,” and “I don’t want to remember stuff.” Jane
Doe 1 did, however, recall two other incidents at the truck stop when she was
12 or 13 years old, during one of which Perez inserted his finger in her vagina
and caused her to bleed, and during the other of which he told her to touch
his penis but she refused.
Jane Doe 2 was 16 years old when she testified. She stated she was 10
years old the first time Perez touched her inappropriately, and he did so in
his bedroom by putting his hands on her breasts, vagina, and buttocks both
over and under her clothing. Jane Doe 2 testified that when she was 11 years
old, Perez put his hand and mouth on her vagina in the living room at his
house. Jane Doe 2 also described two incidents in Perez’s truck. During the
first, he grabbed her and tried to pull her pants down, but she got away.
During the second, he touched and inserted his fingers into her vagina and
grabbed her buttocks. Jane Doe 2 was uncertain about her age at the time of
the incidents in the truck but agreed with the prosecutor she might have
been 12 years old. The forensic interview of Jane Doe 2 was also played for
the jury.
The younger brother of Jane Doe 1 and Jane Doe 2 testified that he
once saw Perez grab Jane Doe 1’s buttocks with both hands in his truck.
Jane Doe 3, a neighbor of Perez, testified that when she was 16 years
old she encountered him standing by his truck while she was walking her
dog. When she greeted him, he brushed his hand against her vaginal area
over her clothes.
The People also presented testimony from three witnesses, a forensic
psychologist, the woman who conducted the forensic interviews of Jane Doe 1
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and Jane Doe 2, and a sex crimes detective, concerning how children respond
to and communicate about sexual abuse by adults and how adult abusers
manipulate child victims. The detective also testified that during an
interview, Perez said Jane Doe 1 and Jane Doe 2 were lying and their mother
“was basically putting them up to it.”
Perez called his wife, daughter, and grandson as witnesses. They
testified they never saw or heard of any instances of Perez inappropriately
touching Jane Doe 1 or Jane Doe 2.
In response to a question from the jury during deliberations, the trial
court identified the act on which each count was based and identified the acts
in counts involving Jane Doe 1 as follows: (1) “hand on vagina at truck stop”;
(2) “mouth on vagina at truck stop”; (3) “finger in vagina at truck stop”;
(4) “sexual intercourse at [Perez’s] house”; and (5) “sexual intercourse at
parent’s house.”
E. Verdicts and Sentence
On counts 1 through 3 and 6 through 9, the jury found Perez guilty of
the charged offenses. On counts 4 and 5, the jury found him not guilty of the
charged offenses but guilty on each count of the lesser included offense of
attempted commission of a lewd and lascivious act on a child under the age of
14 years. The jury also returned a verdict finding true the multiple-victim
allegation under the One Strike law. The trial court sentenced Perez to
prison for an aggregate term of 33 years to life. The court also imposed
restitution and parole revocation restitution fines and court operations and
court facilities assessments.
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II.
DISCUSSION
Perez challenges the sufficiency of the evidence to support the
convictions on counts 1 through 5. He contends “[t]he evidence introduced at
trial concerning Counts 1 through 3 is muddled at best,” because Jane Doe 1
“could recall very few details” about the touching incidents and made
“inconsistent” statements about what occurred and where and how it
occurred. As to counts 4 and 5, Perez contends that at trial, Jane Doe 1
repeatedly denied that Perez ever had sexual intercourse with her; that by
returning verdicts that he was not guilty of the lewd and lascivious acts
charged in those counts, the jury concluded no acts of sexual intercourse had
occurred; and that the People offered no other evidence that would support
convictions of the lesser included offense of attempting to commit a lewd and
lascivious act. Perez argues the convictions on counts 1 through 5 must be
reversed. The People contend sufficient evidence supports the challenged
convictions and ask us to affirm the judgment. They also ask us to order the
trial court to correct the abstract of judgment by checking boxes to indicate
the conviction on count 7 is a serious felony and a violent felony.
A. Sufficiency of the Evidence
In considering a challenge to the sufficiency of the evidence to support a
judgment of conviction, we review the whole record in the light most
favorable to the judgment to determine whether it contains substantial
evidence (i.e., evidence that is reasonable, credible, and of solid value) from
which a rational jury could find the elements of the crime beyond a
reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v.
Johnson (1980) 26 Cal.3d 557, 578; People v. Wilson (2020) 56 Cal.App.5th
128, 153.) Conviction of committing a lewd and lascivious act on a child
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under the age of 14 years requires proof the child was under that age when
the defendant willfully touched the child’s body or willfully caused the child
to touch her own body, the defendant’s body, or someone else’s body, with the
intent to arouse or gratify the sexual desires of the defendant or the child.
(Pen. Code, § 288, subd. (a)1; People v. Martinez (1995) 11 Cal.4th 434, 452
(Martinez); People v. Lopez (2010) 185 Cal.App.4th 1220, 1229.) Conviction of
attempting to commit a lewd or lascivious act upon a child under the age of
14 years requires proof the child was under that age when the defendant,
with intent to arouse or gratify the sexual desires of the defendant or the
child, took a direct but ineffectual step toward that goal. (Pen. Code, §§ 21a,
288, subd. (a); People v. Villagran (2016) 5 Cal.App.5th 880, 890; People v.
Crabtree (2009) 169 Cal.App.4th 1293, 1322 (Crabtree).) As we shall explain,
the evidence introduced at trial was sufficient to support the jury’s guilty
verdicts on counts 1 through 5.
1. Counts 1 through 3
In counts 1, 2, and 3, the People charged Perez with committing lewd
and lascivious acts against Jane Doe 1 at the truck stop, namely, putting his
hand on her vagina, putting his mouth on her vagina, and putting his finger
in her vagina.2 The testimony of the victim of a lewd and lascivious act may
1 As pertinent here, the statute provides that “a 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, is guilty of a felony.” (Pen. Code, § 288,
subd. (a).)
2 Although these acts were performed on the same victim during the
same incident, they constitute distinct violations of Penal Code section 288,
subdivision (a), and support separate convictions and punishments. (People
v. Scott (1994) 9 Cal.4th 331, 346-347; People v. Alvarez (2009) 178
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be sufficient by itself to establish the elements of the crime. (Evid. Code,
§ 411; People v. Westek (1948) 31 Cal.2d 469, 473; People v. Harlan (1990) 222
Cal.App.3d 439, 454.) Jane Doe 1 told the forensic interviewer that she was
11 or 12 years old the first time Perez touched her inappropriately, and
during that incident he took her to a truck stop where he touched, kissed,
licked, and inserted his finger into her vagina. A video recording of the
interview was played for the jury. At trial, Jane Doe 1 similarly described
the incident, but added that Perez had touched and sucked her breast and
said this was not the first time he had touched her inappropriately. The
forensic interview and the trial testimony thus established the age and
touching elements of the charged crimes. The same evidence also sufficiently
established the intent element, which can be and usually is inferred from the
nature of the touching itself and the attendant circumstances. (Martinez,
supra, 11 Cal.4th at p. 445; People v. Mullens (2004) 119 Cal.App.4th 648,
662; In re Paul C. (1990) 221 Cal.App.3d 43, 54.) The jury reasonably could
infer that by touching, kissing, and licking Jane Doe 1’s external sex organs
in the privacy of his truck, Perez was appealing to or gratifying his own
sexual desires. Hence, based on the forensic interview and trial testimony of
Jane Doe 1, the jury could find Perez guilty beyond a reasonable doubt on
counts 1 through 3.
Perez contends, however, that Jane Doe 1’s statements in the forensic
interview and at trial were so confusing, inconsistent, and lacking in detail
that they are insufficient to support the convictions. We are not persuaded.
As long as the victim of child molestation describes the kind of act committed
with sufficient specificity to assure that unlawful conduct has occurred and to
differentiate between types of unlawful conduct, as Jane Doe 1 did by
Cal.App.4th 999, 1006-1007; People v. Van De Water (1980) 108 Cal.App.3d
166, 169.) Perez does not contend otherwise.
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describing the different ways Perez touched her at the truck stop when she
was 11 or 12 years old, the victim need not specify the date, time, place, or
other details of the conduct underlying the charged crime. (People v. Jones
(1990) 51 Cal.3d 294, 315-316 (Jones); People v. Tompkins (2010) 185
Cal.App.4th 1253, 1261 (Tompkins).) The inconsistencies between Jane Doe
1’s statements to the forensic interviewer and to the jury, such as those
concerning whether the incident at the truck stop was the first time Perez
touched her inappropriately, whether he touched her breast during that
incident, and whether he put his mouth on her vagina on more than one
occasion, do not make the evidence insufficient to support the convictions.
Such “details regarding the time, place or circumstance[s] 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.” (Jones, at
p. 316.)
Moreover, the resolution of inconsistencies in testimony is the exclusive
province of the jury unless there is patent falsity, inherent improbability, or
other reason to question the validity of the testimony. (People v. Gomez
(2018) 6 Cal.5th 243, 281 (Gomez).) Jane Doe 1’s statements were not
patently false, inherently improbable, or otherwise of questionable validity.
During the forensic interview and the trial, Jane Doe 1 described several
incidents of molestation by Perez that occurred at different locations over a
period of more than two years. By the time she testified at trial, more than
two-and-a-half years had passed since the forensic interview. It is thus
understandable that Jane Doe 1 might not recall the precise sequence of the
molestation incidents and might confuse the details of one incident with
those of another. “Even though her testimony at trial was somewhat
inconsistent, the inconsistency went only to the weight and credibility of the
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evidence and, on appeal, we do not disturb the jury’s resolution of that
inconsistency.” (Tompkins, supra, 185 Cal.App.4th at p. 1261.)
2. Counts 4 and 5
In counts 4 and 5, the People charged Perez with committing lewd and
lascivious acts against Jane Doe 1 by having sexual intercourse with her,
once at his home and another time at hers. The jury found him not guilty of
the charged offenses but guilty on each count of the lesser included offense of
attempting to commit a lewd and lascivious act. We agree with Perez that
from these verdicts it appears the jury concluded, consistently with Jane Doe
1’s trial testimony, that no completed acts of sexual intercourse occurred. We
disagree, however, that there was no other evidence on which the jury could
find him guilty of attempting to commit sexual intercourse.3 As we discuss
below, Jane Doe 1’s forensic interview and trial testimony sufficiently
support the two attempt convictions.
In the forensic interview, Jane Doe 1 talked in some detail about two
occasions on which Perez had “sex” with her. She told the interviewer that on
the first occasion she was 12-and-a-half years old, they were naked in his
bedroom, and he put his penis “[a] little bit in” her vagina, but she did not
know whether his penis moved or stayed still. After the interview was played
for the jury, Jane Doe 1 testified that Perez had “tried to” have sex with her
on that occasion. When asked during the forensic interview about the next
3 The trial court instructed the jury that if it found Perez not guilty of
any of the charged offenses, it must then decide whether he was guilty of an
attempt to commit the charged offense. (CALCRIM No. 460.) As noted
earlier, the lewd and lascivious act charged in counts 4 and 5 was sexual
intercourse. A jury may find a defendant guilty of attempt as a lesser
included offense of the charged offense where, as here, the only difference
between the attempt and the completed offense is completion of the act
constituting the offense. (Pen. Code, § 1159; People v. Braslaw (2015) 233
Cal.App.4th 1239, 1248.)
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occasion on which Perez put his penis in her vagina, Jane Doe 1 said he put
his finger in her vagina and told her to touch his penis while they were in her
parents’ bedroom. At trial, again after the interview was played, she testified
that he “was trying to put his penis” inside her vagina, but her brother
walked in and told her to go with him. In neither the forensic interview nor
her trial testimony did Jane Doe 1 state how old she was at the time of the
second incident, but the jury could infer she was not yet 13 years old based on
the dates of her birth and the interview, both of which were in evidence.
From this combination of Jane Doe 1’s forensic interview and trial testimony,
the jury reasonably could conclude Perez took direct but ineffectual steps
toward having sexual intercourse with her on two occasions with the intent to
gratify his sexual desires. (See Crabtree, supra, 169 Cal.App.4th at p. 1322
[act unambiguously indicating intent to commit specific crime and
constituting immediate step in committing crime is sufficient to constitute
attempt]; People v. Imler (1992) 9 Cal.App.4th 1178, 1181 [act beyond mere
preparation with intent to commit crime is sufficient for attempt].) In other
words, the jury could find him guilty beyond a reasonable doubt of
attempting to commit a lewd and lascivious act as lesser included offenses of
counts 4 and 5.
Perez nevertheless insists the convictions must be reversed because “it
is not clear at all from the evidence introduced at trial what acts, if any,
constituted the direct but ineffectual step toward committing a lewd and
lascivious act with a child under 14 years of age.” He complains that Jane
Doe 1 “testified to multiple acts on multiple occasions, making it nearly
impossible to determine what direct act [he] allegedly took in an effort to
commit a violation of Penal Code section 288[, subdivision ](a) as to these
specific counts.” We disagree. Jane Doe 1’s trial testimony that Perez “tried
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to” put his penis in her vagina but did not have sexual intercourse with her
on the occasions underlying counts 4 and 5, and her forensic interview
statements that he put his penis a “little bit” inside her vagina on the earlier
occasion and put his finger in her vagina and told her to touch his penis on
the later occasion, together sufficiently specify the direct but ineffectual steps
he took toward having sexual intercourse with her. The nature of those acts
(touching of external sex organs) and the circumstances under which they
occurred (while naked inside bedrooms) sufficiently establish the requisite
intent to arouse or gratify Perez’s sexual desires. Although Perez is correct
that Jane Doe 1 testified about multiple acts of molestation on multiple
occasions, she described the kinds of acts underlying counts 4 and 5 with
sufficient specificity to assure that unlawful conduct occurred and to
differentiate the conduct underlying those counts from that underlying
others. (Jones, supra, 51 Cal.3d at p. 316; Tompkins, supra, 185 Cal.App.4th
at p. 1261.) The contradictions between her forensic interview statements
and trial testimony about the incidents underlying those counts presented
the jury with a credibility determination that we may not disturb on appeal.
(Gomez, supra, 6 Cal.5th at p. 281; People v. Mejia (2007) 155 Cal.App.4th 86,
99; People v. Cantrell (1992) 7 Cal.App.4th 523, 538.)
B. Abstract of Judgment
The People point out a clerical error in the abstract of judgment
pertaining to Perez’s determinate prison term: the boxes for designating the
conviction on count 7 for committing a lewd and lascivious act against Jane
Doe 2 as a serious felony and a violent felony are not checked. That
conviction qualifies as both a serious felony (Pen. Code, § 1192.7, subd. (c)(6))
and a violent felony (id., § 667.5, subd. (c)(6)). We shall order correction of
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the error by the trial court on remand. (See, e.g., People v. Mitchell (2001) 26
Cal.4th 181, 185; People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)
III.
DISPOSITION
The judgment is affirmed. The trial court is ordered on remand to
amend the abstract of judgment by checking the boxes designating the
conviction on count 7 as a serious felony and a violent felony, and to forward
a copy of the amended abstract to the Department of Corrections and
Rehabilitation.
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
O’ROURKE, J.
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