People v. Gonzalez CA4/3 ( 2024 )

Filed 10/4/24 P. v. Gonzalez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G063481
v. (Super. Ct. No. INF1901843)
VICENTE GARCIA GONZALEZ, ORDER MODIFYING
OPINION; NO CHANGE IN
Defendant and Appellant. JUDGMENT
It is ordered that the opinion filed on September 20, 2024, be
modified as follows:
On page 3, first line, replace “count 2” with “count 1” so that it
reads, “on count 1 to reflect a conviction for the lesser included offense of
violation of Penal Code section 288, subdivision (a) and remand for
resentencing.”
There is no change in the judgment.
SANCHEZ, J.
WE CONCUR:
GOETHALS, ACTING P. J.
MOTOIKE, J.
2
Filed 9/20/24 P. v. Gonzalez CA4/3 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G063481
v. (Super. Ct. No. INF1901843)
VICENTE GARCIA GONZALEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Riverside
County, Dean Benjamini, Judge. Affirmed in part, modified in part, and
remanded with directions.
Joanna McKim, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.
Swenson and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *
INTRODUCTION
A jury convicted Vicente Garcia Gonzalez of six counts (counts 1-
6) of committing forcible lewd acts on a child under 14 years of age in
violation of Penal Code section 288, subdivision (b)(1) (section 288(b)(1)) and
one count (count 7) of committing a lewd act on a child who was 14 or 15
years of age and was more than 10 years younger than he, in violation of
Penal Code section 288, subdivision. (c)(1). The victim in each count was
Jane Doe, who was born in 2005. The trial court sentenced Gonzalez to a
total prison sentence of 30 years 8 months.
Gonzalez challenges his conviction on three grounds: (1) the
prosecutor committed error during closing argument;1 (2) the evidence was
insufficient to prove he committed the crimes charged in counts 1 through 6
by means of force or duress; (3) the evidence was insufficient to prove Jane
Doe was eight and nine years old, respectively, when he committed the acts
alleged in counts 1 and 2. In addition, Gonzalez argues the court operations
assessment and criminal conviction assessment must be stricken from the
judgment because the trial court did not orally impose them at sentencing.
We affirm with a modification and a limited remand. As we shall
explain, the prosecutor did not commit error. The record has sufficient
evidence that Gonzalez used force to commit the acts alleged in counts 2
through 6, but insufficient evidence that Gonzalez used force or duress to
commit the acts alleged in count 1. As a consequence, we modify the verdict
1
We use the term prosecutorial error rather than prosecutorial
misconduct because prosecutorial misconduct “‘is somewhat of a misnomer to
the extent that it suggests a prosecutor must act with a culpable state of
mind.’” (People v. Centeno (2014) 60 Cal.4th 659, 666-667.) “‘A more apt
description of the transgression is prosecutorial error.’” (Id. at p. 667.)
2
on count 2 to reflect a conviction for the lesser included offense of violation of
Penal Code section 288, subdivision (a) and remand for resentencing. The
record has sufficient evidence that Jane Doe was eight years old when
Gonzalez committed the acts alleged in count 1 and nine years old when
Gonzalez committed the acts alleged in 2. Finally, we strike the court
operations assessment and criminal conviction assessment and remand for
the court to orally impose those assessments and provide Gonzalez the
opportunity to object to them.
FACTS
Jane Doe was born in 2005. She grew up in a home with her
younger brother and their mother (Mother). When Jane Doe was about five
years old, Gonzalez, who was Mother’s boyfriend, moved into their home.
Although Gonzalez is not the biological father of Jane Doe or her younger
brother, she viewed Gonzalez as her stepfather or a “second father.”
Gonzalez and Mother slept in the main bedroom, and Jane Doe
and her younger brother slept in the same bed in the other bedroom.
Gonzalez worked evening hours at his job and typically arrived home from
work around 1:00 a.m.
Gonzalez started molesting Jane Doe when she was seven or
eight years old. Gonzalez would enter Jane Doe’s bedroom after coming home
from work and touch her chest, buttocks, vagina, and “every part of her body”
while she laid in bed. He did this on a daily basis. When Gonzalez started
molesting Jane Doe, she was so young she believed it was a “monster,” not
Gonzalez, who was touching her. After she turned nine years old, she
realized it was Gonzalez who had been touching her because she saw his face.
3
Once Jane Doe understood what Gonzalez was doing to her, she
started to “fight back” by moving around in bed and covering herself, kicking
her legs, pushing him away, or screaming. When Jane Doe pushed Gonzalez
away, he would stop touching her, but then would “come back.” Kicking
would make Gonzalez stop, but moving around in bed would only cause him
to pause. When Jane Doe would ask Gonzalez to “[l]eave [her] alone,” he
would stay quiet. Despite Jane Doe’s efforts to make Gonzalez stop touching
her, he continued to molest her.
Jane Doe was scared every time Gonzalez touched her. She felt
as though she were trapped in a hole and did not know what to do. She did
not tell anyone about what Gonzalez was doing because she did not think
anyone would believe her. She did not know to whom to turn. Jane Doe felt
“alone in this world” and “trapped” and wanted to “just give up [her] life.”
Gonzalez continued to molest Jane Doe on a regular basis until
she was 14 years old. The day before he went to jail, he gave Jane Doe a
letter in which he apologized to her for touching her. On the day Gonzalez
gave Jane Doe the letter, he spoke with her and asked her to forgive him for
touching her. He asked her not to tell anyone about his actions because he
was providing for the family. Gonzalez then told Mother that he had been
inappropriately touching Jane Doe. Mother went to Jane Doe and asked her
to tell her the truth about what Gonzalez had done. Jane Doe confirmed that
Gonzalez had been molesting her. Mother was in shock and immediately
called the police.
A police officer arrived later that afternoon. Mother told the
officer Gonzalez had molested Jane Doe. That evening, Gonzalez drove
himself to the police station, where he was interviewed. During the
interview, which was video recorded, Gonzalez admitted he had repeatedly
4
touched Jane Doe’s vagina over her clothing, at night, beginning when she
was 10 years old and ending about two months before the interview.
Gonzalez said he would sometimes move Jane Doe’s hand away to touch her
and that Jane Doe would move him away or kick him. He acknowledged he
had given Jane Doe a letter asking her to forgive him for what he had done to
her and to not tell anyone.
A few days later, Jane Doe was forensically interviewed at a
children’s center. During the interview, which was video recorded, Jane Doe
said that Gonzalez had “touched” or “grab[bed]” her “boobs,” “butt,” and
vagina, over her clothes, at night, starting when she was about seven or eight
years old and continuing until about a month before the interview. She said
she thought it was a “creature” touching her at night until she was around 12
years old and saw Gonzalez’s face. Jane Doe said that while in middle school,
she understood what Gonzalez was doing, she began to move around in the
bed and cover herself to try to stop Gonzalez from touching her. Gonzalez
would uncover Jane Done and resume touching her.
Gonzalez was arrested after Jane Doe’s interview. During
another video recorded interview, Gonzalez estimated he had touched Jane
Doe’s vagina at least 150 times, and her breasts “maybe” once over her
clothes, during a long period of time, starting when she was nine or 10 years
old. Gonzalez said it “felt good” to touch Jane Doe. Gonzalez said he had
asked Jane Doe to forgive him. Although Gonzalez had told Jane Doe she
had “the will” to decide for herself whether to tell anyone, he also told her
that if she did tell anyone, he would go to jail for many years and her younger
siblings “needed us.”
5
DISCUSSION
I.
THE PROSECUTOR DID NOT COMMIT ERROR
Gonzalez argues the judgment should be reversed due to
statements made by the prosecutor during closing and rebuttal arguments
which, Gonzalez contends, constitute prosecutorial error. We note at the
outset Gonzalez’s trial counsel did not object to any of the prosecutor’s
statements claimed to be erroneous or request the court to admonish the jury.
(People v. Navarro (2021) 12 Cal.5th 285, 332.) His claim of prosecutorial
error is therefore deemed forfeited and reviewable only by means of a claim
for ineffective assistance of counsel. (People v. Centeno, supra, 60 Cal.4th at
p. 674.) We address that claim nonetheless and conclude the prosecutor did
not commit error.
A prosecutor’s conduct violates the federal Constitution when the
conduct “‘infects the trial with such unfairness as to make the conviction a
denial of due process’”; that is, when the conduct is “‘of sufficient significance
to result in the denial of the defendant’s right to a fair trial.’” (People v.
Harrison (2005) 35 Cal.4th 208, 242.) A prosecutor’s argument that does not
render a criminal trial fundamentally unfair violates California law only if
the conduct involves “‘“‘the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.’”’” (Ibid.)
Gonzalez argues the prosecutor committed error in two respects.
First, Gonzalez argues, the prosecutor committed error by referring to him as
a monster. At the start of the prosecutor’s closing argument, the prosecutor
argued: “This is the age where she’s supposed to feel safe going to sleep, the
age where her mother and her stepfather are protecting her and her siblings.
But instead of that, there was a monster in the house—the defendant. And
6
when (Jane Doe) was this old, the defendant began coming into her room at
night.” (Italics added.) At the end of the prosecutor’s closing argument, the
prosecutor argued: “Ladies and gentlemen, the evidence in this case is
overwhelming. Through (Jane Doe)’s testimony of that dominance, the
monster that was touching her every night. Her testimony of how afraid she
was, how scared she was, how trapped she felt. That’s the duress.” (Italics
added.) During rebuttal, the prosecutor stated: “The only reasonable
conclusion you can draw from the evidence you received during this trial is
that the defendant is guilty of the 288(b)(1)’s in Count 1 through 6. And I ask
that you hold (Jane Doe)’s monster guilty of all seven counts.” (Italics added.)
“Prosecutors ‘are allowed a wide range of descriptive comment
and the use of epithets which are reasonably warranted by the evidence’
[citation], as long as the comments are not inflammatory and principally
aimed at arousing the passion or prejudice of the jury [citation].” (People v.
Farnam (2002) 28 Cal.4th 107, 168.)
Referring to Gonzalez as a “monster” and “(Jane Doe)’s monster”
was warranted by the evidence. Jane Doe testified that when Gonzalez
started molesting her, she was so young that she believed it was a “monster”
who was coming into her bedroom at night and touching her. When she was
nine years old, Jane Doe realized it was Gonzalez, and not the imagined
monster, who was touching her. During her forensic interview, Jane Doe said
she thought a “creature” was touching her at night. The prosecutor
permissibly relied on Jane Doe’s testimony to make the point that Gonzalez
was in fact the monster who Jane Doe believed was molesting her.
7
The second respect in which Gonzalez argues the prosecutor
committed error was by misstating the law as to the amount of force
necessary for a conviction under section 288(b)(1). In rebuttal, the prosecutor
argued: “That’s the only force necessary—is putting your hand out and
rubbing the private area that you want to touch. That’s the only force that’s
required.” (Italics added.) Gonzalez contends that argument misstates the
requirement of section 288(b)(1) that the prosecution must prove that a
defendant used force that was substantially different from or substantially
greater than the physical force normally inherent in the sexual act
committed. (See People v. Soto (2011) 51 Cal.4th 229, 242.)
Viewed in isolation, the prosecutor’s argument appears to
misstate the law. But to find prosecutorial error, we must view the
challenged statement in the context of the entire argument and the jury
instructions to determine whether there was a reasonable likelihood the jury
understood or applied the comments in an improper or erroneous manner.
(People v. Cortez (2016) 63 Cal.4th 101, 130-131 (Cortez).) “If the challenged
comments, viewed in context, ‘would have been taken by a juror to state or
imply nothing harmful, [then] they obviously cannot be deemed
objectionable.’” (Id. at p. 130.)
Just before making the challenged statement, the prosecutor
correctly told the jury, “Now we also heard a little bit about force, right, and
the law states that it has to be substantially different or substantially
greater, right.” After making the challenged statement, the prosecutor
argued: “Pulling the sheet down, that’s substantially different. It doesn’t
involve touching her body. It involves exposing that part of the body.
Substantially different. Also, substantially greater, because that requires to
take both hands, pull the sheet down, and then do what you’re going to do.
8
That goes for pulling the sheets down, stopping her from kicking, moving the
hand away from her vagina when she’s attempting to protect herself.” The
prosecutor thereby clarified that convictions were being sought under section
288(b)(1) based on evidence of force that was different from or greater than
2
the physical force inherent in the sexual acts committed against Jane Doe.
In addition, the jury was instructed with CALCRIM No. 1111
that the amount of force must be “substantially different from or
substantially greater than the force needed to accomplish the act itself.” We
presume the jury followed the court’s instructions, rather than any conflicting
comments by counsel, in reaching a verdict. (Cortez, supra, 63 Cal.4th at
p. 131.) There was no reasonable likelihood the challenged part of the
prosecutor’s argument, when viewed in context of the entire argument and
the jury instructions, would have been understood by the jury in an improper
or erroneous manner.
II.
THERE IS SUBSTANTIAL EVIDENCE OF FORCE ON COUNTS 2 THROUGH 6 BUT
INSUFFICIENT EVIDENCE OF FORCE OR DURESS ON COUNT 1
Gonzalez argues his convictions under counts 1 through 6 must
be reversed because the evidence was insufficient to support a finding he
used force, violence, duress, menace, or fear to commit the lewd acts against
Jane Doe. As to counts 2 through 6, we conclude there is sufficient evidence
of force, but as to count 1 there is not sufficient evidence of force or duress.
2
In his reply brief, Gonzales suggests the prosecutor misstated
the law because the actions described by the prosecutor do not constitute
force sufficient for a conviction under section 288(b)(1). The prosecutor was
not making a statement of law but addressing the evidence. Further, in part
III of the Discussion section, we conclude those actions are sufficient.
9
A. Relevant Law and Standard of Review
Section 288(b)(1) makes punishable the commission of lewd or
lascivious acts against a child under the age of 14 that are committed “by use
of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.” Force under section 288(b)(1) means
physical force that is “‘substantially different from or substantially greater
than that necessary to accomplish the lewd act itself.’” (People v. Soto, supra,51 Cal.4th at p. 242.) “‘[A]n act is forcible if force facilitated the act rather
than being merely incidental to the act.’” (People v. Morales (2018) 29
Cal.App.5th 471, 480.) “‘[A]cts of grabbing, holding and restraining that
occur in conjunction with the lewd acts themselves’ are sufficient to support a
finding that the lewd act was committed by means of force.” (Ibid.)
“Where, as here, a defendant challenges the sufficiency of the
evidence on appeal, we review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial evidence—
evidence that is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Hubbard (2016) 63 Cal.4th 378, 392.) “[I]t is the jury, not
the reviewing court, that must weigh the evidence, resolve conflicting
inferences, and determine whether the prosecution established guilt beyond a
reasonable doubt.” (Ibid.)
B. Counts 2 through 6: Sufficient Evidence of Force
As to counts 2 through 6, Jane Doe testified that, when Gonzalez
touched her, she would fight back by pushing him away. Although Gonzalez
would leave, she testified that “he would come back.” Jane Doe testified she
would move around in bed to get Gonzalez to stop and that would only cause
10
him to pause. Jane Doe could not stop Gonzalez from touching her. During
his police interview, Gonzalez said that Jane Doe would move away from him
and kick him and he would move her hand away so that he could touch her.
Gonzalez argues that moving about, kicking, and screaming did
not constitute force inflicted by him to accomplish the touching because he
would stop when she did those things. Jane Doe testified that moving about
in bed would only cause Gonzalez to pause, not to stop, and the jury could
consider Jane Doe’s resistance by kicking and screaming in assessing
whether Gonzalez used force to accomplish the lewd acts. (People v. Babcock
(1993) 14 Cal.App.4th 383, 387.) From the testimony that Jane Doe had to
kick Gonzalez or scream to make him stop, a reasonable juror could conclude
that Gonzalez used force. (See People v. Jimenez (2019) 35 Cal.App.5th 373,
393 (Jimenez).)
Jimenez is analogous. In Jimenez, the victim was asked at trial
what she did physically to try to make the defendant stop molesting her.
(Jimenez, supra, 35 Cal.App.5th at p. 393.) She answered, “‘[B]y pushing him
away.’” When asked if that made the defendant stop, the victim answered:
“‘Yes. And then he would try again and try again.’” (Ibid.) The defendant
challenged his conviction for violating section 288(b)(1) on the ground that
the evidence was insufficient to prove he used force against the victim.
(Jimenez, at p. 392.) The Court of Appeal concluded the evidence of force was
sufficient because “[t]he jury could infer from this that [the defendant] used
physical force to overcome [the victim]’s attempts to push him away.” (Ibid.)
Likewise, here Jane Doe testified that when she pushed Gonzalez
away, “he would come back” and that moving around in bed would only cause
him to pause. In addition, Gonzalez said during his police interview that he
11
would move Jane Doe’s hand, which facilitated the commission of the lewd
act.
C. Count 1: Insufficient Evidence of Force or Duress
The Attorney General acknowledges the evidence of force does
not include count 1, which covered the time period when Jane Doe was eight
years old, because Jane Doe did not begin to resist Gonzalez until she was
nine years old. The Attorney General argues as to count 1 that Gonzalez
committed the lewd acts by use of duress.
For purposes of section 288(b)(1) “duress” means “‘a direct or
implied threat of force, violence, danger, hardship or retribution sufficient to
coerce a reasonable person of ordinary susceptibilities to (1) perform an act
which otherwise would not have been performed or, (2) acquiesce in an act to
which one otherwise would not have submitted.’” (People v. Leal (2004) 33
Cal.4th 999, 1004.)
The jury determines duress by considering the totality of the
circumstances. (People v. Veale (2008) 160 Cal.App.4th 40, 46 (Veale).)
Relevant factors include the victim’s age, the victim’s relationship to the
defendant, threats to harm the victim, physically controlling the victim when
the victim attempts to resist, and warnings to the victim that revelation of
the molestation would place the family in jeopardy. (Ibid.)
Of those factors, only Jane Doe’s relative age, relationship, and
size to Gonzalez are present as to count 1. Jane Doe was eight years old,
Gonzalez was her stepfather and 44 to 45 years old. Jane Doe was much
smaller in size than Gonzalez. No other factors were present. Gonzalez did
ask Jane Doe at one point not to tell anyone about what he had done for fear
he would go to prison, but that was years after the time period alleged in
12
count 1. The Attorney General cites to Jane Doe’s testimony of fear and not
wanting to tell anyone because she thought she would not be believed. But
“duress is measured by a purely objective standard” and focuses on the
defendant’s actions, not the victim’s response. (People v. Soto, supra, 51
Cal.4th at p. 246.)
The Attorney General argues age, size differential, and
relationship between Gonzalez and Jane Doe are sufficient evidence of
duress. In support of that argument, the Attorney General points to cases
stating: “The fact that the victim testifies the defendant did not use force or
threats does not preclude a finding of duress. [Citation.] When the victim is
young and is molested by her father in the family home, duress will be
present in all but the rarest cases.” (People v. Thomas (2017) 15 Cal.App.5th
1063, 1072-1073 (Thomas), citing Veale, supra, 160 Cal.App.4th at p. 49,
citing People v. Cochran (2002) 103 Cal.App.4th 8, 16, fn. 6 (Cochran).)
But more was present in Thomas, Veale, and Cochran than age,
size, and relationship. In Thomas, the victim was compelled to engage in sex
acts “in response to parental authority and violent intimidation,” and the
court concluded the jury could have found the defendant’s “continual beatings
constituted an implied threat of violence . . . .” (Thomas, supra, 15
Cal.App.5th at p. 1073.) In Veale, supra, 160 Cal.App.4th 40, the court found
“the evidence is sufficient to support a finding of duress, based on [the
victim’s] age and size; her relationship to [the] defendant; and her testimony
that she feared [the] defendant and feared he would harm or kill her or [her]
mother if she told anyone [the] defendant was molesting her.” (Id. at
pp. 48-49.)
In Cochran, the victim was nine years old and resided with the
defendant, who was her father. The victim was four feet three inches tall and
13
the defendant was five feet nine inches tall and outweighed her by about 100
pounds. (Cochran, supra, 103 Cal.App.4th at p. 15.) A video recording
showed the victim reluctantly engaging in sexual conduct with the defendant
only when he directed and coached her. (Ibid.) The defendant discounted the
victim’s concern about her mother returning home. (Ibid.) The victim
testified that when she was mad or sad about what the defendant was doing
to her, he gave her money or gifts and, when they were alone together, he told
her not to tell anyone because he would get in trouble and could go to jail.
(Ibid.)
No evidence was presented at trial that during the time period
alleged in count 1 Gonzalez intimidated Jane Doe or made any express or
implied threats to her, or that Jane Doe made any oral or physical response
to his lewd acts. Although Gonzalez was Jane Doe’s stepfather, she believed
it was monster who was touching her and only later, after the time period
alleged in count 1, did she realize it was Gonzalez.
The Attorney General invites us to modify the verdict to reflect a
conviction for the lesser included offense of violating Penal Code section 288,
subdivision (a)3 in the event we conclude the evidence was insufficient to
support a conviction under section 288(b)(1) for any count. That procedure is
appropriate. (Pen. Code, § 1181, subd. (6); see People v. Navarro (2007) 40
Cal.4th 668, 676-677 [appellate court has power to modify a verdict to reflect
3
Penal Code section 288, subdivision (a) makes punishable the
commission of lewd or lascivious acts against a child under the age of 14
without requiring the acts to have been committed by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury.
14
a conviction on a lesser included offense after finding insufficient evidence
supported conviction on the greater offense].)
The evidence in the present case, though insufficient to support a
conviction on count 1 for violation of section 288(b), is sufficient to support a
4
conviction for violation of Penal Code section 288, subdivision (a). We
conclude in part III of the Discussion section that there is substantial
evidence in the record that Jane Doe was eight years old when Gonzalez
committed acts alleged in count 1. Committing a lewd or lascivious act on a
child under 14 years of age in violation of Penal Code section 288, subdivision
(a) is a lesser included offense to committing a lewd or lascivious act by force
or fear on a child under 14 years of age in violation of section 288(b)(1).
(People v. Chan (2005) 128 Cal.App.4th 408, 421.) The jury was so
instructed. Accordingly, we modify the verdict on count 1 to reflect a
conviction for violation of Penal Code section 288, subdivision (a) and remand
the matter for resentencing.
III.
THERE IS SUBST0ANTIAL EVIDENCE OF JANE DOE’S AGE TO SUPPORT
THE CONVICTIONS ON COUNTS 1 AND 2
In count 1, it was alleged that Gonzalez placed his hand on Jane
Doe’s vagina when she was eight years old “on or between July 5, 2013 to
July 4, 2014.” In count 2 it was alleged that Gonzalez placed his hand on
Jane Doe’s vagina when she was nine years old “on or between July 5, 2014 to
July 5, 2015.” Gonzalez contends the convictions on counts 1 and 2 must be
4
Violation of section 288(b)(1) is punishable by imprisonment for
five, eight, or 10 years. The trial court sentenced Gonzalez on count 1 to the
low term of five years. Violation of Penal Code section 288, subdivision (a) is
punishable by imprisonment for three, six, or eight years.
15
reversed because there is not substantial evidence that Jane Doe was eight
and nine years old, respectively, when he committed the acts alleged in those
counts.
The jury was instructed with a modified version of CALCRIM No.
5
3501 entitled, “Unanimity: When Generic Testimony of Offense Presented.”
Date ranges were given for each count. “The unanimity rule has been refined
in cases involving sexual molestation of children and repeated identical
offenses. ‘In such cases, although the jury may not be able to readily
distinguish between the various acts, it is certainly capable of unanimously
agreeing that they took place in the number and manner described.’” (People
v. Fernandez (2013) 216 Cal.App.4th 540, 556-557.) The victim’s generic
testimony constitutes substantial evidence under the unanimity rule if:
(1) the victim describes the kind of acts committed with sufficient specificity
to show that the acts were unlawful and to enable differentiation between the
types of unlawful conduct; (2) the victim describes the number of acts
committed with sufficient certainty to support each of the counts alleged; and
(3) the victim describes the general time period in which the acts occurred to
assure the acts were committed within the applicable limitations period.
(People v. Jones (1990) 51 Cal.3d 294, 316.)
Gonzalez argues the evidence was insufficient to support the
third requirement. We disagree. Jane Doe testified that Gonzalez touched
5
The jury was instructed: “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.”
16
her “vagina and butt” starting when she was seven or eight years old. She
testified he touched her “[s]everal times a day.” Jane Doe testified she was
“confident” that Gonzalez started touching her when she was seven or eight
years old. During her forensic interview, Jane Doe said Gonzalez started
touching her “probably like, around first grade” at “around age 7.” As Jane
Doe was born on July 4, 2005, her testimony established that Gonzalez
touched her during date ranges alleged in counts 1 and 2.
Gonzalez cites to testimony by the forensic interviewer that she
believed Jane Doe was “just guessing at 7 and 8,” testimony by Mother that
Jane Doe told her the touching started when Jane Doe was nine or 10 years
old, and testimony by an investigating police officer that Gonzalez said in an
interview that he started touching Jane Doe when she was “‘about 10 years
old.’” However, “‘[r]esolution of conflicts and inconsistencies in the testimony
is the exclusive province of the trier of fact.’” (People v. Ramirez (2022) 13
Cal.5th 997, 1118.) “‘[U]nless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient to support a
conviction.’” (Ibid.) Jane Doe’s testimony was neither physically impossible
nor inherently improbable and constituted substantial evidence supporting
the convictions on counts 1 and 2.
IV.
THE COURT OPERATION ASSESSMENT AND CRIMINAL CONVICTIONS
ASSESSMENT ARE STRICKEN
Gonzalez contends the $280 court operations assessment (Pen.
Code, § 1465.8, subd. (a)(1)) and the $210 criminal convictions assessment
(Gov. Code, § 70373, subd. (a)(1)) imposed by minute order and the abstract of
17
judgment must be stricken because the trial court did not orally pronounce
6
those assessments.
Gonzalez is correct in asserting the trial court did not orally
impose those assessments. When there is a discrepancy between the trial
court’s oral pronouncement and the minute order or abstract of judgment, the
oral pronouncement controls. (People v. Costella (2017) 11 Cal.App.5th 1, 10.)
The assessments imposed under Penal Code section 1465.8,
subdivision (a)(1) and Government Code section 70373, subdivision (a)(1) are
mandatory and a required part of a defendant’s sentence. (See People v.
Robinson (2012) 209 Cal.App.4th 401, 405.) The Attorney General argues the
oral pronouncement therefore can and should be corrected on appeal.
However, because those assessments were not orally pronounced, Gonzalez
did not have the opportunity to object to them pursuant to People v. Dueñas
(2019) 30 Cal.App.5th 1157, 1172-1173 based on his inability to pay. Upon
resentencing on count 1, the trial court may orally pronounce the
assessments on all counts and provide Gonzalez the opportunity to object to
them.
6
Pursuant to Penal Code section 1465.8, subdivision (a)(1), “an
assessment of forty dollars ($40) shall be imposed on every conviction for a
criminal offense,” and pursuant to Government Code section 70373,
subdivision (a)(1), “an assessment [of $30] shall be imposed on every
conviction for a criminal offense . . . .” Gonzalez was convicted on seven
counts, leading to assessments under those code sections, respectively, of
$280 and $210.
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DISPOSITION
Gonzalez’s conviction and sentence on count 1 for violation of
section 288(b)(1) is vacated and the judgment is modified to reflect a
conviction for violation of Penal Code section 288, subdivision (a). The court
operations assessment fee and criminal convictions assessment fee are
stricken. The matter is remanded for the sole purposes of resentencing on
count 1, imposition of those assessments, and consideration of any objection
Gonzalez makes to those assessments. In all other respects, the judgment is
affirmed.
SANCHEZ, J.
WE CONCUR:
GOETHALS, ACTING P. J.
MOTOIKE, J.
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