People v. Mendez CA2/8

Filed 10/27/21 P. v. Mendez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B304188
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA119553)
v.
ARTHUR GILBERT MENDEZ, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Bruce F. Marrs, Judge. Affirmed as modified.
Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
Appellant Arthur Gilbert Mendez, Jr. was convicted by a
jury of 24 counts of sexual abuse perpetrated upon four of his
minor daughters and a minor step-daughter. He was sentenced
to a term of 390 years to life. We reject his factual challenge to
four of the 24 counts but agree with the parties that the sentence
on the same four counts must be reduced from 25 years to life to
15 years to life. In all other respects, we affirm the judgment.
THE CONVICTIONS
The minor victims were K. and Ia., twins born in February
2003, C., born September 2005, A., born May 2007, and step-
daughter I., born April 1993.
The jury found appellant guilty as charged. The verdicts
were, as to each of the several victims: victim K., one count of
sexual penetration by use of force (count 1), four counts of forcible
rape (counts 2, 3, 7, 8), one count of forcible oral copulation
(count 4), three counts of child abuse (counts 5, 6, 10), and one
count of sodomy by use of force (count 9); victim A., one count of
child abuse (count 11); victim C., two counts of child abuse
(counts 12, 13)1; victim Ia., three counts of child abuse (counts 14-
16), one count of forcible rape (count 17), one count of sexual
penetration by use of force (count 18), one count of forcible oral
copulation (count 19), and one count of sodomy by use of force
(count 20); and victim I., four counts of forcible lewd act upon a
child2 (counts 21–24).
1 On the People’s motion, counts 12 and 13 were dismissed as
barred by the statute of limitations.
2 Penal Code section 288, subdivision (b)(1).
All further statutory references are to the Penal Code.
2
The only convictions factually challenged by this appeal are
the four counts (21–24) as to victim I.
The jury also found true the allegations that K. was a
minor 14 years of age or older, that Ia. was a child under 14 years
of age, that appellant used a deadly weapon (a knife) (§ 12022,
subd. (b)(1)) in counts 6 and 16, and that appellant committed an
offense against more than one victim (§ 667.61).
In addition to sentencing appellant to a term of 390 years
to life, the court imposed a variety of fines and fees totaling
$13,590. We reject appellant’s various challenges to the fines and
fees imposed.
The appeal is from the judgment.
THE FACTS
Appellant does not challenge the jury’s verdict on counts 1
through 20. Given the sensitive nature of the evidence on these
counts, the youth of the victims, and the general presumption of
the correctness of the judgment (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564), we need not summarize the evidence
that supports the conviction of these 20 counts. We note,
however, that sexual abuse inflicted by appellant on these minor
children was endemic to their relationship.
Appellant contends there is insufficient evidence that he
used force or duress in committing the lewd acts upon I. and that
he therefore did not violate subdivision (b)(1) of section 288.
Appellant’s contention requires a brief note on the structure of
section 288.
Subdivision (a) of section 288 punishes the commission of a
lewd act upon a child under the age of 14 years.3 Subdivision (b)
3 “Except as provided in subdivision (i), a person who
willfully and lewdly commits any lewd or lascivious act, including
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of section 288, based on subdivision (a), provides for a more
serious felony than that set forth in subdivision (a): “A 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, is guilty of a felony
and shall be punished by imprisonment in the state prison for 5,
8, or 10 years.” (§ 288, subd. (b)(1).) Appellant was found guilty
of four violations of section 288, subdivision (b)(1) with I. as the
victim of these offenses.
We limit our summary of the facts to the evidence that
supports appellant’s conviction of these four offenses.
When I. was eight or nine years old, appellant moved in
with I.’s mother, I., and her two younger brothers in an
apartment in El Monte. Appellant was in a relationship with I.’s
mother. Although he was not I.’s biological father, I. viewed
appellant as a father figure. I. described the atmosphere in this
home as “very toxic” with appellant and I.’s mother fighting a lot.
Appellant would physically abuse not only I.’s mother but also
her siblings. I. was the only one who was not getting spanked or
yelled at. I. witnessed appellant “sock” her mother in the face
and “beat her down.”
I. witnessed appellant hit her brothers with belts and with
his hands. One time, when I.’s brothers were jumping on their
beds, appellant grabbed a piece of wood that held up the bed and
any of the acts constituting other crimes provided for in Part 1,
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 and shall be
punished by imprisonment in the state prison for three, six, or
eight years.” (§ 288, subd. (a).)
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hit them with it. Appellant hit the brothers “[o]n their backs.
Anywhere.” The physical abuse of I.’s mother and brothers
happened about once a week.
A few months after he moved in, appellant began to touch I.
inappropriately. One night, when I. was eight or nine years old,
she and appellant were lying on the bed in appellant’s bedroom,
and appellant grabbed I.’s breasts. I. did not do anything. “I was
scared to say anything and get in trouble.” She was
embarrassed.
The next incident she remembered “was at nighttime
and . . . I would sleep in the bed with [appellant] and my mom.
And he would move me onto the floor while my mom would be
asleep on the bed. And he would lay behind me . . . . He started
off touching my breasts, and then he started to move his
hands down to my pants.” I. was “confused and scared.”
The next incident: “Same thing. We were in the room.
He would move me onto the floor and he’d lay behind me and he’d
grab my breasts. Then he’d move his hands down into my pants.
This time he inserted his fingers into my vagina.” She felt pain
but did not say anything. “I was confused. Scared. I didn’t want
to end up like my brothers or my mom getting hit.”
“The next time, same thing. We’d be in the room. He’d
move me onto the floor. He’d be behind me. He’d start by
touching my breasts, then he’d touch my vagina. This time he
pulled down my pants, and he began performing oral sex on me.”
I. was still eight to nine years old at the time. When asked how
she felt, she said she “was always scared.”
“The next time we were in the room, he laid me on the floor.
He was behind me. Started by touching my breasts. Then he
touched my vagina. Then he’d pull my pants down just a little
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bit, and he would put his penis in between my butt.” Appellant
also inserted his penis into I.’s vagina “a little,” which hurt. I. did
not tell appellant that it hurt because she was “scared to speak
up.”
These sexually abusive encounters continued with I.
testifying that she was “scared like always.” Appellant’s sexual
abuse extended in time to oral sex which happened about once a
week.
When the prosecutor asked her whether she ever felt that
she could fight back, I. said no. When asked why not, she
answered: “I was just a little girl. I felt like if I fought back I
would get in trouble, or he would start hitting me the way he was
hitting my mom and my brothers.”
DISCUSSION
I. The Evidence Supports Appellant’s Convictions of
Penal Code Section 288 (b)(1)
Appellant contends he did not use more force than was
necessary in the commission of the lewd acts themselves and that
therefore he cannot be liable under subdivision (b)(1) of section
288. He relies in part on People v. Schulz (1992) 2 Cal.App.4th
999 (Schulz) and People v. Senior (1992) 3 Cal.App.4th 765(Senior).
Appellant acknowledges Schulz and Senior have come
under criticism for their strict interpretation of “force” by other
Courts of Appeal. Apart from that, however, subdivision (b)(1) of
section 288 is not limited to the use of force in committing a lewd
act. Subdivision (b)(1) of section 288 applies when there is the
“use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person.”
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In reviewing the record for substantial evidence (People v.
Redmond (1969) 71 Cal.2d 745, 755), we draw all reasonable
inferences in favor of the judgment to determine whether there is
reasonable and credible evidence from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.
(People v. Jackson (2014) 58 Cal.4th 724, 749.)
We agree with the Attorney General that substantial
evidence supports these convictions under the prosecution’s
theory of “duress.” In charging the jury, the trial court defined
”duress” as 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.” The instruction
also told the jurors that, “The total circumstances, including the
age of the victim, and his/her relationship to defendant, are
factors to consider in apprising the existence of duress.” At the
time appellant committed his sexual abuse on her, I. was a young
child who was eight to nine years old.
Appellant claims that there “was no evidence that he
utilized any direct or implied threat in accomplishing the lewd
touchings of [I.] as would constitute duress.” Not so. I. clearly
testified to appellant’s constant pattern of physical attacks on
family members including her brothers — ostensibly to gain
control over family members and their behavior. Appellant
created this atmosphere of duress of which he took full
advantage. In this home setting of constant violence, I. had every
reason to believe appellant would attack her if she did not quietly
submit. Time and time again, appellant showed himself to be a
person who inflicted violence not only on I.’s mother, but also on
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her brothers. I. relented because she believed appellant would
physically harm her if she resisted.
“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.) Substantial evidence supports these convictions under a
theory of duress.
II. Appellant’s Sentences on Counts 21 Through 24 Must
Be Modified
The acts alleged in counts 21 through 24 occurred between
April 24, 2001 and April 23, 2004. “A criminal defendant is
entitled to the application of statutes in effect at the time his
offense was committed.” (People v. Gibson (2016) 2 Cal.App.5th
315, 322, fn. 4.) At the time these offenses were committed,
subdivision (b) of section 667.61 provided for a punishment of 15
years to life. It was not until 2010 that the penalty was increased
to 25 years to life.
The sentences on these four counts must, therefore, be
modified to the applicable punishment in existence at the time
appellant committed these crimes – which is 15 years to life
III. Appellant Forfeited His Challenge of the Fines and
Fees Imposed By the Trial Court
Relying on People v. Duenas (2019) 30 Cal.App.5th 1157(Duenas), and U.S. v. Bajakajian (1998) 524 U.S. 321, appellant
contends the trial court’s imposition of fines and fees is
unconstitutional under both the Due Process Clause as well as
the Excessive Fines Clause of the federal Constitution. On due
process, appellant contends the trial court erred by not
determining whether he had the ability to pay the fines and fees
imposed. On the excessive fines argument, appellant contends
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“the aggregate amounts of fines and fees imposed ($12,180),
which does not include direct victim restitution in an amount to
be determined [sic] are excessive under the Eighth Amendment.”
Whether a court must consider a defendant’s ability to pay
before imposing fines and fees is an issue that is currently before
our Supreme Court. (See People v. Kopp (2019) 38 Cal.App.5th
47 (Kopp), rev. granted, Nov. 13, 2019, S257844, and People v.
Hicks (2019) 40 Cal.App.5th 320 (Hicks), rev. granted, Nov. 26,
2019, S258946.) Kopp followed Duenas in holding that a trial
court should consider a defendant’s ability to pay, while Hicks
took a contrary view. Whatever the outcome will be, the fact is
that currently, as well as at the time of appellant’s sentencing,
Duenas was and continues to be a reported decision of the Court
of Appeal.
A. Forfeiture
Appellant argues forfeiture does not apply because any
objection on the imposition of fines and fees would have been
futile. He claims that “[a]t the time appellant was sentenced,
governing law offered scant grounds for objecting to the
imposition to fees and fines upon a defendant sentenced to prison
on grounds of inability to pay them.” We are not convinced.
Appellant was sentenced on January 14, 2020. Duenas was
decided a year before appellant’s sentencing, i.e., on January 8,
2019. There is therefore no question that appellant was on notice
of this decision. However, appellant did not object to any of the
fines and fees that were imposed.
We have held the failure to object to fines and fees forfeits
this issue. (People v. Frandsen (2019) 33 Cal.App.5th 1126,
1153–1154; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032–
1033.) Since Duenas had been on the books for a full year by the
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time appellant was sentenced, Duenas was not a “newly
announced” decision which appellant could not have anticipated.
Thus, a decision that exempted appellant from the requirement
of an objection based on Duenas does not apply. (People v.
Castellano (2019) 33 Cal.App.5th 485, 488.)
The general rule is that an appellate court will ordinarily
not consider procedural defects or erroneous rulings where an
objection could have been, but was not presented to the lower
court by some appropriate method. (People v. Jenkins (2000) 22
Cal.4th 900, 1000.)
We see no reason to deviate from the general rule.
An objection may have resulted in a hearing that would have
resolved issues that are now completely speculative, such as
appellant’s ability to earn wages.4 Instead of speculating about
the relative size of the fines imposed, we would have a record
that would have supplied some of the information necessary to
determine whether the fines were excessive. In short, there are
good reasons for requiring timely objections in the trial court and
those reasons apply in this context, as well.
We conclude appellant has forfeited this issue.
B. Ineffective Assistance of Counsel
We do not agree that defense counsel’s failure to object
means, without more, that counsel was ineffective. “To secure
reversal of a conviction for ineffective assistance of counsel, a
defendant must establish that counsel’s performance fell below
an objective standard of reasonableness and that, to a reasonable
probability, defendant would have obtained a more favorable
result absent counsel’s shortcomings. (Strickland v. Washington
4 There is some evidence that appellant had a variety of
vocational skills.
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(1984) 466 U.S. 668, 687–694 [Strickland].)” (People v. Kraft
(2000) 23 Cal.4th 978, 1068–1069 (Kraft).)
Here, appellant bears the burden to establish ineffective
assistance on both deficient performance and prejudice.
(Strickland, supra, 466 U.S. at p. 690.) The silent record, as here,
does not establish either prong of the Strickland test. “If the
record on appeal fails to show why counsel acted or failed to act
in the instance asserted to be ineffective, unless counsel was
asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation, the claim must
be rejected on appeal.” (Kraft, supra, 23 Cal.4th at pp. 1068–
1069.) Here, we have no way to discern why trial counsel failed
to object. As such, on this appeal, we reject appellants claim of
ineffective assistance.
DISPOSITION
The sentences on counts 21 through and including count 24
are vacated. The case is remanded with directions to enter new
sentences on these counts of 15 years to life imprisonment.
The court is directed to prepare and file a corrected abstract of
judgment and to forward it to the Department of Corrections.
In all other respects, the judgment is affirmed.
OHTA, J. *
We Concur:
GRIMES, Acting P. J. STRATTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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