People v. Gonzalez CA2/7

Filed 9/16/20 P. v. Gonzalez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B291005
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA450970)
v.
LUIS GUSTAVO GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David V. Herriford, Judge. Affirmed in
part; reversed in part.
Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Scott A. Taryle and
Daniel C. Chang, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
Luis Gustavo Gonzalez appeals from a judgment entered
after the jury convicted him of continuous sexual abuse and
sodomy of his girlfriend’s sister, Alicia P., and lewd act upon a
child, Alicia’s cousin Jennifer C. At the time of the sexual abuse,
both Alicia and Jennifer were under the age of 14. The jury also
found true Gonzalez committed offenses against multiple victims.
On appeal, Gonzalez contends the prosecutor committed
misconduct in her closing argument by asserting the jury could
consider statements made by prospective jurors about how their
family members or friends had delayed reporting sexual abuse as
evidence that sexual abuse victims may delay reporting sexual
abuse out of fear. In addition, Gonzalez challenges the
constitutionality of Penal Code1 section 288.5 for continuous
sexual abuse and argues his conviction should be reversed
because there is not sufficient evidence the abuse continued over
a period of three months. Gonzalez also contends, the People
concede, and we agree Gonzalez’s conviction of sodomy must be
vacated because he also was convicted of continuous sexual abuse
against the same victim during the same time period. But we
reject Gonzalez’s argument the trial court’s failure sua sponte to
instruct the jury that he could not be convicted on both counts
requires reversal of both counts. Finally, Gonzalez argues his
case should be remanded for the trial court to conduct an ability-
to-pay hearing on the court assessments, restitution fines, sex
offender fine, and victim restitution ordered by the court, relying
on this court’s opinion in People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas).
1 All further undesignated statutory references are to the
Penal Code.
2
We strike Gonzalez’s conviction of sodomy and affirm the
judgment as modified. We also conclude Gonzalez forfeited his
challenge to imposition of the court assessments, restitution
fines, and sex offender fine, and the trial court properly did not
consider Gonzalez’s ability to pay victim restitution.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
The information charged Gonzalez with continuous sexual
abuse of a child under the age of 14 between January 1, 2010 and
January 1, 2011 (§ 288.5, subd. (a); count 1); sodomy of a person
under the age of 14, who was more than 10 years younger than
the defendant, between January 1, 2010 and January 1, 2011
(§ 286, subd. (c)(1); count 2); sexual penetration by a foreign
object by force (§ 289, subd. (a)(1)(A); count 3)2; and lewd act upon
a child under the age of 14 (§ 288, subd. (a); count 4). Counts 1,
2, and 3 were charged as to Alicia; count 4 was charged as to
Jennifer. The information specially alleged as to all counts
Gonzalez committed the offenses against more than one victim
(§ 667.61, subds. (b) & (e)(4)).
Gonzalez pleaded not guilty and denied the special
allegations.
2 Upon the prosecutor’s motion, the court dismissed count 3
after the close of the prosecution’s case.
3
B. The Prosecution Case
1. Alicia’s testimony (counts 1 and 2)
In 2010 then-11-year-old Alicia (born October 1998) stayed
with her older sister, Teodora Munoz, on most weekends and
some weekdays. Munoz lived with then-25-year-old Gonzalez,
who was her boyfriend. Gonzalez took Alicia and her siblings
places and bought them food and gifts.
One weekend in the Spring of 2010 Alicia stayed overnight
at Munoz and Gonzalez’s house on Eagle Street. Alicia fell asleep
on a sofa in the bedroom while Munoz and Gonzalez slept in the
bed in the same room. Alicia was asleep on her side when she
awoke to find Gonzalez pulling down her jeans. Gonzalez then
lowered Alicia’s panties and inserted his penis into her anus for
approximately a minute. It was painful, but Alicia stayed still
and pretended to be asleep because she “didn’t think it was good
to scream.” Alicia was scared because “she knew it was not
right.” Gonzalez then pulled Alicia’s jeans back up and returned
to the bed where Munoz was asleep. Alicia cried and went back
to sleep.
The next day Alicia was in pain and had difficulty walking.
When Alicia went to the bathroom and wiped herself, she noticed
she was bleeding. Munoz asked Alicia why she was limping, and
Alicia replied she “slept wrong.”
The second incident occurred “probably weeks,” but less
than a month later in another home where Munoz and Gonzalez
were living. Alicia was asleep in bed with Gonzalez and Munoz
when Gonzalez touched Alicia’s vagina under her panties and
inserted his fingers inside Alicia’s vagina. He stopped when
Munoz moved in her sleep, then he started again.
4
Gonzalez digitally penetrated Alicia’s vagina “every night
when [she] would sleep over” at Gonzalez and Munoz’s home in
2010. She added the abuse occurred “every Saturday or Sunday,”
on more than 20 separate occasions. Gonzalez and Munoz moved
frequently, and the incidents occurred “mostly in every place they
moved in.” The sexual abuse stopped when Alicia was placed in
foster care during her “last year of elementary school going into
middle school.” When asked whether she would have been 12 or
13 years old at the time, Alicia replied, “Maybe.”
Alicia did not report Gonzalez’s abuse because she was
afraid no one would believe her and she wanted to “erase what
happened.” Alicia added, “I didn’t want to say nothing until my
cousin [Jennifer] told me what had happened to her and I did not
like it.” Alicia then told her aunt Angela (Jennifer’s mother)
about Gonzalez’s abuse. In 2014 or 2015 Alicia went to the police
station and reported Gonzalez’s sexual abuse of her.
2. Jennifer’s testimony (count 4)
During 2013 then-12-year-old Jennifer often slept at the
home of Munoz and Gonzalez on weekends because she felt close
to them. Gonzalez was like a father to Jennifer. When Jennifer
stayed with Gonzalez and Munoz, Gonzalez took Jennifer to see
movies, and they would eat pizza and popcorn. At the time
Munoz and Gonzalez lived in a converted garage, which was
furnished with a bed, television, and refrigerator.
On the afternoon of May 20, 2013 Jennifer, Munoz, and
Gonzalez were sitting on the bed watching television when
Munoz left the garage to use the bathroom that was outside the
garage. Jennifer started to follow Munoz because she did not
want be alone with Gonzalez. But when Jennifer asked Gonzalez
5
if she could go with Munoz, he said no and asked her, “[H]ow
much do you want[?]” Jennifer did not understand what he
meant, so she did not respond. She went back to the bed and lay
down on her back. Gonzalez reached under her clothes and
touched her vagina. Jennifer was scared and pretended to fall,
rolling off the bed. She started crying while lying on her stomach
with half of her body under the bed. When Munoz came back, she
asked Jennifer why she was crying, but Jennifer continued to cry
and did not answer. When Munoz asked Gonzalez, he replied, “I
don’t know. She just started crying.” After Jennifer and
Gonzalez fell asleep, Munoz woke Jennifer up to ask her what
happened. Jennifer did not want to tell Munoz what happened
because she “thought [Munoz] wasn’t going to believe [her].”
When Jennifer told Munoz that Gonzalez had touched her
vagina, Munoz responded, “How can he do that if he’s like your
dad[?]”
When Jennifer returned home, she did not tell her mother
because she was afraid Gonzalez would kill her mother in light of
his previous comment to Jennifer that he had guns. A couple of
months later, Jennifer told her uncle when she stayed with him
in Colorado. Jennifer’s uncle informed her mother, who contacted
the police.
C. The Defense Case
Munoz testified she started dating Gonzalez when she was
15 and he was 24 years old. Munoz had never seen Gonzalez
with a gun. When Munoz and Gonzalez lived on Eagle Street,
Alicia stayed overnight one time. Munoz denied hearing any odd
sounds or crying during the night. According to Munoz, Alicia
6
did not have a limp the next morning, and Alicia did not tell
Munoz she was in pain because she slept wrong.
In 2012 Munoz lived with Gonzalez in a converted garage
with no kitchen or bathroom. Jennifer and her family visited
Munoz there during the day, but Jennifer never stayed overnight.
In 2013, when Munoz and Gonzalez moved to another apartment,
Jennifer visited twice but did not stay overnight. Jennifer once
spent a night with Munoz and Gonzalez when they rented a room
in a house on Fetterly Avenue. Munoz slept in the middle of the
bed with Jennifer to her left and Gonzalez to her right. When
Jennifer cried in her sleep, Munoz woke her up and asked what
was wrong. Jennifer told Munoz her stepfather had touched her
private parts.
D. The Verdicts and Sentences
The jury found Gonzalez guilty of the continuous sexual
abuse of Alicia, who was under the age of 14 (§ 288.5, subd. (a);
count 1); sodomy of Alicia, who was under the age of 14 and 10
years younger than Gonzalez (§ 286, subd. (c)(1); count 2); and
lewd act upon Jennifer, who was under the age of 14 (§ 288, subd.
(a); count 4). As to each count, the jury found true Gonzalez
committed offenses against more than one victim.
The trial court sentenced Gonzalez on count 1 for
continuous sexual abuse and on count 4 for lewd act on a child to
indeterminate terms of 15 years to life on each count based on the
multiple victim circumstance under the one strike law (§ 667.61,
subds. (b) & (e)(4)). The court ordered the sentence on count 4 to
run concurrent with the sentence on count 1. On count 2 for
sodomy of a person under the age of 14, the court imposed the
7
middle term of six years, but stayed it pursuant to section 654.3
The court imposed a $30 court facilities assessment (Gov. Code,
§ 70373) and a $40 court operations assessment (Pen. Code,
§ 1465.8, subd. (a)(1)) on each count; a $300 sex offender fine (id.,
§ 290.3)4; and a $300 restitution fine (id., § 1202.4, subd. (b)); and
it imposed and suspended a $300 parole revocation restitution
fine (id., § 1202.45). The court also ordered restitution to the
Victim Compensation Board, by stipulation of the parties, in the
amount of $2,700 plus 10 percent interest (id., § 1202.4, subd.
(f)(2)). The court found Gonzalez did not have the ability to pay
attorneys’ fees. Gonzalez did not object to imposition of the
assessments and fines or raise his inability to pay.
Gonzalez timely appealed.
DISCUSSION
A. Gonzalez Forfeited His Claim of Prosecutorial Misconduct,
and He Failed To Show Prejudice
Gonzalez contends the prosecutor, Emily Spear, committed
misconduct by asserting in her closing argument the jurors
should consider the statements by prospective jurors about how
their family members and friends had delayed reporting sexual
abuse out of fear. We agree this argument was highly improper,
but the error was harmless.
3 The trial court dismissed the multiple-victim allegation as
to count 2.
4 The trial court only imposed the sex offender fine on count
1, although the statute provides for imposition of the fine on each
conviction. (§ 290.3, subd. (a).)
8
1. Closing arguments
During her closing argument, defense counsel argued,
“[Munoz] also told you that when Jennifer was found crying at
night, [Munoz] asked Jennifer why she was crying. And she told
[Munoz] that her stepfather had been touching her in similar
ways. And yet time went on and nothing was said; nothing was
reported for years after that. [¶] Now, we all listen to the news,
and we know that sometimes people don’t report these things.
But the key factor here is that neither of these girls reported to
anybody their touching until they talked to each other. And all of
a sudden now, they want to come forward and support each
other’s stories. [¶] . . . [¶] If you just don’t believe these girls
and if you think about it and their stories don’t make sense, then
you must vote not guilty.”
In her rebuttal argument, the prosecutor referenced
comments made by prospective jurors during voir dire. The
prosecutor argued, “[A]dmittedly, it’s weird that [Alicia and
Jennifer] didn’t report right away. But I want you to think back
to jury selection. Think about every person that we heard from—
and there were quite a few—who said their wife or their mother
or their friend didn’t report. [¶] They didn’t report because they
were terrified. They didn’t do anything during the act itself.
They didn’t tell anybody about it for years and years and years.
They didn’t tell anyone until they told their spouse. I mean, I
can’t count how many people we heard that type of information
from. [¶] So even in our real lives and our common sense, we
know that these types of crimes are under-reported. [¶] These
little girls get scared, worried that no one’s going to believe them,
which we heard from the stands, and we also heard in the jury
box. They get worried that someone’s going to get hurt if they
9
report, which we heard from the stands and we heard from our
fellow jurors. [¶] They avoid during the act as they’re frightened
that they don’t want to speak up about it. We’ve heard that from
the jury box, and we’ve heard that from our fellow jurors. [¶]
Ladies and gentlemen, that is the strongest evidence you have as
to why they didn’t report right away. Our fellow jurors gave us
that information. And you can use that in evaluating this case.”
2. Gonzalez forfeited his claim of prosecutorial
misconduct
“‘“As a general rule a defendant may not complain on
appeal of prosecutorial misconduct unless in a timely fashion—
and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to
disregard the impropriety.”’” (People v. Beck and Cruz (2019)
8 Cal.5th 548, 657; accord, People v. Hoyt (2020) 8 Cal.5th 892,
942.) “‘The lack of a timely objection and request for admonition
will be excused only if either would have been futile or if an
admonition would not have cured the harm.’” (Hoyt, at pp. 942-
943; accord, People v. Powell (2018) 6 Cal.5th 136, 171.)
Gonzalez’s failure to object to the prosecutor’s argument that the
jury should consider statements by prospective jurors forfeited
his claim of prosecutorial misconduct. (See Hoyt, at p. 942
[defendant “failed to object to nearly all such instances [of
prosecutorial misconduct during his closing argument] and has
therefore forfeited these claims on appeal”].)
Had Gonzalez’s attorney objected, the trial court could have
instructed the jury that prospective jurors’ comments during voir
dire are not evidence. Further, the court could have reminded
the jury, as it had instructed, that the attorneys’ closing
10
arguments were not evidence, and they should only consider the
witness testimony and exhibits as evidence.
3. Gonzalez has not shown prejudicial error
Even had Gonzalez not forfeited his claim of prosecutorial
misconduct, he has not met his burden to show prejudicial error.5
“‘“A prosecutor commits misconduct when his or her conduct
either infects the trial with such unfairness as to render the
subsequent conviction a denial of due process, or involves
deceptive or reprehensible methods employed to persuade the
trier of fact.”’” (People v. Beck and Cruz, supra, 8 Cal. 5th at
p. 657; accord, People v. Hoyt, supra, 8 Cal.5th at p. 943.) “‘“A
defendant’s conviction will not be reversed for prosecutorial
misconduct, however, unless it is reasonably probable that a
result more favorable to the defendant would have been reached
without the misconduct.”’” (People v. Young (2019) 7 Cal.5th 905,
932-933; accord, People v. Tully (2012) 54 Cal.4th 952, 1010.)
Spear committed prosecutorial misconduct by arguing to
the jury it could consider the prospective jurors’ statements made
during voir dire as evidence that victims of sexual abuse
5 Gonzalez argues ineffective assistance of counsel to avoid
forfeiture, but this claim likewise fails because he does not show
his attorney’s failure to object was prejudicial. (People v. Rices
(2017) 4 Cal.5th 49, 80 [“‘“To establish ineffective assistance of
counsel, a defendant must show that (1) counsel’s representation
fell below an objective standard of reasonableness under
prevailing professional norms, and (2) counsel’s deficient
performance was prejudicial, i.e., there is a reasonable
probability that, but for counsel’s failings, the result would have
been more favorable to the defendant.”’”]; People v. Mickel (2016)
2 Cal.5th 181, 198 [same].)
11
commonly delay reporting the abuse out of fear. “It is well settled
that it is misconduct for a prosecutor to base argument on facts
not in evidence.” (People v. Mendoza (2016) 62 Cal.4th 856, 906;
accord, People v. Rodriquez (2020) 9 Cal.5th 474, 480
[“‘“Statements of supposed facts not in evidence . . . are a highly
prejudicial form of misconduct, and a frequent basis for
reversal.”’”].) Further, “counsel should not quote individual
jurors in their argument to the entire jury.” (People v. Freeman
(1994) 8 Cal.4th 450, 517; accord, People v. Lima, supra,
49 Cal.App.5th at p. 533.)
But Gonzalez has failed to show it is reasonably probable
the jury would have reached a result more favorable to him
absent the prosecutorial misconduct. Before closing arguments,
the trial court instructed the jury, “Evidence is the sworn
testimony of witnesses, the exhibits admitted into evidence, and
anything else I told you to consider as evidence. [¶] Nothing that
the attorneys say is evidence. In their opening statements and
closing arguments, the attorneys discuss the case, but their
remarks are not evidence; their questions are not evidence; only
the witnesses’ answers are evidence.” We presume the jury
understood and followed the trial court’s instructions. (People v.
Flores (2020) 9 Cal.5th 371, 405; People v. Frederickson (2020)
8 Cal.5th 963, 1026.)
Further, defense counsel admitted delayed reporting of
sexual abuse was common knowledge, stating in her closing
argument, “Now, we all listen to the news, and we know that
sometimes people don’t report these things.” Moreover, both
Alicia and Jennifer articulated why they delayed reporting the
sexual abuse. Alicia was afraid no one would believe her, and she
wanted to “erase what happened.” Although she delayed
12
reporting the sexual abuse for four or five years, she was spurred
to report the abuse when she learned from Jennifer what
Gonzalez had done to her. Jennifer feared Gonzalez would kill
her mother if she told her mother about the sexual abuse. But
she reported the abuse just a couple of months later. In addition,
Alicia’s description of how Gonzalez touched her vagina under
her clothing during a sleepover while Munoz was home was
consistent with how Jennifer described Gonzalez’s conduct. On
this record, it is not reasonably probable that a result more
favorable to Gonzalez would have been reached absent the
prosecutorial misconduct. (See People v. Lima, supra,
49 Cal.App.5th at p. 535 [prosecutor “improperly argued fact not
in evidence . . . and improperly quoted individual jurors” by
referencing prospective jurors’ experiences with gangs, but the
misconduct was harmless].)
B. Section 288.5 Is Not Unconstitutional
Gonzalez contends his conviction under section 288.5
violates his federal and state constitutional rights to due process
and a jury trial because the statute allows for a conviction
without the jury’s unanimous agreement as to which acts
constitute the offense. Gonzalez concedes numerous Courts of
Appeal have rejected constitutional challenges to section 288.5,
but he argues they were wrongly decided. They were not.
Section 288.5, subdivision (a), provides, “Any person who
either resides in the same home with the minor child or has
recurring access to the child, who over a period of time, not less
than three months in duration, engages in three or more acts of
substantial sexual conduct with a child under the age of 14 years
at the time of the commission of the offense, . . . or three or more
13
acts of lewd or lascivious conduct, . . . with a child under the age
of 14 years at the time of the commission of the offense is guilty
of the offense of continuous sexual abuse of a child . . . .”
“Although the jury must unanimously agree that the defendant
molested the child at least three times, it need not agree on
precisely when or where the requisite three incidents occurred.”
(People v. Grant (1999) 20 Cal.4th 150, 154; see § 288.5, subd. (b)
[“To convict under this section the trier of fact, if a jury, need
unanimously agree only that the requisite number of acts
occurred not on which acts constitute the requisite number.”].)
“As a general rule, when violation of a criminal statute is
charged and the evidence establishes several acts, any one of
which could constitute the crime charged, either the state must
select the particular act upon which it relied for the allegation of
the information, or the jury must be instructed that it must agree
unanimously upon which act to base a verdict of guilty.” (People
v. Jennings (2010) 50 Cal.4th 616, 679; accord, People v. Russo
(2001) 25 Cal.4th 1124, 1132 [“In a criminal case, a jury verdict
must be unanimous.”].) But “no unanimity instruction is
required if the case falls within the continuous-course-of-conduct
exception, which arises ‘when the acts are so closely connected in
time as to form part of one transaction’ [citation], or ‘when . . . the
statute contemplates a continuous course of conduct or a series of
acts over a period of time.’” (Jennings, at p. 679; accord, People v.
Selivanov (2016) 5 Cal.App.5th 726, 752.) “‘The crime of
continuous sexual abuse of a child (§ 288.5) is a continuous-
course-of-conduct crime and therefore falls within the exception
to the rule that jurors must agree on the particular criminal acts
committed by the defendant before convicting him.’” (People v.
14
Cissna (2010) 182 Cal.App.4th 1105, 1124; accord, People v.
Adames (1997) 54 Cal.App.4th 198, 207.)
Because section 288.5 is a continuous-course-of conduct
crime, numerous Courts of Appeal have upheld its
constitutionality. (See People v. Cissna, supra, 182 Cal.App.4th
at pp. 1124-1126 [rejecting constitutional challenge, finding “no
violation of the constitutional right to unanimous agreement on
the criminal conduct because the actus reus of the offense is the
course of conduct, not a specific act”]; People v. Adames, supra,
54 Cal.App.4th at p. 207 [“We hold that the absence of a
requirement that the jury unanimously agree on the particular
incidents underlying a violation of section 288.5 does not violate
the federal Constitution, specifically, the Sixth Amendment
guarantee of the right to a jury trial or the Fourteenth
Amendment guarantee of due process.”]; People v. Whitham
(1995) 38 Cal.App.4th 1282, 1295-1297 [requirement of
unanimous agreement to course of conduct satisfies federal and
state constitutions]; People v. Gear (1993) 19 Cal.App.4th 86,
92-93 [“The statute requires jury unanimity with respect to the
course of conduct—i.e., the actus reus—and thereby satisfies the
constitutional requirement.”]; People v. Avina (1993)
14 Cal.App.4th 1303, 1313 [“In a prosecution for a course-of-
conduct offense, where the evidence shows only a single course of
conduct, the jury need not be instructed on a need for unanimity
as to the conduct supporting the conviction.”]; People v. Higgins
(1992) 9 Cal.App.4th 294, 307 [“The fact that the jurors select
different acts to satisfy the numerical threshold for a course of
conduct does not render [section 288.5] unconstitutional. Rather,
it assures the jury must agree there is a course of conduct and
15
prevents conviction based on a single act or a series of acts upon
which the jury does not agree.”].)
Gonzalez argues section 288.5 is not a course-of-conduct
offense, distinguishing it from the offenses of child abuse
(§ 273a), spousal battery (§273.5), animal cruelty (§ 597),
accessory after the fact (§ 32), and dissuading a witness (§ 136.1).
He argues those course-of-conduct crimes may be comprised of
individual acts that are not themselves criminal, and none of
those offenses requires a specific number of defined qualifying
acts be committed over a specific time period, unlike section
288.5. But section 288.5, subdivision (b), “states expressly that it
is to be treated as a continuous-course-of-conduct crime for
purposes of the unanimity rule; that is, that unanimity is not
required on any particular acts of molestation.” (People v. Avina,
supra, 14 Cal.App.4th at p.1310; accord, People v. Cissna, supra,
182 Cal.App.4th at p. 1124 [“‘continuous sexual abuse of a child
(§ 288.5) is a continuous-course-of-conduct crime’”]; People v.
Whitham, supra, 38 Cal.App.4th at p. 1296 [“The text of section
288.5 leaves no doubt the Legislature intended to create a course-
of-conduct offense [citations]; it is undeniably ‘“the continuing
course of abuse which leads to prosecution and conviction”’”];
People v. Higgins, supra, 9 Cal.App.4th at p. 304 [“The
Legislature has the prerogative to proscribe a course of conduct,
rather than specific acts, a prerogative exercised by adoption of
Penal Code section 288.5.”].) We find the reasoning of our
colleagues persuasive and likewise conclude section 288.5 is
constitutional.
16
C. Substantial Evidence Supports Gonzalez’s Conviction of
Continuous Sexual Abuse of Alicia (Count 1)
1. Standard of review
“In evaluating a claim regarding the sufficiency of the
evidence, we review the record ‘in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence—that is, evidence which 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.
Westerfield (2019) 6 Cal.5th 632, 713; accord, People v. Penunuri
(2018) 5 Cal.5th 126, 142 [“‘To assess the evidence’s sufficiency,
we review the whole record to determine whether any rational
trier of fact could have found the essential elements of the crime
or special circumstances beyond a reasonable doubt.’”].)
“‘“Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence.”’” (Penunuri, at p. 142; accord, People v. Mendez (2019)
7 Cal.5th 680, 703.)
“‘The standard of review is the same in cases in which the
prosecution relies mainly on circumstantial evidence.’
[Citations.] ‘We presume in support of the judgment the
existence of every fact the trier of fact reasonably could infer from
the evidence. [Citation.] If the circumstances reasonably justify
the trier of fact’s findings, reversal of the judgment is not
warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.’” (People v.
17
Westerfield, supra, 6 Cal.5th at p. 713; accord, People v. Penunuri,
supra, 5 Cal.5th at p. 142 [“‘A reversal for insufficient evidence
“is unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support’” the
jury’s verdict.’”].)
2. Substantial evidence supports the jury’s finding
Gonzalez sexually abused Alicia over at least a three-
month period
Gonzalez contends there is insufficient evidence to support
his conviction of continuous sexual abuse of Alicia because the
evidence does not show three months elapsed between the first
and last acts of sexual abuse. Gonzalez argues the more than 20
sexual abuse incidents could have occurred within two-and-a-half
months because the abuse started sometime in the spring of 2010
and ended by that June, when Alicia completed the fifth grade.
Substantial evidence supports Gonzalez’s conviction.
To satisfy the three-month element of section 288.5,
subdivision (a), “the prosecution need not prove the exact dates of
the predicate sexual offenses.” (People v. Mejia (2007)
155 Cal.App.4th 86, 97 (Mejia); accord, People v. Valenti (2016)
243 Cal.App.4th 1140, 1158.) “Rather, it must adduce sufficient
evidence to support a reasonable inference that at least three
months elapsed between the first and last sexual acts. Generic
testimony is certainly capable of satisfying that requirement
[but] ‘the victim must be able to describe the general time period
in which these acts occurred (e.g., “the summer before my fourth
grade,” or “during each Sunday morning after he came to live
with us”), to assure the acts were committed within the
applicable limitation period.’ [Citations.] That is, while generic
18
testimony may suffice, it cannot be so vague that the trier of fact
can only speculate as to whether the statutory elements have
been satisfied.” (Mejia, at p. 97; accord, Valenti, at p. 1158.)
The facts of Mejia, supra, 155 Cal.App.4th at page 97,
relied on by Gonzalez, are distinguishable. There, the
“[d]efendant was charged and convicted of continuous sexual
abuse of the victim ‘on or between June 1, 2004 and
September 17, 2004.’” (Id. at p. 93.) The evidence showed the
defendant first abused the victim sometime in June 2004, and the
abuse ended sometime in September 2004. (Id. at pp. 94-95.)
“[T]he victim testified generally that defendant molested her ‘two
or three days a week,’ but she clarified that defendant did not
molest her every week within that time period.” (Id. at p. 95.)
The Court of Appeal reversed the conviction, explaining, “[T]he
only reasonable inference permitted by the evidence was that
defendant’s abuse began sometime in June and continued to some
date in September—but the jury could only speculate that the
first incident occurred early enough in June to satisfy the 90-day
requirement expiring on September 17, 2004.” (Ibid.)
In contrast to Mejia, the jury could have reasonably
inferred from the evidence that the abuse started in the spring of
2010 and continued for at least three months into the fall of that
year. Alicia testified the first sexual abuse incident occurred in
the spring of 2010 when she was 11 years old. According to
Alicia, Gonzalez sexually abused her on more than 20 separate
occasions in 2010 during almost every weekend she spent at the
homes of Gonzalez and Munoz. The jury could have reasonably
inferred the abuse lasted more than three months (over 20
weekends), because Alicia was abused once each weekend—
“every Saturday or Sunday” when she stayed at Gonzalez and
19
Munoz’s home. The sexual abuse stopped when Alicia was placed
in foster care during her “last year of elementary school going
into middle school.” The jury could have reasonably inferred this
meant the abuse ended when Alicia started the fifth grade (her
last year of elementary school) the following fall. This is
consistent with Alicia’s testimony it was “maybe” true the abuse
ended when she was 12 or 13 years old (after October 2010).
D. Gonzalez’s Conviction of Sodomy (Count 2) Must Be
Vacated Because Counts 1 and 2 Involve the Same Victim
During the Same Time Period
Gonzalez contends, the People concede, and we agree
Gonzalez’s conviction for sodomy of Alicia must be vacated
because he was also convicted of continuous sexual abuse of
Alicia during the same time period, which the information
charged was from January 1, 2010 to January 1, 2011.6 Section
288.5, subdivision (c), provides in part, “No other act of
substantial sexual conduct, as defined in subdivision (b) of
Section 1203.066, with a child under 14 years of age at the time
of the commission of the offenses, or lewd and lascivious acts, as
defined in Section 288, involving the same victim may be charged
in the same proceeding with a charge under this section unless
the other charged offense occurred outside the time period
charged under this section or the other offense is charged in the
alternative.”
“[I]f an accusatory pleading is improper (i.e., a count
alleging violation of section 288.5 is joined, and not—as
6 Because we vacate the conviction of sodomy in count 2, we
do not reach Gonzalez’s argument the failure to file a demurrer to
the information constituted ineffective assistance of counsel.
20
subdivision (c) requires—charged alternatively, with one or more
counts alleging specific sexual offenses), then the multiple
convictions predicated thereon cannot stand, and either the
continuous abuse conviction or the convictions on the specific
offenses must be vacated.” (People v. Johnson (2002) 28 Cal.4th
240, 245, 248, italics omitted; accord, People v. Wilson (2019)
33 Cal.App.5th 559, 573.) “[I]n deciding which convictions to
vacate as the remedy for a violation of the proscription against
multiple convictions set forth in section 288.5, subdivision (c), . . .
we leave appellant standing convicted of the alternative offenses
that are most commensurate with his culpability.” (People v.
Torres (2002) 102 Cal.App.4th 1053, 1059; accord, Wilson, at
p. 573; People v. Rojas (2015) 237 Cal.App.4th 1298, 1309; People
v. Bautista (2005) 129 Cal.App.4th 1431, 1437-1438.) “This will
ordinarily translate to upholding whichever conviction resulted in
the greater aggregate penalty and vacating the less serious
count.” (Rojas, at p. 1309.)
Gonzalez was sentenced to 15 years to life for continuous
sexual abuse and six years for sodomy, which was stayed under
section 654. We uphold the conviction for continuous sexual
abuse because it is more commensurate with Gonzalez’s
culpability, imposing the greater aggregate penalty. (See People
v. Wilson, supra, 33 Cal.App.5th at p. 573 [affirming convictions
of 12 specific offenses and vacating single continuous sexual
abuse count because the specific offenses “were most
commensurate with defendant’s culpability”]; People v. Bautista,
supra, 129 Cal.App.4th at p. 1438 [affirming conviction of
continuous sexual abuse and vacating four convictions of
procurement where the former was more commensurate with
defendant’s culpability]; People v. Torres, supra, 102 Cal.App.4th
21at p. 1060 [reversing conviction of violating section 288.5 where
defendant faced a greater maximum aggregate penalty for the
specific offenses than the continuous sexual abuse offense].)
Gonzalez has cited no support for his additional contention
the trial court’s failure to instruct the jury that it could not
convict him of both sexual abuse counts requires reversal of both
convictions. To the contrary, the appropriate remedy is to vacate
only one of the two counts. (People v. Wilson, supra,
33 Cal.App.5th at p. 574 [“To vacate these convictions, based
simply on the trial court’s procedural mistake in failing to
instruct that section 288.5 was an alternative to [the specific
offenses], would give defendant an unjustified windfall.”]; People
v. Rojas, supra, 237 Cal.App.4th at pp. 1308-1309 [vacating
continuous sexual abuse conviction in addition to reversal of
specific offense conviction “would result in an unwarranted and
inequitable windfall in [defendant’s] favor, which would not leave
him standing convicted of an alternative offense commensurate
with his culpability”].)
E. Gonzalez Forfeited His Challenge to Imposition of the Fines
and Assessments, and Dueñas Does Not Apply to Direct
Victim Restitution
1. Gonzalez forfeited his challenge to the fines and
assessments
Gonzalez contends the trial court violated his constitutional
rights to due process and to be free from excessive fines by
imposing the court assessments, restitution fines, and sex
offender fine in the absence of evidence of his ability to pay.
Gonzalez has forfeited his challenge to these fines and
assessments.
22
In Dueñas, this court concluded “the assessment provisions
of Government Code section 70373 and Penal Code section
1465.8, if imposed without a determination that the defendant is
able to pay, are . . . fundamentally unfair; imposing these
assessments upon indigent defendants without a determination
that they have the present ability to pay violates due process
under both the United States Constitution and the California
Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord,
People v. Belloso (2019) 42 Cal.App.5th 647, 654-655, review
granted Mar. 11, 2020, S259755 (Belloso).)
In contrast to court assessments, a restitution fine under
section 1202.4, subdivision (b), “is intended to be, and is
recognized as, additional punishment for a crime.” (Dueñas, at
p. 1169; accord, Belloso, at p. 655.) Section 1202.4, subdivision
(c), expressly provides a defendant’s inability to pay a restitution
fine may not be considered as a “compelling and extraordinary
reason” not to impose the statutory minimum fine. However, as
this court held in Dueñas, to avoid the serious constitutional
questions raised by imposition of a restitution fine on an indigent
defendant, “although the trial court is required by Penal Code
section 1202.4 to impose a restitution fine, the court must stay
the execution of the fine until and unless the People demonstrate
that the defendant has the ability to pay the fine.” (Dueñas, at
p. 1172; accord, Belloso, at p. 655.)
However, section 290.3, subdivision (a), specifically
provides for consideration of a defendant’s ability to pay, stating
that persons convicted of specified sex offenses, including
violation of section 288.5, “shall . . . be punished by a fine of three
hundred dollars ($300) upon the first conviction . . . , unless the
court determines that the defendant does not have the ability to
23
pay the fine.” Because Gonzalez had a right to raise his ability to
pay the sex offender fine, he forfeited his challenge to the fine by
not raising his inability to pay at the time of sentencing. (People
v. Acosta (2018) 28 Cal.App.5th 701, 705 [“by failing to object to
[the sex offender] fines at sentencing, [the defendant] has waived
any claim on appeal that the trial court improperly imposed
them”]; see People v. McCullough (2013) 56 Cal.4th 589, 593
[defendant forfeited challenge to imposition of booking fee
because he failed to raise his ability to pay the fee in the trial
court].)
Further, because Gonzalez had the statutory right to raise
his inability to pay the $300 sex offender fine, but elected not to
object to the fine at the time of sentencing, we conclude he would
not have challenged the other fines and assessments in a similar
amount even if he was aware of his right to raise his inability to
pay—the $90 in court facilities assessments, $120 in court
operations assessments, $300 restitution fine, and $300 parole
revocation restitution fine, which was stayed. Thus, Gonzalez
forfeited his challenge. (See People v. Smith (2020)
46 Cal.App.5th 375, 395 [defendant forfeited challenge to
assessments and fines because he did not object to imposition of
$10,000 restitution fine]; People v. Gutierrez (2019)
35 Cal.App.5th 1027, 1033 [“As a practical matter, if [defendant]
chose not to object to a $10,000 restitution fine based on an
inability to pay, he surely would not complain on similar grounds
regarding an additional $1,300 in fees.”]; but see People v. Taylor
(2019) 43 Cal.App.5th 390, 400-401 [failure of a defendant to
object to imposition of a restitution fine above the statutory
minimum does not result in forfeiture of a challenge to the court
assessments because a defendant’s ability to pay the restitution
24
fine is only one of the factors the court should consider in setting
the restitution fine above the statutory minimum].)7
2. Gonzalez is not entitled to an ability-to-pay hearing as
to the victim restitution order
“Section 1202.4, subdivision (f) provides for a direct
restitution order ‘in every case in which a victim has suffered
economic loss as a result of the defendant’s conduct.’ The order is
to be for an amount ‘sufficient to fully reimburse the victim or
victims for every determined economic loss incurred as the result
of the defendant’s criminal conduct.’” (People v. Brasure (2008)
42 Cal.4th 1037, 1074-1075; accord, Walker v. Appellate Division
of Superior Court (2017) 14 Cal.App.5th 651, 656 [“‘Restitution is
constitutionally and statutorily mandated in California.’”].)
Here, the court ordered restitution be paid to the Victim
Compensation Board pursuant to section 1202.4, subdivision
(f)(2), which applies where a victim has received assistance from
the Board. Section 1202.4, subdivision (g), specifically provides
that “[a] defendant’s inability to pay shall not be a consideration
in determining the amount of a restitution order.” Therefore,
“Dueñas does not apply to victim restitution under section 1202.4,
subdivision (f).” (People v. Abrahamian (2020) 45 Cal.App.5th
314, 338; accord, People v. Evans (2019) 39 Cal.App.5th 771, 777.)
Moreover, by stipulating to the $2,700 victim restitution
fine, Gonzalez forfeited any right to challenge the amount of
7 In contrast to imposition of restitution fines above the
statutory minimum, section 290.3, subdivision (a), does not
provide any factors for the court to consider in deciding whether
to impose the sex offender fine other than the defendant’s ability
to pay.
25
restitution. (People v. Brasure, supra, 42 Cal.4th at p. 1075
[defendant forfeited challenge to victim restitution order where
he “neither raised an objection to the amount of the order nor
requested a hearing to determine it”]; People v. Mays (2017)
15 Cal.App.5th 1232, 1237 [“A defendant wishing to argue on
appeal that there is no factual basis for a restitution order must
object on that ground in the trial court to preserve the issue for
appeal.”].)
DISPOSITION
Gonzalez’s conviction of sodomy (count 2) is vacated, and
the judgment is affirmed as modified. The superior court is
directed to prepare a corrected abstract of judgment striking the
conviction of sodomy and six-year sentence imposed and stayed
on count 2 and to forward a copy of the corrected abstract to the
Department of Corrections and Rehabilitation.8
FEUER, J.
We concur:
PERLUSS, P. J. SEGAL, J.
8 Because we vacate Gonzalez’s conviction of sodomy, the
trial court must reduce the total court facilities assessments to
$60 and court operations assessments to $80 to reflect his
convictions on only two counts.
26