People v. Betancourt CA2/6

Filed 11/25/20 P. v. Betancourt CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B299754
(Super. Ct. No. 2015031958)
Plaintiff and Respondent, (Ventura County)
v.
MARIO ANGUIANO
BETANCOURT,
Defendant and Appellant.
A jury convicted appellant Mario Anguiano Betancourt of
forcible lewd acts on a child under age 14. (Pen. Code § 288,
subd. (b)(1).)1 The jury also found true the special allegation that
the acts were committed using force within the meaning of
section 1203.066, subdivision (a)(1). Appellant was sentenced to
a determinate term of eight years in state prison. He also was
ordered to pay fees, fines and assessments totaling $13,036.87,
All further statutory references are to the Penal Code
1
unless otherwise stated.
with further restitution to the victim’s compensation fund to be
determined later.
Appellant contends the force he used on the victim was not
enough to satisfy section 288, subdivision (b)(1)’s force
requirement. Appellant relies primarily upon two Sixth
Appellate District decisions, People v. Schulz (1992) 2
Cal.App.4th 999 (Schulz) and People v. Senior (1992) 3
Cal.App.4th 765 (Senior), which have been largely rejected by
other Courts of Appeal. We similarly reject those decisions.
Appellant also challenges the $13,036.87 in fees, fines and
assessments. He contends the matter must be remanded to allow
him to present evidence of his inability to pay those costs. (See
People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164, 1167, 1172
(Dueñas).) He did not object to the imposition of these fees, fines
and assessments and has failed to demonstrate ineffective
assistance of counsel. We affirm.
FACUAL BACKGROUND
In 2014, Nayali Diaz and her husband Francisco Gantes
lived in Oxnard with their two daughters, D.D., who was 10 years
old and going into the third grade, and M.D., who was an infant.
Appellant, who had two young daughters, lived in the same
apartment complex and had spoken to Diaz and her husband
several times in the parking lot. D.D. played with other children
in the complex, including appellant’s children, J.B. and P.B.
On September 11, 2014, D.D. went to appellant’s
apartment to play. She brought her backpack to do her
homework. While doing homework, appellant said he had a
surprise for his daughters to show D.D. He told his daughters to
stay downstairs. Appellant brought D.D. upstairs into his room
and closed the window curtains.
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Appellant sat on his bed and said to D.D., “[Y]ou’re so big
already. Who made you so big?” D.D. said she did not know.
Appellant then said, “[D]o you wear a bra already?” D.D. said,
“[Y]es.” Appellant asked to see her breasts and Deanna said “no,
because [she is] a girl.” Appellant said that “it wasn’t anything
bad” and pulled up her shirt and bra. Appellant placed his hand
on D.D.’s shoulder to make her sit down. Appellant then stood up
and pushed D.D. onto her back. Appellant then held down both
of D.D.’s shoulders such that she could not get up. Appellant
then began licking and sucking on D.D.’s breasts.
D.D. knew this was not right and was scared. Appellant’s
legs were on D.D.’s legs and she could not move. D.D. tried to get
up but appellant “didn’t let [her].” Appellant then put more
pressure on her. D.D. finally was able to lift her right leg to kick
appellant in the abdomen. D.D. broke free and ran downstairs.
D.D. went and sat next to J.B. and tried to act normal. D.D. then
asked J.B. about leaving through the back door. They both got
up and went to the side of the house facing the back. D.D.
observed that the back door had tape on it. D.D. then told
appellant she wanted to go home to get her bicycle. Appellant
opened the front door and she left with J.B. and P.B.
An hour after D.D. left to go play at appellant’s house, she
returned home appearing upset. Diaz asked what happened and
D.D. said appellant took her up to his room, touched her, laid her
down on his bed and “sucked on her breasts.” D.D. broke into
tears as she recounted what had happened.
D.D.’s father also was present. Diaz called the police
immediately, and Oxnard Police Officer David Lacara responded.
D.D. initially told Officer Lacara that appellant only had touched
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her around the waist. D.D. then went with the officer to
appellant’s apartment.
D.D. said appellant’s name was Carlos and referred to him
as J.B.’s dad. Upon arriving at appellant’s apartment, D.D.
recounted the molestation to the police officer. She said
appellant was sucking on her breasts like her “mom feeds [her]
sister.” Appellant denied the allegations.
Officer Lacara interviewed J.B. and P.B. at appellant’s
apartment. J.B. told Officer Lacara that she, P.B. and D.D. went
upstairs and when they came down, D.D. wanted to leave, so the
two girls went with her. At D.D.’s house D.D. cried while talking
to her parents. According to J.B., her father was downstairs all
the time. J.B. denied appellant was ever alone with D.D. P.B.,
however, said her father laid D.D. down and did “that” to her at
the house. According to P.B., D.D. then returned home and
began crying.
On September 16, 2014, Police Officer Tenille Chacon
interviewed D.D. at the police station. D.D. reiterated what she
had told Officer Lacara. After she broke free from appellant,
D.D. ran downstairs thinking she could get out of the yard
through a loose board. She found it to be taped. Appellant
followed and said he really wanted to show her something this
time. D.D. insisted on going home to get her bicycle. Appellant
let her go and she told her parents what had occurred.
A sample of appellant’s buccal swab was compared to
samples taken from D.D.’s breasts and chest area. The
probabilistic certainty of a DNA match was found to be in the
quadrillions and billions, respectively.
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DISCUSSION
Use of Force
Appellant contends his forcible lewd acts conviction should
be reversed because of a lack of evidence that he used physical
force to accomplish the acts. We disagree.
A conviction for forcible lewd acts on a child requires proof
that the defendant used “force, violence, duress, menace, or fear
of immediate and unlawful bodily injury” against the victim.
(§ 288, subd. (b)(1).) “Force” in this context means force
“‘substantially different from or substantially greater than that
necessary to accomplish the lewd act itself.’ [Citation.]” (People
v. Soto (2011) 51 Cal.4th 229, 242 (Soto); see CALCRIM No.
1111.)
We review the jury’s verdict for substantial evidence.
(People v. Kipp (2001) 26 Cal.4th 1100, 1128.) Specifically, we
“review[ ] the entire record in the light most favorable to the
prosecution to determine whether it contains evidence that is
reasonable, credible, and of solid value, from which [the jury]
could find . . . beyond a reasonable doubt” that appellant used
force against D.D. (Id. at p. 1128.)
In People v. Cicero (1984) 157 Cal.App.3d 465, disapproved
on other grounds in Soto, supra, 51 Cal.5th at pp. 233, 248, fn.
12, the court determined the defendant’s holding and touching of
the victim’s private parts in a way that made it seem like he was
just playing a game satisfied the force requirement. (Id. at
p. 484.) In contrast, Senior concluded there was insufficient
evidence of force where the defendant pulled the victim back
when she attempted to pull away from the act of oral copulation,
explaining that “a modicum of holding and even restraining
[could not] be regarded as substantially different or excessive
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‘force.’” (Senior, supra, 3 Cal.App.4th at p. 774.) Schulz reached
the same conclusion where the defendant held the screaming
victim’s arm while he touched her breasts and vaginal area.
(Schulz, supra, 2 Cal.App.4th at p. 1003.)
In both Senior and Schulz, the discussions of the force
required to sustain the forcible lewd acts convictions were dicta
because the court determined there was sufficient evidence of
duress to sustain the convictions. (Senior, supra, 3 Cal.App.4th
at pp. 775-776; Schulz, supra, 2 Cal.App.4th at p. 1005.) We join
the courts that have rejected this dicta regarding the amount of
force required. As People v. Babcock (1993) 14 Cal.App.4th 383(Babcock) explained, “[u]nlike the court in Schulz, we do not
believe that holding a victim who was trying to escape in a corner
is necessarily an element of the lewd act of touching her vagina
and breasts. Unlike the court in Senior, we do not believe that
pulling a victim back as she tried to get away is necessarily an
element of oral copulation. And, unlike the defendant in this
case, we do not believe that grabbing the victims’ hands and
overcoming the resistance of an eight-year-old child are
necessarily elements of the lewd acts . . . .” (Id. at p. 388; accord
People v. Jimenez (2019) 35 Cal.App.5th 373, 392-393 [sufficient
force where defendant repeatedly tried to touch the victim
despite being pushed away]; People v. Alvarez (2009) 178
Cal.App.4th 999, 1004-1005 (Alvarez) [“[A]cts of grabbing,
holding[,] and restraining that occur in conjunction with . . . lewd
acts” can represent the force necessary to sustain a forcible lewd
acts conviction]; People v. Bolander (1994) 23 Cal.App.4th 155,
160-161 [same], disapproved on another ground in Soto, supra, 51
Cal.4th at p. 248, fn. 12; People v. Neel (1993) 19 Cal.App.4th
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1784, 1789-1790 [same], disapproved on another ground in Soto,
at p. 248, fn. 12.)
Here, there was sufficient evidence appellant used force
against D.D. to accomplish the lewd acts. Appellant’s act of
placing a 10-year-old child on her back on a bed, holding her
down by the shoulders and restraining her movement with his
legs constituted the use of force intended to overcome her
resistance. Such use of force is not necessary to the commission
of lewd acts under section 288, subdivision (a). (See Babcock,
supra, 14 Cal.App.4th at p. 388; Alvarez, 178 Cal.App.4th at pp.
1004-1005.)
Challenge to Fees, Fines and Assessments
Appellant contends the trial court’s imposition of
$13,036.87 in fees, fines and assessments without considering his
ability to pay violates due process and the excessive fines clause
of the Eighth Amendment. This sum includes a presentence
investigation fee of $2,163 (§ 1203.1b), a $40 court security fee
(§ 1465.8), a $30 criminal conviction assessment (Gov. Code,
§ 70373), a $503.87 criminal justice administration fee (Gov.
Code, §§ 29550, 29550.1, 29550.2), a $300 sex offender
registration fine (§ 290.3), a $5,000 restitution fine (§ 1202.4,
subd. (b)) and another $5,000 restitution fine to the County
Children’s trust fund (§ 294), plus further restitution, in amounts
to be determined, to D.D. and her mother through the Victim
Compensation Board (§ 1202.4).
The Attorney General inexplicably fails to respond to these
arguments. This omission, however, is not a concession and we
are required to decide the merits. (People v. Hill (1992) 3 Cal.4th
959, 995, fn. 3, overruled on other grounds in Price v. Superior
Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
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In January 2019, Dueñas held that “due process of law
requires [a] trial court to . . . ascertain a defendant’s present
ability to pay before it imposes” (1) “court facilities and court
operations assessments” (under § 1465.8 and Gov. Code, § 70373,
respectively), or (2) a restitution fine (under § 1202.4). (Dueñas,
supra, 30 Cal.App.5th at pp. 1164, 1167, 1172.) Appellant did not
object to the imposition of these costs, even though Dueñas was
decided eight months before his sentencing hearing. Typically, a
defendant who fails to object to the imposition of fines, fees and
assessments at sentencing forfeits the right to challenge them on
appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864;
People v. Trujillo (2015) 60 Cal.4th 850, 853-85; People v.
McCullough (2013) 56 Cal.4th 589, 596-597.) We conclude the
issue was forfeited in this case. (People v. Frandsen (2019) 33
Cal.App.5th 1126, 1153 [defendant forfeited challenge to
assessments and restitution fine because counsel failed to
object].)
Alternatively, appellant argues his trial counsel was
constitutionally ineffective for failing to raise the issue at
sentencing. To prove this claim, appellant must establish that
counsel's performance was deficient and that he suffered
prejudice because of counsel's error. (Strickland v. Washington
(1984) 466 U.S. 668, 687 [80 L.Ed.2d 674].) As to the first
element of Strickland, appellant bears the burden of
demonstrating by a preponderance of the evidence that his
counsel’s performance fell below an objective standard of
reasonableness. (In re Thomas (2006) 37 Cal.4th 1249, 1257.) To
satisfy the prejudice element, he must show “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result would have been more favorable to [him], i.e., a
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probability sufficient to undermine confidence in the outcome.”
(In re Ross (1995) 10 Cal.4th 184, 201.)
“It is particularly difficult to prevail on an appellate claim
of ineffective assistance. On direct appeal, a conviction will be
reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose
for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus
proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai),
italics omitted.)
“‘“Ability to pay does not necessarily require existing
employment or cash on hand.” [Citation.] “[I]n determining
whether a defendant has the ability to pay a restitution fine, the
court is not limited to considering a defendant's present ability
but may consider a defendant’s ability to pay in the future.”
[Citation.] This include[s] the defendant’s ability to obtain prison
wages and to earn money after his release from custody.
[Citation.]’ [Citations.]” (People v. Aviles (2019) 39 Cal.App.5th
1055, 1076, italics omitted.)
Here, no objection to the $2,163 presentence investigation
fee was necessary. Section 1203.1b, subdivision (a) requires the
trial court to consider the defendant’s ability to pay and the
payment amount before imposing that fee. The trial court found
“at this stage [appellant] has the ability to pay for the cost of the
presentence investigation fee, which is $2,163,” and ordered him
to pay that amount.
In making this finding, the trial court considered the
probation report and the evidence adduced at trial. Although
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there are statements in the probation report concerning
appellant’s poor financial condition, disability, health issues and
inability to work, the court nonetheless found he has the ability
to pay the presentence investigation fee. It stands to reason,
therefore, the court would have made the same finding had there
been an objection to the other fines, fees and assessments.
It also is plausible trial counsel did not object because
counsel knew of other information regarding appellant’s finances,
which may or may not have been disclosed at trial, or decided it
would be futile given the court’s finding as to the presentence
investigation fee. (See People v. Thompson (2010) 49 Cal.4th 79,
122 [“Counsel is not ineffective for failing to make frivolous or
futile motions”].) In addition, counsel may have tactically focused
on trying to lower the prison term rather than the fees. (See Mai,
supra, 57 Cal.4th at p. 1009.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Benjamin F. Coats, Judge
Superior Court County of Ventura
______________________________
Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and John Yang, Deputy Attorney
General, for Plaintiff and Respondent.
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