People v. Perez CA4/2

Filed 6/8/23 P. v. Perez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E079131
v. (Super. Ct. No. . FSB21002330)
ERIK JESUS PEREZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
Robert V. Vallandigham, Jr., 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, Christopher P. Beesley and
Michael J. Patty, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
A jury found defendant and appellant Erik Jesus Perez guilty of one count of
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committing a lewd act upon a child under age 14 (Pen. Code, § 288, subd. (a)). The trial
court sentenced defendant to three years in state prison and awarded 542 days of credit
for time spent in custody. Defendant’s sole contention on appeal is that there is
insufficient evidence to support his conviction. We disagree and therefore affirm the
judgment.
II.
FACTUAL BACKGROUND
Defendant is Jane Doe’s uncle. On October 1, 2020, defendant was staying with
Jane Doe, her mother, grandmother, and two younger siblings in a two-bedroom
apartment in Colton. Jane Doe was 13 years old and defendant was 29 years old at the
time. Normally, Jane Doe slept in a room with her siblings and grandmother, her mother
occupied the other room, and defendant slept in the living room either on the couch or
floor.
On the evening of October 1, 2020 at around 10:00 p.m., Jane Doe and her two
siblings went to sleep in the same bed. Later that night, Jane Doe heard defendant
making loud noises in the kitchen, causing her to be awoken from her sleep. Defendant
entered the room and tapped on Jane Doe’s shoulder, which caused her to be further
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All future statutory references are to the Penal Code.
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awakened. He asked Jane Doe twice to “‘get on the floor.’” After she refused, Jane Doe
walked to the bathroom, and defendant followed her. While in the bathroom, defendant
grabbed Jane Doe’s shoulders and moved his face within two inches of her face. She
believed defendant was trying to kiss her. Jane Doe then moved around defendant and
started to leave the bathroom. Defendant, however, grabbed her arm and unsuccessfully
tried to guide her back towards him. Defendant then got on the floor and unbuckled his
jeans.
Jane Doe walked across the apartment towards her mother’s bedroom, and defendant
followed her from behind. Before she made it to her mother’s bedroom, defendant said
“‘No. I’m sorry. Don’t tell your mom.’”
Defendant then asked Jane Doe to sit down on the couch with him. She sat down
on the couch, as did defendant. He told Jane Doe multiple times that what happened was
“‘not weird.’” One time he said it by whispering in her ear. Jane Doe responded by
stating “‘It is weird’” because he is her uncle. Jane Doe observed that defendant had
drank alcohol that night.
As Jane Doe was responding to defendant, Jane Doe’s mother came out of her
bedroom. At this point, Jane Doe was scared and confused. Her mother observed that
she looked nervous and pale. Jane Doe told her mother what happened, and her mother
asked if she was telling the truth, and she said she was. Jane Doe’s mother reminded
defendant that he was Jane Doe’s uncle and kicked defendant out of the apartment.
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The following day, Jane Doe went to her father’s residence and told him what
defendant had done. Jane Doe’s father then took her to the police station. Jane Doe’s
interview with the investigating officer was played for the jury. The transcript of Jane
Doe’s statements to the officer was also admitted at trial. The transcript of Jane Doe’s
statements about a year after the incident at the Children’s Assessment Center (CAC) was
also admitted into evidence, and Jane Doe’s statements to the CAC interviewer was
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played for the jury at trial.
Defendant did not testify and did not call any witnesses.
III.
DISCUSSION
Defendant’s sole contention on appeal is that there is insufficient evidence to
support his conviction because the evidence is insufficient to establish his lewd intent
when he touched Jane Doe. We disagree.
In considering a challenge to the sufficiency of the evidence to support a judgment
of conviction, we review the whole record in the light most favorable to the judgment to
determine whether it contains substantial evidence, i.e., evidence that is reasonable,
credible, and of solid value, from which a rational jury could find the elements of the
crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People
v. Johnson (1980) 26 Cal.3d 557, 578; People v. Manibusan (2013) 58 Cal.4th 40, 87;
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Some of the statements made by Jane Doe at trial were inconsistent with her
statements to the investigating officer and the CAC interviewer.
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People v. Wilson (2020) 56 Cal.App.5th 128, 153.) We focus “‘on the whole record . . . ,
rather than on “‘isolated bits of evidence.’”’” (People v. Bradford (1997) 15 Cal.4th
1229, 1329, italics omitted.) Reversal is required only if “‘it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].”’” (People v. Cravens (2012) 53 Cal.4th 500, 508.) Nonetheless, “a
reasonable inference from the evidence ‘“‘may not be based on suspicion alone, or on
imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A
finding of fact must be an inference drawn from evidence rather than . . . a mere
speculation as to probabilities without evidence.’”’” (People v. Sanford (2017) 11
Cal.App.5th 84, 91-92.)
Section 288, subdivision (a) provides in relevant part: “[A]ny person who
willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or
any part or member thereof, of a child who is under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or
the child, is guilty of a felony.” Thus, the offense has two elements: “‘“(a) the touching
of an underage child’s body (b) with a sexual intent.”’” (People v. Villagran (2016) 5
Cal.App.5th 880, 890.) “‘Any touching of a child under the age of 14 violates this
section, even if the touching is outwardly innocuous and inoffensive, if it is accompanied
by the intent to arouse or gratify the sexual desires of either the perpetrator or the
victim.’” (People v. Shockley (2013) 58 Cal.4th 400, 404; accord, People v. Martinez
(1995) 11 Cal.4th 434, 445 (Martinez).) The testimony of the victim of a lewd and
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lascivious act may be sufficient by itself to establish the elements of the crime. (Evid.
Code, § 411; People v. Westek (1948) 31 Cal.2d 469, 473; People v. Harlan (1990) 222
Cal.App.3d 439, 454.)
Many kinds of touching have been held sufficient to meet the first element of
section 288, subdivision (a). For example, in People v. Levesque (1995) 35 Cal.App.4th
530, the appellate court held that a defendant’s contact in placing a child over his knees
and pulling down her pants satisfied the touching requirement where there was other
evidence of defendant’s intent. (Id. at p. 543.) Here, defendant’s acts of grabbing Jane
Doe’s shoulder in the bathroom and getting two inches from her mouth, and grabbing her
arm in the bathroom to stop her from leaving sufficed to meet the touching element of the
lewd act charge when examining the entire record.
Defendant contends, however, that the evidence adduced at trial in this case was
insufficient to support the conclusion that these acts were done with the intention of
arousing, appealing to, or gratifying the lusts, passions or sexual desires of Jane Doe.
Whether the touching was done with lewd intent depends on the surrounding
circumstances, all of which can be considered by the jury. (Martinez, supra, 11 Cal.4th
at p. 445.) Circumstances include, but are not limited to, the “defendant’s extrajudicial
statements . . . other acts of lewd conduct admitted or charged in the case . . . the
relationship of the parties . . . or deceit used to obtain the victim’s cooperation or avoid
detection.” (Ibid., internal citations omitted.)
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In this case, the evidence demonstrates that defendant touched Jane Doe with lewd
intent when he grabbed Jane Doe’s shoulders and tried to kiss her in the bathroom, and
when he grabbed her arm and tried to guide her back into that bathroom in context of the
totality of the circumstances. Although defendant did not kiss Jane Doe, touch her
private parts, threaten her, or physically harm her, the touching itself does not need to be
inherently lewd or forceful. (See Martinez, supra, 11 Cal.4th at pp. 442, 451-452 [it is
not necessary that a child be touched in an “inherently lewd manner”].) Indeed, any
touching is sufficient so long as the touching is committed with lewd intent. (Ibid.)
Defendant’s lewd intent can be shown by his act of grabbing Jane Doe’s shoulders and
attempting to kiss her and later trying to get Jane Doe on the floor with him while he was
starting to unbuckle his jeans. (See People v. Morales (2018) 29 Cal.App.5th 471, 478-
479) [appellate court reasoned that all of the circumstances, including the defendant’s
prior and subsequent conduct, established his sexual intent at the time of the touching
at].) Before defendant grabbed Jane Doe’s shoulders and tried to kiss her, he asked her to
get on the floor twice. After he grabbed her arm and tried to guide her back into the
bathroom, defendant laid on the ground and tried to unbuckle his pants. Furthermore,
defendant tried to persuade Jane Doe not to tell her mother and convince her that his
behavior was not weird. A jury could infer defendant’s acts were done with the intention
of arousing, appealing to, or gratifying the lusts, passions or sexual desires of Jane Doe.
Where, as here, the defendant's physical conduct is equivocal, and might be
consistent with a non-lewd intention, the jury can look to surrounding circumstances and
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rely on them to draw inferences about his intent. (People v. Ortiz (2012) 208
Cal.App.4th 1354, 1365.) The surrounding circumstances here support that inference.
We conclude there is sufficient evidence to support the determination defendant was
acting with lewd and lascivious intent when he touched Jane Doe, and thus sufficient
evidence to support his conviction for violation of section 288, subdivision (a).
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
FIELDS
J.
RAPHAEL
J.
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