People v. Mendoza CA2/6

Filed 8/14/23 P. v. Mendoza 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B321231
(Super. Ct. No. 2021031644)
Plaintiff and Respondent, (Ventura County)
v.
CIRILO BAUTISTA
MENDOZA,
Defendant and Appellant.
Cirilo Bautista Mendoza appeals from the judgment
following jury trial after the jury found him guilty of sexual
penetration with a child age 10 or younger (Pen. Code, § 288.7,
subd. (b); count 1)1 and three counts of lewd act on a child under
age 14 (§ 288, subd. (a); counts 2 [vaginal intercourse causing
pregnancy], 3 [vaginal intercourse not causing pregnancy], and 4
[touching vagina]). As to count 2, the jury found true allegations
that Mendoza personally inflicted great bodily injury and bodily
1 All statutory references are to the Penal Code.
harm (§ 667.61, subds. (a) & (d)(6) & (7)). The jury also found for
counts 2 through 4 that Mendoza had substantial sexual conduct
with a victim under age 14 (§ 1203.066, subd. (a)(8)). The trial
court sentenced Mendoza to 40 years to life in prison plus a
determinate term of four years.
Mendoza only appeals his conviction on count 1. He
contends the evidence of penetration and of the victim’s age was
insufficient to establish a violation of section 288.7 and the jury
instructions were erroneous. We affirm.
FACTUAL AND PROCEDURAL HISTORY
K.M. was born in July 2008. Mendoza began molesting her
when she was nine years old, when she woke to find Mendoza
touching her chest on top of her clothes. The older of her two
sisters was “just a tiny baby” and was in the room.
Count 1 was based on one of two incidents. Regarding the
first incident, K.M. testified she was 10 years old and her sister
was about a year old and sleeping next to her. K.M. woke to find
Mendoza was “in my vagina.” She testified, “his hand was in my
vagina.” She then testified as follows:
“Q.: Was he moving his hand around on your vagina?
“A.: I think.
“Q.: Did you ever feel anything go inside your vagina
during this incident?
“A.: I don’t think so.
“Q.: Did he touch you over your clothes or underneath?
“A.: I think it was over my clothes.”
Regarding the second incident, K.M. was asked, “Do you
know another incident when you were ten years old?” She
answered, “I can’t remember.” She was then asked, “When you
were ten years old, did he use another body part to touch your
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vagina?” She answered, “Yes.” She testified, “I think I was ten.”
She testified she woke up “[w]hen I felt his penis inside my
vagina.” Mendoza pulled down her pants and “put his penis
inside my vagina.” K.M. was on her back on the floor and
Mendoza was on top of her. Neither of them spoke. It was
painful. When her sister woke up and cried, Mendoza stopped
and pulled up his underwear and pants. Other family members
had gone to the laundromat during the incident.
K.M. was questioned further about that incident. She
testified she could not remember if it was before she turned 11.
She was then asked, “How do you know that you were ten?” She
answered, “We celebrated my birthday.” She testified it occurred
a “few weeks” after her 10th birthday, which she had celebrated
with her cousins. She was asked if it occurred halfway through
that year, and she responded, “I think.” She was asked if it
occurred in winter, when the days are shorter, and she responded
again, “I think.” She testified it was closer to her 11th birthday
than her 10th birthday.
Regarding counts 2 through 4, K.M. testified that Mendoza
molested her when she was 12 and 13, with acts including
vaginal intercourse.
When interviewed by police, Mendoza said he only had
intercourse with K.M. two times, around April 2020 and August
2021. He testified at trial that he first had sexual contact with
K.M. in April 2021. He denied touching her vagina or having
intercourse with her when she was nine or 10.
The jury found Mendoza guilty of all four counts and found
all the special allegations true. The trial court sentenced
Mendoza to 15 years to life in prison for count 1 (§ 288.7, subd.
(b)), plus 25 years to life for count 2 with great bodily injury
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(§§ 288, subd. (a), 667.61, subds. (a) & (d)(6)). The court stayed
the bodily harm enhancement (§ 667.61, subd. (d)(7)) pursuant to
section 654. The court imposed consecutive determinate
sentences of two years each (one-third the midterm) for counts 3
and 4 (§ 288, subd. (a)).
DISCUSSION
Mendoza only challenges the conviction for count 1 (§ 288.7,
subd. (b)).
Section 288.7, subdivision (b), includes “[a]ny person 18
years of age or older who engages in . . . sexual penetration, as
defined in Section 289, with a child who is 10 years of age or
younger.” Section 289, subdivision (k), provides: “(1) ‘Sexual
penetration’ is the act of causing the penetration, however slight,
of the genital or anal opening of any person . . . for the purpose of
sexual arousal, gratification, or abuse by any foreign object,
substance, instrument, or device, or by any unknown object. [¶]
(2) ‘Foreign object, substance, instrument, or device’ shall include
any part of the body, except a sexual organ. [¶] (3) ‘Unknown
object’ shall include any foreign object, substance, instrument, or
device, or any part of the body, including a penis, when it is not
known whether penetration was by a penis or by a foreign object,
substance, instrument, or device, or by any other part of the
body.” (Italics added.)
K.M. testified to two incidents upon which the conviction of
count 1 could be based—an incident of digital penetration and
one of penetration by the penis. The prosecution argued that a
conviction could be based on either incident so long as the jurors
agreed which act he committed. Mendoza contends the evidence
was insufficient to establish digital penetration for the first
incident, and K.M.’s age for the second incident. We disagree.
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“When a defendant challenges the sufficiency of the
evidence, ‘ “[t]he court must review the whole 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.” [Citation.]’ [Citations.] ‘Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn
from that evidence. [Citation.]’ [Citation.] We ‘ “ ‘presume in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ ” [Citation.]’ [Citation.]”
(People v. Clark (2011) 52 Cal.4th 856, 942-943.)
“In deciding the sufficiency of the evidence, a reviewing
court resolves neither credibility issues nor evidentiary conflicts.
[Citation.] Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact. [Citation.]
Moreover, unless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient
to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149,
1181.)
Evidence of penetration
Mendoza contends the evidence of penetration was
insufficient as to the first incident. We disagree.
K.M. testified Mendoza “was in my vagina” and “his hand
was in my vagina.” (Italics added.) She also testified he moved
his hand around on her vagina. The evidence of penetration is
neither “physically impossible” nor “inherently improbable.”
(People v. Young, supra, 34 Cal.4th at p. 1181.)
“[P]enetration of the labia majora, rather than penetration
of the vagina” is sufficient, and may occur through clothing.
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(People v. Quintana (2001) 89 Cal.App.4th 1362, 1364 [digital
penetration through panties].) Because “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. Lindberg (2008) 45 Cal.4th 1, 27.)
Evidence of victim’s age
Regarding the second incident, Mendoza contends the
evidence was insufficient to establish K.M. was 10 years old
during the act of penile penetration. Again, we disagree.
Child victims often have difficulty establishing the exact
date a molest occurred. (People v. Jones (1990) 51 Cal.3d 294,
299.) “The victim, of course, must describe the kind of act or acts
committed with sufficient specificity, both to assure that unlawful
conduct indeed has occurred and to differentiate between the
various types of proscribed conduct (e.g., lewd conduct,
intercourse, oral copulation or sodomy). Moreover, the victim
must describe the number of acts committed with sufficient
certainty to support each of the counts alleged in the information
or indictment (e.g., ‘twice a month’ or ‘every time we went
camping’). Finally, 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. Additional details
regarding the time, place or circumstance of the various assaults
may assist in assessing the credibility or substantiality of the
victim’s testimony, but are not essential to sustain a conviction.”
(Id. at p. 316.)
Mendoza relies upon cases in which the victim gave
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“generic” testimony regarding incidents on undesignated dates
during relatively short time periods. (People v. Matute (2002) 103
Cal.App.4th 1437, 1449 [one count for each of 15 months]; People
v. Superior Court (Caudle) (1990) 221 Cal.App.3d 1190, 1194 [one
week to three months]; People v. Moore (1989) 211 Cal.App.3d
1400, 1408-1409 [three months].) But other continuous abuse
cases affirm convictions on undesignated dates during a one-year
period. (People v. Garcia (2016) 247 Cal.App.4th 1013, 1022-
1023; People v. Obremski (1989) 207 Cal.App.3d 1346, 1351-1352
& fn. 4.) The issue is not the length of the time interval, but the
credibility of the witness. “[T]he jury either will believe the
child’s testimony that the . . . acts occurred or disbelieve it.”
(Moore, at p. 1414.) “Time is only an essential allegation if the
defense is one of alibi; otherwise, the prosecution need only prove
the act alleged was committed before the filing of the information
and within the statute of limitations.” (Ibid.)
Mendoza relies upon People v. Avina (1989) 211 Cal.App.3d
48, 50-51, which affirmed convictions for two counts of child
molestation and two counts of incest, each alleged to have
occurred within periods ranging from one to four months. The
court did not describe the counts as a “ ‘blur of acts’ ” occurring
“ ‘on a continuing basis,’ ” but instead, as is the case here,
“sufficiently specific and detailed” separate acts. (Id. at pp. 55-
56.) But Avina does not mandate specific types of detail to affirm
a conviction. On the contrary, the court stated, “Even an
assumption (which we do not make) that [the victim’s] testimony
lacked sufficient specificity in tying particular sexual attacks to
specific times, locations or charges would not negate the fact that
each element of each of the charged offenses was supported by
substantial evidence. An appellate court may not reweigh the
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evidence and substitute its judgment for that of the fact finder at
trial.” (Id. at p. 56.) “ ‘[T]he true issue is credibility.’ ” (Id. at p.
55.)
Substantial evidence here supports the jury’s
determination that K.M. was 10 years old when the penile
penetration in the second incident occurred. She testified she
was 10. She testified it occurred several weeks or months after
her 10th birthday celebration, which she used as a reference
point. She provided “[a]dditional details”—that Mendoza took
down her pants, her sister was asleep in the room, her mother
was at the laundromat, and he stopped when the sister started
crying. Even if the molest occurred in winter, that was still well
before her 11th birthday in July. Although K.M. said “I can’t
remember” or “I think” in response to some questions, and gave
conflicting testimony about when in her 10th year the intercourse
occurred, “uncertainties or discrepancies in witnesses’ testimony
raise only evidentiary issues that are for the jury to resolve.”
(People v. Watts (1999) 76 Cal.App.4th 1250, 1259; People v.
Tompkins (2010) 185 Cal.App.4th 1253, 1261.)
We must affirm if, “ ‘ “after viewing the evidence in the
light most favorable to the People, any rational trier of fact could
have found the essential elements of the allegation beyond a
reasonable doubt.” ’ ” (People v. Lindberg, supra, 45 Cal.4th at p.
27.) “A reviewing court neither reweighs evidence nor
reevaluates a witness’s credibility.” (Ibid.) Substantial evidence
here supports the verdict.
Jury instructions
Mendoza contends the jury instructions were erroneous and
allowed the jurors to convict him of violating section 288.7 even if
they concluded she was more than 10 years old. He is incorrect.
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We apply the independent standard of review to claims of
instructional error. (People v. Covarrubias (2016) 1 Cal.5th 838,
919.) “When a defendant claims an instruction was subject to
erroneous interpretation by the jury, he must demonstrate a
reasonable likelihood that the jury misconstrued or misapplied
the instruction in the manner asserted. [Citation.] In
determining the correctness of jury instructions, we consider the
entire charge of the court, in light of the trial record. [Citation.]”
(Id. at p. 926.)
The jury was instructed that “[t]o prove that the defendant
is guilty of [section 288.7, subdivision (b)], the People must prove
that: [¶] . . . [¶] . . . [K.M.] was 10 years of age or younger.”
(CALCRIM No. 1128 (modified).) The jury was further
instructed: “The People are not required to prove that the crime
or crimes took place exactly on a specific day but only that it/they
happened within the timeframe given.” (CALCRIM No. 207
(modified).) The timeframe was provided in the unanimity
instruction: “The defendant is charged in Count 1 with engaging
in sexual penetration with a child 10 years of age or younger
between July 15, 2018 through July 14, 2019.” (CALCRIM No.
3500 (modified).) This time period corresponds to when K.M. was
10 years old.
The jury instructions clearly required the jury find whether
count 1 was committed when K.M. was 10 years old. The
instructions do not suggest that commission of the crime when
K.M. was even one day more than 10 would be sufficient. The
instructions are not erroneous or misleading.
This case is unlike People v. Rojas (2015) 237 Cal.App.4th
1298, 1306-1307, upon which Mendoza relies. There, the
conviction for section 288.7 was reversed on ex post facto grounds
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because the jury was instructed as to a range of permissible
offense dates that included dates before the statute was enacted.
Here, the date range given the jury was after the operative date
of section 288.7, and when K.M. was 10 years old.
Mendoza notes that at the time of trial, the unmodified
language of CALCRIM No. 207 read: “It is alleged that the crime
occurred on [or about] ___________ <insert alleged date>. The
People are not required to prove that the crime took place exactly
on that day but only that it happened reasonably close to that
day.” (CALCRIM No. 207 (rev. Feb. 2016).) This instruction
could have been misleading if it were given in its unmodified
form. But the potential problem was eliminated in the modified
version given the jury.
Mendoza also notes that the operative accusatory pleading,
the amended felony information, alleged that count 1 was
committed “[o]n or about July 15, 2018 through July 14, 2019.”
(Italics added.) But this language was not read or provided to the
jury, and the jury was never told the crime need only be “on or
about” when K.M. was 10. The jury instructions were not
erroneous because they did not permit a guilty verdict for count 1
unless the jury unanimously found the victim was 10 years old.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J. YEGAN, J.
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Anthony J. Sabo, Judge
Superior Court County of Ventura
______________________________
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, Assistant
Attorney General, Wyatt E. Bloomfield and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.