P. v. Contreras

Filed 8/11/06 P. v. Contreras CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed.

A jury convicted Raul Vargas Contreras of two counts of committing a lewd and lascivious act with a 14- or 15-year-old (Pen. Code,^[1] § 288, subd. (c)(1)) and one count of child molesting (§ 647.6, subd. (a)). On one conviction of lewd and lascivious conduct, the court sentenced Contreras to prison for the two-year middle term, stayed execution of sentence and placed him on three years' probation including a condition he serve 270 days in custody. The court stayed sentence on the second lewd and lascivious conduct conviction (§ 654) and imposed a concurrent 270-day term on the child molesting conviction. Contreras contends the evidence does not support conviction of the lewd and lascivious conduct charges because there was no evidence he was 10 years older than the victim.

FACTS

On October 25, 2004, the 15-year-old victim identified as John Doe was waiting at a bus stop to go to school in Oceanside. Contreras pulled up and asked if he wanted a ride. Doe accepted, and after Doe was in the truck, Contreras grabbed his arm. Contreras asked the victim if he ever woke up "in the middle of the night with a pitched tent." The victim responded, "sometimes," and Contreras asked what he did about it, moving his hand as if masturbating. While driving, Contreras pointed to a man at a bus stop and asked Doe if he had had a man. Doe responded, "'No, I'm not like that.'" Contreras commented on Doe's skin tone and pulled Doe's shirt up so he could see his stomach. He rubbed Doe's stomach. Contreras drove to his home and asked Doe to come in. Doe refused, and when Contreras entered the home, Doe ran. Doe reported the incident to a deputy sheriff, who subsequently pulled Contreras over in his car. Doe identified Contreras as the man who had given him a ride.

At trial, when the deputy was asked if Contreras told him his date of birth, the deputy responded he did not recall the exact date, it had been a year since the incident, but he believed it was 1957.

DISCUSSION

Section 288, provides in pertinent part:

"(a) Any person who willfully and lewdly commits any lewd or lascivious act, including 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. [¶] . . . [¶] (c)(1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child."

We affirm a judgment supported by substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence is evidence of legal significance, reasonable in nature, credible and of solid value. (People v. Samuel (1981) 29 Cal.3d 489, 505.) The court must review the entire record most favorably to the judgment below and presume in support of the judgment the existence of every fact the fact finder could reasonably deduce from the evidence. If the evidence permits a reasonable trier of fact to conclude the charged crime was committed, the opinion of a reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal. (See Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)

Relying on People v. Levoy (1920) 49 Cal.App. 770 (Levoy), Contreras argues the convictions of lewd and lascivious conduct must be reversed because the record lacks testimony that he was more than 10 years older then the victim. In Levoy, the defendant was convicted of committing lewd and lascivious conduct with a minor under the age of 14 years. Although the court questioned the victim to determine whether she was competent to testify, the People had presented no evidence of the victim's age. This was reversible error. However, since Levoy, the California Supreme Court decided People v. Montalvo (1971) 4 Cal.3d 328 (Montalvo). In Montalvo, the defendant was convicted of being an adult selling drugs to a minor. On appeal, Montalvo argued there was no evidence he was an adult. The Supreme Court reversed because the trial court had not instructed the jury that the People had the burden to prove the defendant was an adult, but regarding evidence to prove this element the Supreme Court said:

"'Experience teaches us that corporal appearances are approximately an index of the age of their bearer, particularly for the marked extremes of old age and youth. In every case such evidence should be accepted and weighed for what it may be in each case worth. In particular the outward physical appearance of an alleged minor may be considered in judging his age; a contrary rule would for such an inference be pedantically over-cautious. . . .' Similarly, a view of the defendant by the trier of fact in an appropriate case may be sufficient to support a finding that the defendant is an adult. In any event, the information . . . must contain the necessary language as to age and in jury trials, the jury must be properly instructed as to all of the elements of the offense." (Id. at pp. 335-336.)

In People v. Castaneda (1994) 31 Cal.App.4th 197, 202, the reviewing court relied on Montalvo when it affirmed conviction of a defendant of the exact offense the jury convicted Contreras of here. The reviewing court in Castaneda found sufficient evidence that the defendant was at least 10 years older than the victim based on evidence the victim was five years old and the defendant was an adult man. Here, Contreras was 48 years old at the time of the crimes. After the crimes, the minor described the offender as in his mid-30s and balding. The court instructed the jury that to convict Contreras of violating section 288, subdivision (c)(1), the People had to prove the offender was at least 10 years older than the victim. Not only did the jury have the opportunity to see the defendant before concluding he was a least 10 years older than the minor, but the deputy testified when asked if he asked the defendant for his birth date, "Don't remember the exact date of birth. I believe, it was a [sic] 1957. I forgot. It's been a year." The jury verdict reflects a finding that this evidence proved Contreras was at least 10 years older than the victim. Sufficient evidence supports the convictions of lewd and lascivious conduct in violation of section 288, subdivision (c)(1).

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

HALLER, J.

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^[1] All statutory references are to the Penal Code.