P. v. Esquivel








Filed 12/12/11 P. v. Esquivel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, v. GUADALUPE VALDEZ ESQUIVEL, Defendant and Appellant.

E052645 (Super.Ct.No. INF10000920) OPINION

APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. Affirmed.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant Guadalupe Valdez Esquivel was convicted of one count of sexual penetration with a minor 10 years of age or younger (Pen. Code,^[1] § 288.7, subd. (b)) and seven counts of committing a lewd and lascivious act on a minor under the age of 14 (§ 288, subd. (a)) while he was on probation. The trial court sentenced him to state prison for 15 years to life, plus 20 years.
I. FACTS
Defendant, Guadalupe Valdez Esquivel and his wife, V.E., lived in Thermal. Defendant raised V.E.’s son, J.M. In the summer of 2009, J. M., his wife L.M., and their children were living with defendant and V.E. in their house. L.M.’s sister, V.M., worked with V.E. cleaning homes. V.M. had three children, including Jane Doe (Doe), who was born in 2001. While V.M. and V.E. worked, J.M. and L.M. babysat the children. Defendant was usually at the house when V.M.’s children were there. V.M. would bring her children to defendant’s house for sleepovers.
In April 2010 Doe was nine years old. She had suffered from hydrocephalus as a baby and required surgery that rendered her with a learning disability. J.M. is Doe’s uncle. Defendant is J.M.’s stepfather. When Doe was eight, defendant started touching her on her vagina. The first time, he was watching television when she walked by him. He grabbed her and told her to take off her pants. She escaped to another room. The incidents of defendant touching Doe continued. He touched Doe both over and under her clothes, and he hurt the inside of her “private.” Defendant told Doe she would “get killed” if she told anyone.
On April 9, 2010, L.M. heard defendant talking to Doe in the laundry room but could not make out what he was saying. When defendant walked away, Doe seemed nervous and put her head down. Meanwhile, J.M. noticed that defendant had been acting strangely that day, walking in and out of the house multiple times. He had a “strange staring look in his eyes” and was staring at Doe. Defendant also changed his clothing throughout the day.
Worried that something was wrong, L.M. went on a walk with Doe. Doe seemed “nervous and scared.” Initially, she said nothing was wrong, but she would not look her aunt in the face. L.M. explained to Doe that she had always told her daughters that if anyone touched their private parts it was wrong and to tell an adult. Doe responded by saying “okay.” They walked back to the house and L.M. put a movie on for the children.
L.M. sat next to Doe during the movie. Doe seemed “nervous and scared” and was holding her hands together. Just prior to that time, Doe had gone to get some water for L.M.’s youngest daughter but froze after she opened the door. She shut the door and was shaking. Her complexion was pale. L.M. asked her what was wrong and assured Doe that she loved her. Doe leaned in close to L.M.’s ear and whispered, “My grandpa Lupe touches me on my private parts.” L.M. gathered up the children and left the home. J.M. called the police.
When V.M. arrived Doe was crying. V.M. took Doe to the sheriff’s station and then to the Barbara Sinatra Children’s Center. V.M. noticed a change in Doe’s behavior; Doe was more quiet and scared to go to the restroom or take a shower. J.M. and L.M. were aware that defendant had prior contact with law enforcement regarding sexual misconduct but had never spoken of it to the children. J.M. recalled a particular incident when he saw Doe and defendant sitting close together on the sofa and Doe had a cushion on her lap. In retrospect, J.M. thought that Doe looked nervous, “uptight,” and uncomfortable.
Investigator Denise Porras of the Riverside County Sheriff’s Department interviewed Doe on April 9, 2010. Doe seemed nervous and scared during the interview. Initially, Doe said nothing had happened that day. She acknowledged that a police officer came to her grandmother’s home because her brother, J., was touching her private. A second interview was scheduled for April 12 at the children’s center.
Denise Rodriguez Bowman conducted the interview with Doe at the children’s center. Upon being asked what happened, Doe volunteered that defendant touched her “privacy” and she did not like it. The touching started when Doe was seven years old and occurred “a lot of times,” more than five. Most of the touching occurred in the living room while she was sitting on the couch trying to watch television. Defendant touched her under her clothes with his hand. It made her vagina feel “itchy” and “weird” when he touched her inside of it. Defendant would frequently tell her to show him her “privacy.” One time, when they were in the kitchen, defendant put his hand down inside her pants and made her show him her “privacy.” He also touched her “butt,” putting his hand on it and squeezing it. He told her not to tell anyone or she would “get killed.”
Doe did not recall telling Investigator Porras that her brother touched her and stated that her brother did not touch her. She thought she might have been confused because her brother and defendant looked the same to her.
Another interview with Doe was conducted at the children’s center in order to clarify the time line. She explained that defendant touched her with his hand on her “private” when she stayed at her cousin’s house. He would make her pull down her shorts and underwear and touch her. It happened a lot of times, starting when she was seven years old.
Investigator Porras interviewed defendant on April 13, 2010. He stated that Doe had started pulling down her pants in front of him three to four months previously. In response, he had told Doe that she could get him in trouble and that she was not supposed to be doing that. He was too scared to tell anyone about her behavior. She pulled down her pants and underwear in front of him between five and eight times. Doe wanted to see and touch his “personals,” but he refused. On one occasion, Doe offered to show defendant her butt, and did show it. Defendant claimed that Doe was “touching” him because she would take defendant’s hand and put it on her private (vaginal area) to rub her. She would also pull down her pants and spread her legs to show him her vagina and butt.
According to defendant, he has a problem with women and girls wanting him to touch them. He admitted he should have put a stop to the behaviors with Doe and refrained from participating in it. He felt ashamed and sorry. He denied ever penetrating Doe’s vagina but admitted rubbing his hands on the top of her vaginal lips. He stated that someone else was molesting Doe, but he could not say who. He said Doe had touched his penis about five to seven times. Defendant began sobbing during the interview, talking about how scary the situation was and expressing suicidal feelings because he cannot control his thoughts.
The prosecution presented evidence pursuant to Evidence Code section 1108. M.A., who was 12 years old at the time, volunteered with her friend at a charity event in November 2005. She saw defendant, who was also helping at the event, driving a golf cart. M.A. and her friend offered to help him if he would give them a ride. They got in the cart and helped him pick up trash. Eventually the friend left, and M.A. continued to help defendant. At some point, defendant started touching and rubbing M.A. in the vaginal area in circular motion, telling her that she had a “nice pussy.” M.A., who was driving the cart, became scared and drove faster to try to distract defendant. He continued to touch her. Eventually, she ran off, found and told her mother what had happened.
Deborah McMahon testified for the defense. She conducted a sexual assault examination on Doe; however, she did not take physical samples due to the lapse of time between the touching and the examination. The examination of Doe’s genitals was within normal limits.
II. SUFFICIENCY OF EVIDENCE
Defendant challenges the body of evidence introduced by the prosecution, consisting of nonspecific or “generic” testimony of indistinguishable incidents, lacking details regarding the time, place, and circumstances of various alleged assaults. Specifically, he contends the generalized nature of Doe’s testimony was insufficient to support his convictions. He claims the jury was precluded from unanimously agreeing on which specific criminal acts he committed, in violation of his right to a unanimous verdict; that the generic testimony violated his right to present a defense; he should have been prosecuted as a resident child molester (§ 288.5, subd. (a)); and that he was subject to arbitrary and disproportionate sentencing.
Similar claims, as recognized by defendant, were carefully considered and rejected by the California Supreme Court in People v. Jones (1990) 51 Cal.3d 294 (Jones), which affirmed four convictions of lewd and lascivious acts on children under the age of 14 based on evidence not particularized as to time or place. For such cases, the Jones court set forth three requirements to satisfy the above challenges: (1) the victim must describe the kind of act or acts committed with sufficient specificity; (2) the victim must describe the number of acts with sufficient certainty to support the alleged counts; and (3) the victim must be able to describe the general time period in which the acts occurred. (Id. at p. 316.) In this case, each of these requirements was met by Doe’s testimony, coupled with other evidence presented at trial.
Doe described defendant’s conduct in touching her vaginal area under her clothes, usually while they were in the living room watching television. She described one incident where he touched her on her buttocks and another when he touched her vagina in the kitchen. Her descriptions were sufficiently specific. Doe further described the number of acts with sufficient certainty, which defendant also affirmed. Finally, Doe identified the time frame as when she was seven years old, with the last incident occurring on April 9, 2010. Moreover, defendant admitted his contacts with Doe; however, he claimed that she initiated them. He admitted he had touched her between five and eight times, and that she had touched him between five and seven times. Nonetheless, the jury also heard evidence pursuant to Evidence Code section 1108, that defendant had engaged in similar conduct with a 12-year-old in 2005.
Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his molestation convictions. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact’s findings and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Applying this standard of review, we conclude the record discloses sufficient evidence to support defendant’s conviction of all charges.
The fulfillment of the above identified requirements satisfies any concern regarding defendant’s rights to due process and a unanimous verdict: “[E]ven generic testimony describes a repeated series of specific, though indistinguishable, acts of molestation. . . . The unanimity instruction assists in focusing the jury’s attention on each such act related by the victim and charged by the People. We see no constitutional impediment to allowing a jury, so instructed, to find a defendant guilty of more than one indistinguishable act, providing the three minimum prerequisites heretofore discussed are satisfied.” (Jones, supra, 51 Cal.3d at p. 321.) The Jones court “reject[ed] the contention that jury unanimity is necessarily unattainable where testimony regarding repeated identical offenses is presented in child molestation cases. In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described.” (Ibid.) The jury received a modified version of CALICRIM No. 3501,^[2] which instructed the jurors they must agree that the prosecution had proved all the acts alleged to have occurred during the time period and the number of acts charged.
Regarding defendant’s claim he was denied his right to present a defense, as the Jones court pointed out, in residential child molestation cases, an alibi defense is rarely raised: “Usually, the trial centers on a basic credibility issue—the victim testifies to a long series of molestations and the defendant denies that any wrongful touchings occurred. [Citations.]” (Jones, supra, 51 Cal.3d at p. 319.) Nonetheless, if a defendant in such a case presents an alibi defense as to some of the alleged acts, the credibility of the victim as to the entirety of the allegations may be undermined. Furthermore, a defendant may achieve the same objective through cross-examination of the victim, as he did in this case, and supporting witnesses, and through the presentation of his own witnesses, expert and otherwise, with a view to undermining the victim’s credibility. (Id. at pp. 319-320.) It cannot be said on this record that defendant was denied an opportunity to defend himself.
Notwithstanding the above, defendant concludes that “the high court should reevaluate the majority opinion in Jones and adopt the dissent’s position.”
Finally, as the People point out, “there was nothing arbitrary about the sentence or charging in this case. [Defendant] repeatedly molested a developmentally disabled [seven or ] eight[-]year[-]old girl and blamed her for seducing him. In light of California’s commitment to punishing sex offenders there is nothing arbitrary about the sentence in this case.”
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


HOLLENHORST
Acting P. J.
We concur:

KING
J.

MILLER
J.

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