P.
v. Gonzalez









Filed
10/19/12 P. v.
Gonzalez CA4/2



NOT TO BE PUBLISHED IN OFFICIAL REPORTS








IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. JEREMIAS ZABALA GONZALEZ, Defendant and Appellant.

E052861 (Super.Ct.No. RIF10001225) OPINION

APPEAL
from the Superior Court of Riverside
County. Joe O. Littlejohn, Judge. (Retired judge of the San Diego Super. Ct.,
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed in part, reversed in
part and remanded for resentencing.

Siri
Shetty, under appointment by the Court of
Appeal, for Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Assistant href="http://www.fearnotlaw.com/">Attorney General, Julie L. Garland,
Assistant Attorney General, and Lilia E. Garcia and Peter Quon, Jr., Deputy
Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant
Jeremias Zabala Gonzalez appeals from his conviction of a forcible lewd act
(Pen. Code,href="#_ftn1" name="_ftnref1"
title="">^[1] § 288, subd. (b)(1), count 1); aggravated
sexual assault (§ 269, subd. (a)(1), § 261, subd. (a)(2), counts 2
through 6); and unlawful sexual intercourse with a child 10 years or younger
(§ 288.7, subd. (a), counts 7 through 11).
Defendant contends: (1) his
convictions of violating section 288.7 must be reversed because the jury was
not required to find that the acts occurred before the effective date of that
statute; (2) the victim’s “generic
testimony” was insufficient to support the verdict on some of his
convictions; (3) the term “10 years of age or younger,” as used in section
288.7, subdivision (b) means the statute does not cover a child after her 10th
birthday; and (4) his sentence for count 1 must be stayed under section
654. We conclude defendant’s sentence
for count 1 must be stayed under section 654 and his convictions of four counts
under section 288.7 must be reversed and the matter remanded for resentencing.

II. FACTS AND PROCEDURAL BACKGROUND

>A.
Prosecution Testimony

1. Jane Doe’s Testimony About
the Molestation

The
victim, defendant’s daughter Jane Doe, was born on November 30, 1996. In 2006 when Doe was nine years old, her
family’s home was damaged in a fire, and they moved into a rental home. In the summertime, while they were living in
the rental home, Doe’s mother, Lucina Zabala, left for at least a month on a
church trip. One night, defendant called
Doe into his bedroom. He told her to
take off her clothes and lie on his bed.
She did so, and defendant took off his own clothes. He got on top of her, spread her legs with
his hands, and “started to hump on” her.
She explained that he touched his private part, “where he pee[d]” to her
private part where she
peed, and “he kept putting it in.” She
testified he put it “[a]ll the way in.”
She was not sure if defendant’s private part had gone beyond the vaginal
lips, but it had gone between the vaginal lips.
She felt pain and started screaming and hitting him, but he told her to
be quiet or he would hit her. When he
finished, she ran back to her room crying.
She did not tell anyone what had happened because she was afraid
defendant would hit her.

In
a second incident, the family was still living in the rental house, and Lucina
was still on her trip. One day when no
one else was home, defendant entered Doe’s room and closed the door. She removed her pants because she was afraid
he would hit her. Defendant removed his
own pants and underwear, told her to lie on the bed, and again “started humping
on” her in the same way as before.
Again, she did not tell anyone because she was afraid.

A
third incident occurred after the family had moved back to their own home when
Doe was still nine years old. When
everyone else was asleep, defendant entered her room, told her to take off her
clothes, and took off his own clothes.
He committed the same acts as before and then went back to his room.

A
fourth incident occurred in the summertime when Doe accompanied defendant to a
house where he worked as a gardener. In
the backyard of the house, defendant told her to pull down her pants and lie on
the ground. He pulled down his own
pants, got on top of her, and “started humping on [her] again” in the same way
as in the previous incidents.

Doe
testified that defendant had engaged in sexual intercourse with her more than
the four times she had described, and each time, his conduct was essentially
the same. The last time occurred before
Doe turned 11 years old but after her youngest sister was born in October 2006. During the molestations, defendant had
touched Doe’s chest and “butt.”

Defendant had
sometimes whipped her with a belt and pinched her. He had also beaten Doe’s younger siblings,
and in 2008 had kicked her brother.

>2.
Doe’s Disclosures

In
2006, when she was nine years old, Doe told a teacher what defendant had
done. When the police talked to her, she
did not repeat the allegations because she was afraid they might arrest her or
that defendant would go to jail.

Doe told Lucina
that defendant was sexually molesting her.
Lucina first rejected the accusation and then told Doe to scream if it
happened again and Lucina would stop defendant.
However, when defendant later molested Doe in Doe’s bedroom, Lucina
never came in to stop him. Lucina told Doe
not to tell anyone.

Doe
also told her paternal grandmother, Modesta Gonzalez, that defendant had
molested her, and the grandmother then kept Doe and her younger siblings at the
grandmother’s house for three days in June 2007. The grandmother convened a family meeting at
which Doe told the family members what defendant had done. Defendant responded that Doe was lying and
that she had been “watching some sort of show like that.” The grandmother and the other family members
did not report Doe’s accusation to the authorities.

Modesta called
child protective services in March 2008 because Doe told her defendant was
touching Doe’s breasts, and Modesta had seen defendant forcefully kiss Doe on
the lips after church.

>3.
Doe’s Interview with Social Worker

Sarah Walker, a
social worker and forensic interviewer with the Riverside County Child
Assessment Team (RCAT) interviewed Doe in March 2008, and a videotape of the
interview was played for the jury, and the jury was given a transcript.

Doe
told Walker that the family’s house
had burned and they moved to a rental house.
While they lived in the rental house, and before Doe’s youngest sister
was born, Doe’s mother had gone to the mountains for church, and while the mother
was gone, Doe’s “dad abused [her] sexually.”
When the mother returned, they moved back to their old house, and “[her]
dad started doing it again.” When asked
to described the sexual abuse, Doe responded, “He got on me and he um, pulled
my pants down and underwear and then he started . . . [¶] . . . [¶]
. . . abusing me.” Her father
took her hand and led her to his room and closed the door; she thought he
wanted her to massage his back. He told
her to get on the bed, and he took off her pants and underwear. He took off his own pants.

Doe
said when she was 10 years old, she had told her mother and grandmother about
what had happened, and in front of her parents and other family members, she
again told them what had happened, but defendant accused her of lying.

She said he was
“humping” on her “middle part,” where she peed, while she screamed and told him
to stop. Defendant was using his “middle
part,” where he peed. She could feel his
“middle part” “getting on” her “middle part,” and it “hurt a lot.” She described “humping” as “[l]ike going up
and down.” When asked whether defendant
had been inside or outside her “middle part,” Doe replied, “It was like in the
inside. He tried to open it, but it
never did, but it really hurt . . .” When defendant finished, he said he was sorry
and would never do it again.

Doe described a
second incident when they had returned to their own house. When Lucina was asleep, defendant came into
Doe’s room and “took off [her] pants and underwear again and he started doing
the stuff again.” Doe told the interviewer
she was then 10 years old. Doe stated
“it happened a lot of times,” and “[i]t was the same.” She later stated, “I think it was ten or
five.”

>4.
Other Witnesses’ Testimony

Luisana
Hernandez, Lucina’s friend, testified that in October 2006, Lucina told her she
(Lucina) had found defendant in bed with Doe.
Lucina was crying and angry. The
conversation occurred while Lucina was pregnant, and Hernandez believed the
incident had happened close in time to the conversation.

Lucina denied ever
seeing defendant with his pants down in Doe’s room.

A pediatrician
performed a medical examination of Doe in April 2008. Doe’s genitalia and anus were normal;
however, the pediatrician testified that genital tissue generally heals within
three days of an injury. Doe told the
pediatrician that she had had painful urination after the first incident. The pediatrician could neither confirm nor
negate sexual abuse. Although Doe’s
hymen was intact, intercourse does not necessarily perforate the hymen because
a person “can penetrate the labia majora/minora without touching the hymen,
[and] the patient will feel that the male genitalia is inside of her without
being touched on the hymen.”

B. Defense Evidence

Defendant
produced character evidence from his niece, sister, and brother.

>C.
Jury Verdicts and Sentence

The
jury found defendant guilty of a forcible lewd act (§ 288, subd. (b)(1),
count 1); aggravated sexual assault (§ 269, subd. (a)(1), § 261,
subd. (a)(2), counts 2 through 6); and unlawful sexual intercourse with a child
10 years or younger (§ 288.7, subd. (a), counts 7 through 11). The trial court imposed a consecutive
indeterminate term of 25 years to life for each of counts 7 through 11, and a
consecutive aggravated term of eight years for count 1. The trial court imposed an indeterminate term
of 15 years to life for each of counts 2 through 5, but stayed those terms
under section 654.

III. DISCUSSION

>A.
Sufficiency of Evidence that Crimes Were Committed After the Effective
Date of Section 288.7

Defendant contends
his convictions of violating section 288.7 in counts 7 through 11 must be
reversed because the jury was not required to find that the acts occurred
before the effective date of that statute.

>1.
Additional Background

The
information alleged that defendant committed count 1 (§ 288, subd. (b)(1))
“on or about October 2006”; counts 2 through 6 (§ 269, subd. (a)(1),
§ 261, subd. (a)(2)) “on or about year of 2006, through and including year
of 2007”; and counts 7 through 11 (§ 288.7, subd. (a)) “on or about
October 2006, through and including 2007.”
The trial court’s instruction to the jury as to counts 7 through 11 did
not require the jury to make any finding as to the dates the offenses occurred.

>2.
Standard of Review

We
review error in application of ex post facto principles under the
harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24; People v. Farley (1996) 45 Cal.App.4th 1697, 1710.)

>3.
Analysis

Section
288.7, subdivision (a) provides: “Any
person 18 years of age or older who engages in sexual intercourse or sodomy
with a child who is 10 years of age or younger is guilty of a felony and shall
be punished by imprisonment in the state prison for a term of 25 years to
life.” That statute became effective September 20, 2006. (Stats. 2006, ch. 337, § 9 (S.B. 1128,
§ 9, eff. Sept. 20, 2006.)

The
state and federal Constitutions prohibit ex post facto laws. (U.S.
Const., art. I, § 10; Cal.
Const., art. I, § 9.) A law
violates those ex post facto clauses if (1) it applies to events occurring
before its enactment and (2) it disadvantages the offender by altering the
definition of criminal conduct or increasing the punishment for a crime. (People
v. Delgado (2006) 140 Cal.App.4th 1157, 1163-1164. The People concede that defendant cannot be
convicted under section 288.7 for crimes that occurred before September 20, 2006.

Defendant
argues that the People failed to establish beyond a reasonable doubt that any
of the crimes took place after that date.
In People v. Hiscox (2006) 136
Cal.App.4th 253, the defendant appealed from his sentencing under section
667.61 (the “One Strike Law”) which took effect on November 30, 1994. (Hiscox,
supra, at p. 257.) The evidence established only that the crimes
had occurred between 1992 and 1996; however, the jury was not instructed that
its findings under section 667.61 were restricted to offenses committed after
the effective date of the statute. The
appellate court reversed, concluding the jury could have returned guilty
verdicts without considering when any particular offense had occurred. (Hiscox,
supra, at pp. 260-261.) The court explained, “Since the jury was not
asked to make findings on the time frame within which the offenses were
committed, the verdicts cannot be deemed sufficient to establish the date of
the offenses unless the evidence leaves
no reasonable doubt that the underlying charges pertained to events occurring
on or after [the effective date of the One Strike law]. [Citation.]”
(Id. at p. 261; italics
added.)

In
People v. Riskin (2006) 143
Cal.App.4th 234 (Riskin), the
defendant was convicted of a forcible lewd act on his daughter that was alleged
to have occurred between June 15,
1994, and June 14,
1998. The victim testified
to several acts that occurred within that time frame. The defendant appealed from his sentence of
15 years to life under the One Strike Law, and the court reversed, noting that
the victim had given inconsistent testimony about her age when the defendant
committed the various acts; it was not clear which act the jury found
constituted the charged offense; and the victim’s testimony did not establish
that all the acts occurred after the effective date of the One-Strike Law. (Riskin,
supra, at p. 245.)

Doe
testified that two incidents had occurred at the rental house where her family
had lived for a month when she was nine years old. Thus, those incidents could have occurred
before September 20, 2006. The People concede error under ex post facto
principles with respect to two counts.
The People argue, however, that the evidence was sufficient to establish
beyond a reasonable doubt that the other three counts were committed after the
effective date of the statute.

Doe testified that
a third incident had occurred when she was nine years old after the family had
moved back to their own home. In her
RCAT interview, she stated she thought she was 10 when defendant committed the
act in her bedroom in the family home.
The People argue that other evidence “reasonably establishe[d]” that the
third incident occurred in October 2006, specifically, Hernandez’s conversation
with Lucina in which Lucina was crying and angry about finding defendant in bed
with Doe. However, Hernandez initially testified that
the conversation had taken place around December 2007, and later testified that
it had taken place “around October of 2006.”
Here, as in Riskin, the
evidence was inconsistent about when the incident occurred. Under the standard that governs our review,
we cannot say the evidence leaves no reasonable doubt that the third incident
Doe described occurred on or after September 20,
2006. (See >Riskin, supra, 143 Cal.App.4th at p. 245.)

The People next
assert that the back yard incident occurred when Doe was 10 years old. Contrary to that assertion, however, Doe did >not testify that she was 10 years old
when defendant committed the act in the back yard. She could only remember that the act took
place in the summertime, and she did not remember if her sister had yet been
born when the outside incident occurred.
Again, we cannot say the evidence leaves no reasonable doubt that act
occurred after the effective date of section 288.7.

Doe did testify,
however, that defendant had molested her after her sister was born in October
2006 and after her 10th birthday in November 2006. Thus, we conclude the evidence established
beyond a reasonable doubt that at least one act of molestation occurred after
the effective date of section 288.7.

We will therefore
reverse defendant’s conviction as to four counts under section 288.7. Although defendant was charged under separate
statutes (see § 954), the unlawful intercourse (§ 288.7) charges
(counts 7 through 11) were based on the same facts as the aggravated sexual
assault (§ 269, subd. (a)) charges (counts 2 through 6), and the trial
court stayed defendant’s sentences for counts 2 through 6 under section
654. We will therefore remand the case
for resentencing so the trial court may lift the stay and impose sentence as to
four counts of aggravated sexual assault.

B.
Sufficiency of Evidence of Multiple Offenses

Defendant contends
Doe’s “generic testimony” was insufficient to support his conviction of count 1
and was sufficient to support only four counts of aggravated sexual assault.

>1.
Standard of Review

When a criminal defendant
challenges the sufficiency of the evidence to support his conviction, we review
the entire record in the light most favorable to the judgment to determine
whether it contains substantial evidence from which a rational trier of fact
could have found the defendant guilty beyond a reasonable doubt. (Jackson
v. Virginia (1979) 443 U.S. 307, 319.)

>2.
Analysis

In
People v. Jones (1990) 51 Cal.3d 294,
our Supreme Court held that child molestation convictions may be based on “generic”
or nonspecific testimony. When a
defendant lives with the victim or has continuous access to her, “the victim
typically testifies to repeated acts of molestation occurring over a
substantial period of time but, lacking any meaningful point of reference, is
unable to furnish many specific details, dates or distinguishing
characteristics as to individual acts or assaults.” (Id.
at p. 299.) Moreover, “testimony
describing a series of essentially indistinguishable acts of molestation is
frequently the only testimony forthcoming from the victim. To hold that such testimony, however credible
and substantial, is inadequate to support molestation charges would anomalously
favor the offender who subjects his victim to repeated or continuous
assaults.” (Id. at p. 300.) Thus, the
court held, “even generic testimony (e.g., an act of intercourse ‘once a month
for three years’) outlines a series of specific,
albeit undifferentiated, incidents, each
of which amounts to a separate offense, and each
of which could support a separate criminal sanction.” (Id.
at p. 314.) Such evidence is sufficient
if it describes the kind of act or acts committed with sufficient specificity,
the number of acts with sufficient certainty to support all the counts alleged,
and the general time period during which the acts took place. (Id.
at pp. 315-316.)

Under
the standards set forth in People v. >Jones, supra, 51 Cal.3d 294, the evidence was sufficient to support all of
defendant’s convictions. As we discuss
below, the People concede on appeal, and we agree, that the act that formed the
basis for count 1 was also one of the same acts, and defendant’s sentence for
count 1 must be stayed under section 654.

>3.
Sufficiency of Evidence of Five Counts of Aggravated Sexual Assault

As
recounted, Doe described four specific acts of sexual intercourse. The first occurred in defendant’s bedroom in
the rental house during the nighttime when she was nine years old and while her
mother was on a church trip. The second
also occurred in the rental house in Doe’s bedroom during the daytime when she
was nine years old, and no one else was home.
The third occurred in her bedroom in the nighttime after the family
returned to their own home; Doe was then nine or 10 years old, and her mother
was sleeping in another room. The fourth
occurred in the summertime in the back yard of a house where defendant was
working. As to each of these
occurrences, Doe described how defendant ordered her to remove her clothes,
removed his own clothes, spread her legs, and lay on her while putting his
penis in her vagina. Doe further
testified that defendant had engaged in similar acts more than just those four
times, and the additional acts had taken place in the family home. She told the social worker the acts had
occurred “a lot of times” and “I think it was ten or five” times. Thus, there was sufficient evidence as to the
type of acts (similar acts of intercourse) and of the number of acts committed
(at least five) to support all five counts of aggravated sexual assault
alleged. (Jones, supra, 51 Cal.3d
at p. 316.)

>4.
Sufficiency of Evidence of Forcible Lewd Act

The information alleged a
violation of section 288, subdivision (b) in count 1 that took place in October
2006. Defendant contends that “Doe did
not describe any lewd conduct occurring in 2006 and 2007 other than ‘humping,”
and none of the incidents she described “supported a finding of a lewd act
occurring in October 2006 . . . .”

The
trial court instructed the jury that to provide count 1, the People were
required to prove that “one, the defendant willfully touched any part of a
child’s body either on . . . the bare skin or through the clothing;
and two, in committing the act, the defendant used force, violence, duress,
menace or fear of immediate and unlawful bodily injury to the child or someone
else; and three, the defendant committed the act with the intent of arousing,
appealing to, or gratifying the lust, passions or sexual desires of himself or
the child; and four, the child was under the age of 14 years at the time of the
act.” Any one of the acts about which
Doe testified was a lewd act within the meaning of the statute.

Moreover,
contrary to defendant’s contention, the People were not required to prove the
exact date the offense was committed.
(E.g., People v. Spirlin (2000)
81 Cal.App.4th 119, 130 [Fourth Dist., Div. Two].) Rather, “‘[t]he proof need not conform to the
exact date laid in the information, it being sufficient to prove the commission
of the offense at any time prior to the filing of the information within the
statutory period—the commission of the act here charged is not the kind that
does not constitute a crime unless committed on a specific date; time is not of
the essence or a material ingredient of the offense . . . .’ [Citation.]”
(Ibid.) The evidence was amply sufficient to
establish that defendant committed a forcible lewd act on Doe before the
information was filed and within the statute of limitations.

>C.
Section 288.7 Offenses

Defendant contends
the term “10 years of age or younger” as used in section 288.7, subdivision
(a), means the statute does not cover a child after her 10th birthday, and
therefore his convictions of counts 7 through 11 must be reversed.

In >People v. Cornett (2012) 53 Cal.4th
1261, our Supreme Court recently held that the term “ten years of age or
younger” as used in section 288.7, subdivision (b) covers children until they
reach their 11th birthday. (>Cornett, supra, at p. 1275.) It was
undisputed that all of defendant’s crimes occurred before Doe’s 11th
birthday. We therefore reject
defendant’s argument.

>D.
Section 654

Defendant
contends his sentence for committing forcible lewd acts in count 1 must be
stayed under section 654, because that charge was based on the same facts as his
convictions of aggravated sexual assault on a child in counts 2 through 6 and
of sexual intercourse with a child in counts 7 through 11. The People concede error, and we agree. We will therefore direct the trial court on
remand to stay defendant’s sentence for count 1 under section 654.

IV. DISPOSITION

Defendant’s
conviction is reversed as to four counts of violating section 288.7, and the
matter is remanded for resentencing to allow the trial court to lift the
section 654 stay as to four of the aggravated sexual assault convictions. In addition, defendant’s sentence for count 1
must be stayed under section 654. In all
other respects, the judgment is affirmed.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS





HOLLENHORST

J.

We concur:





RAMIREZ

P.J.



KING

J.