Guajardo
Filed 7/8/13 P. v. Guajardo CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOHN JOSEPH GUAJARDO,
Defendant and
Appellant.
F063335
(Super.
Ct. No. VCF238624)
APPEAL from
a judgment of the Superior Court
of
County. Gerald F.
Sevier, Judge.
Robert L.
S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L.
Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
John Joseph
Guajardo was convicted of molesting his two granddaughters many times over a
period of several years and received a determinate sentence of 19 years 8
months plus an indeterminate sentence of 90 years to life. He challenges his conviction on
count 11, exhibiting harmful matter to a minor with intent to seduce (Pen.
Code, § 288.2, subd. (a)
name="_ftnref1" title="">[1]). He argues that the evidence was insufficient
to support a finding of an intent to seduce and that the court should have
instructed the jury on a lesser-included offense. We reject these arguments.
Guajardo
and the People agree that an erroneously imposed restitution fine should be
stricken and that the abstract of judgment must be amended to correct a
clerical error. We order the necessary
corrections and affirm the judgment.
FACTUAL AND
PROCEDURAL HISTORIES
Guajardo
has two granddaughters, A.G. and K.G.
The district attorney filed an information charging Guajardo with 14
counts of sex offenses against them.
Counts 1 through 10 alleged that Guajardo committed lewd acts
against A.G., a child under 14. (§ 288,
subd. (a).) Count 11 alleged
that Guajardo showed A.G. a video depicting sexual conduct with intent to
arouse the sexual desires of himself and A.G. and with intent to seduce
A.G. (§ 288.2,
subd. (a).) Count 12 alleged
that Guajardo communicated with A.G. with intent to commit a sex offense. (§ 288.3, subd. (a).) Counts 13 and 14 alleged that Guajardo
committed lewd acts against K.G., a child under 14. (§ 288, subd. (a).) Counts 1 through 10, 13, and 14 included
the special allegation that Guajardo committed the offenses against more than
one victim. (§ 667.61,
subds. (b), (e)(4).)
A.G. was 15
years old at the time of trial. The
evidence at trial showed that Guajardo began touching her sexually when she was
five or six years old. When she was 10,
Guajardo began giving her gifts and demanding sex in return. In her testimony, A.G. described acts
including vaginal intercourse, her masturbation of him, his placing his mouth
on her breasts and vagina, his touching of her breasts and vagina, and
open-mouthed kissing.
A.G.
testified that Guajardo showed her pornographic videos at his house more than
one time. She remembered two films. Scenes she recalled involved women having sex
with each other, a man and woman having sex in a chair, and “threesomes.†A.G. did not remember how old she was when
Guajardo first showed her the videos.
Police found two videotapes, titled “Sticky Situation†and “Butts Motel
6,†in Guajardo’s bedroom.
The sexual
activity between Guajardo and A.G., and the exchanging of sex for gifts, took
place many times and continued until A.G. was 14. It stopped when A.G.’s mother (Guajardo’s
daughter) contacted the authorities after finding sexually explicit text
messages from Guajardo to A.G. on Guajardo’s cell phone.
The
evidence at trial also showed that Guajardo engaged in sexual touching of K.G.,
who was seven at the time of trial. K.G.
told a forensic interviewer that Guajardo touched her “bootie†and “chi-chisâ€
with his hand when she was five. At
trial she testified that he touched her private area.
The jury
found Guajardo guilty on all counts. It
found the multiple-victim allegations true on counts 1 through 4, 13 and
14. It found those allegations not true
on counts 5 through 10.
name="_ftnref2" title="">[2]
The court
sentenced Guajardo to six consecutive indeterminate terms of 15 years to life—a
total of 90 years to life—for counts 1, 2, 3, 4, 13, and 14. These were the section 288,
subdivision (a), counts with the multiple-victim special circumstances,
for which a term of 15 years to life was applicable under section 667.61,
subdivision (b). The court also
imposed a determine term of 19 years 8 months, calculated as follows: eight years (the upper term) for
count 5; two years (one-third of the middle term) for each of
counts 6 through 10; eight months (one-third of the middle term) for
count 11; and one year (one-third of the middle term) for
count 12.
DISCUSSION
I. Sufficiency of
evidence for count 11
Guajardo
argues that the evidence was not sufficient to support the conviction on
count 11, exhibiting harmful material to a minor with intent to
seduce. (§ 288.2,
subd. (a).) Specifically, he
maintains that the evidence did not show that he had an intent to seduce A.G.
when he showed her the pornographic videos at his house.
The
standard of review for a challenge to the sufficiency of the evidence
supporting a conviction is well-established:
“‘When considering a challenge
to the sufficiency of the evidence to support a conviction, we review the
entire record in the light most favorable to the judgment to determine whether
it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
[Citation.] … We
presume in support of the judgment the existence of every fact the trier of fact
reasonably could infer from the evidence.
[Citation.] If 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.
[Citation.] A reviewing court
neither reweighs evidence nor reevaluates a witness’s credibility. [Citation.]’
[Citation.]†(
293.)
Section 288.2,
subdivision (a)(1), provides:
“Every
person who, with knowledge that a person is a minor, or who fails to exercise
reasonable care in ascertaining the true age of a minor, knowingly distributes,
sends, causes to be sent, exhibits, or offers to distribute or exhibit by any
means, including, but not limited to, live or recorded telephone messages, any
harmful matter, as defined in Section 313, to a minor with the intent of
arousing, appealing to, or gratifying the lust or passions or sexual desires of
that person or of a minor, and with the intent or for the purpose of seducing a
minor, is guilty of a public offense and shall be punished by imprisonment in
the state prison or in a county jail.â€
It has been
held that “seducing†in this statute means enticing the minor to engage in a
sex act:
“[T]he word ‘seducing’ was not intended to have the
vague meaning of ‘lead[ing] astray’ [citation] but to have the precise meaning
of ‘carry[ing] out the physical seduction of:
entic[ing] to sexual intercourse.’
[Citation.] And, in this context,
‘sexual intercourse’ clearly refers to ‘intercourse involving genital contact
between individuals’ rather than ‘heterosexual intercourse involving
penetration of the vagina by the penis.’
[Citation.] Thus, the ‘seducing’
intent element of the offense requires that the perpetrator intend to entice
the minor to engage in a sexual act involving physical contact between the
perpetrator and the minor.†(
224, 239-240.)
Guajardo
contends that A.G. testified only that he showed her the pornographic
videos. There was no testimony
indicating that he intended to seduce her at the times when he showed them, or
that any sexual acts took place between them at those times.
“Intent is
rarely susceptible of direct proof and must usually be inferred from a
consideration of all the facts and circumstances shown by the evidence.†(People
v. Pitts (1990) 223 Cal.App.3d 606, 888.)
Here, the evidence showed that
Guajardo maintained a secret, sexually exploitative relationship with A.G. for
years. The jury could readily and
reasonably infer that he showed her the pornographic videos as part of that
relationship and with the intent to induce her to have sex with him. In light of all the circumstances, there are
scant grounds for believing he had any other intent. We conclude, therefore, that the evidence was
sufficient to support the conviction.
offense
Guajardo
argues that the court was required to instruct the jury
subdivision (a), as a lesser offense necessarily included in
count 11. Section 313.1,
subdivision (a), provides:
“Every
person who, with knowledge that a person is a minor, or who fails to exercise
reasonable care in ascertaining the true age of a minor, knowingly sells,
rents, distributes, sends, causes to be sent, exhibits. or offers to distribute
or exhibit by any means, including, but not limited to, live or recorded
telephone messages, any harmful matter to the minor shall be punished as specified
in Section 313.4.â€
This
statute is similar to section 288.2, subdivision (a)(1), except that
it does not require a showing of intent to appeal to sexual desires or to
seduce. Guajardo argues that an
instruction on this offense should have been given because the jury could
reasonably have found that he exhibited the pornographic videos to A.G. without
an intent to seduce her.
A trial
court must give an instruction on a lesser-included offense sua sponte if the
evidence warrants the instruction. (
596.) The evidence warrants the
instruction if there is substantial evidence which, if accepted, would absolve
the defendant of the greater offense, but not the lesser. (People
v. Waidla (2000) 22 Cal.4th 690, 733.)
We review de novo the court’s instructions on lesser-included
offenses. (People v. Cook, supra, at p. 596.)
As we have
said, in light of all the circumstances, there would be little basis for
imputing to Guajardo any intent in showing the videos to A.G. other than the
intent to induce her to have sex with him.
We conclude that there was no substantial evidence which, if accepted,
would have absolved Guajardo of the greater offense, but not the lesser. The instruction therefore was not required.
Even if
there had been any error, it would have been harmless beyond a reasonable
doubt. Given that the jury found that
Guajardo committed every sex act against A.G. with which he was charged, there
is virtually no likelihood that it would have found that, although he exhibited
pornographic videos to her at his house, he did so without sexual intentions
toward her.
III. Restitution fine
The trial
court imposed a $1,000 restitution fine under section 294,
subdivision (b). This statute
provides a fine for offenders convicted of violating section 261, 264.1,
285, 286, 288a, or 289. Guajardo was not
convicted of any of those offenses.
Guajardo and the People agree that the fine must be stricken, as do
we. We will order the sentence corrected
to omit that fine.
IV. Clerical error on
sentence for count 11
At the
imposed a term of eight months, equal to one-third of the middle term, for
count 11. (§ 288.2, subd.
(a).) The abstract of judgment, however,
shows a sentence of two years for count 11. The parties agree, correctly, that the
court’s oral pronouncement of the sentence controls. (People
v. Mesa (1975) 14 Cal.3d 466, 471.)
We order the court to correct the abstract of judgment.
DISPOSITION
The $1,000
restitution fine imposed for count 11 is stricken and the trial court
shall correct the abstract of judgment to remove that fine. The trial court is also ordered to correct
the abstract of judgment to show that the sentence for count 11 is eight
months. The trial court shall forward
the corrected abstract to the appropriate correctional authorities. The judgment is affirmed in all other respects.
_____________________
Wiseman, Acting P.J.
WE CONCUR:
_____________________
Levy, J.
_____________________
Peña, J.
name="_ftn1" title=""> [1]Subsequent statutory references are to the
Penal Code.
name="_ftn2" title=""> [2]The jury apparently found some of the
multiple-victim allegations not true because K.G. did not claim Guajardo
committed all the same kinds of acts against her as he committed against
A.G. The verdict forms specified the
type of lewd act upon which each count charged under section 288,
subdivision (a), was based. For
instance, the form for count 1 described Guajardo’s act against A.G. as
“touching breasts at defendant’s home,†and the form for count 5 described
the act against A.G. as “penis to vagina.â€
The jury found that Guajardo committed the acts “touching breasts†(or
“breast areaâ€) and “touching vaginal area†against both A.G. and K.G., and
found the multiple-victim allegations true for those acts only.
