P. v. Trujillo
Filed 2/26/13 P. v. Trujillo CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JACOB ROY TRUJILLO,
Defendant and
Appellant.
F063616
(Super.
Ct. No. VCF241469)
APPEAL from
a judgment of the Superior Court of Tulare
County. Gary L. Paden, Judge.
Deborah L.
Hawkins, 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, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
Defendant
Jacob Roy Trujillo was found guilty of a total of four acts of molestation
against two child victims. With sentence
enhancements for a prior strike, among other things, he received a determinate
sentence of 13 years plus an indeterminate sentence of 60 years to life. In this appeal, Trujillo
argues that the convictions on two of the counts were not supported by
sufficient evidence. He also argues
that, of six witnesses who gave propensity testimony under
should have been excluded. We disagree
and affirm the judgment.
FACTUAL AND
PROCEDURAL HISTORIES
The
district attorney filed an information
on January 5, 2011,
charging Trujillo with four
counts: (1) a lewd act upon J.V., a
child under 14, consisting of kissing her using his tongue (Pen. Code,
§ 288, subd. (a));
name="_ftnref1" title="">[1] (2) communicating with J.V. (by
discussing sex with her) with intent to commit an enumerated sex offense
lewd act upon M.H., a child under 14, consisting of touching her vaginal area
(§ 288, subd. (a)); and (4) oral copulation with the vagina of
M.H., a child under 10 (§ 288.7, subd. (b)). For sentence-enhancement purposes on all
counts, the information alleged a prior strike (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony
(§ 667, subd. (a)(1)), both based on a first degree burglary
(§ 459) of which Trujillo was
convicted in 1990. On counts 1 and
3, the information alleged a multiple-victim
special circumstance.
(§ 667.61, subd. (b).)
Trujillo
owned a property in Pixley with three houses.
He lived in one and rented one to the family of M.H. M.H.’s father testified at trial that on
April 13, 2009, when M.H. was five years old, she came in from outside and
told him Trujillo “licked her down there.â€
She said she told him to stop and she was going to tell her father.
Trujillo
was a long-haul trucker and kept his truck, which had a sleeping area in the
cab, parked on the property. M.H.
testified at trial that Trujillo
gave her and her brothers some candy.
Her brothers then went away, leaving M.H. alone with Trujillo. He also gave her a big teddy bear. Then M.H. was in Trujillo’s
truck with him, on the bed. He touched
her with his lips. She demonstrated
where he touched her by circling the crotch on a diagram of a girl. Trujillo
told her not to tell her father. This
incident was the basis of counts 3 and 4 of the information.
M.H.’s
brothers, who were 10 and 12 at the time of trial, testified. They said Trujillo
gave chocolate bars to all three siblings that day. He gave a fourth chocolate bar to the older
brother and told him to take it to their father. The boys went in their house to take the
candy to their father, while M.H. remained with Trujillo.
After
hearing what happened, M.H.’s father called the police and went with M.H. to
confront Trujillo. Trujillo’s
wife asked M.H., “Who hurt you?†M.H.
replied, “Jacob and Dillon,†referring to Trujillo
and a cousin of M.H.’s father. On
cross-examination, M.H. testified that Dillon once pulled down his pants and
her pants and did “something nasty†to her in a closet.
M.H.’s
father called M.H.’s mother, who came home from work. The mother testified that when she got home,
M.H. was scared, thought she was in trouble, had her head down, and was crying
and sad.
A sexual
assault nurse examiner swabbed M.H.’s inner thighs, mouth, and genitals. DNA testing of one of the inner thigh samples
revealed two profiles, one of M.H.’s own DNA and one belonging to a male. Trujillo’s
DNA profile matched that of the male contributor. The profile matched one in 4.8 billion
Hispanics, 1 in 2.7 billion Caucasians, and 1 in 11.9 billion African
Americans. It was impossible to determine
what sort of fluid or tissue the DNA came from.
It was possible that the DNA had been transferred to M.H.’s thigh
without contact between her and Trujillo
as, for instance, through contact between M.H. and surfaces inside the truck on
which Trujillo had sat. Testing of M.H.’s underwear also revealed
male DNA, but the sample was too small for further identification.
J.V., born
in May 1999, and 12 years old at the time of trial, is Trujillo’s
granddaughter, the daughter of Trujillo’s
daughter K.T. J.V. testified at trial
about events that took place during two visits with Trujillo. The first visit was around 2005, when J.V.
was six, but could have been a year earlier or a year later. J.V. and her family were staying with Trujillo
for Thanksgiving at Trujillo’s
house in Arizona. J.V. testified that she was sleeping in a
bedroom and woke up in the morning and went into the living room. Her mother was asleep in the living
room. Trujillo
was lying on the living room floor. He
told J.V. to lie down next to him. Then
he put his hand under her pajama pants and into her underpants and touched her
“private spot.†“‘Does that feel good?’â€
he asked. J.V. did not tell anyone about
this at the time because she did not know whether it was right or wrong and did
not want to get Trujillo in
trouble.
The second
visit was in June or July of 2008, when J.V. was nine. Trujillo
was then living in Pixley. Trujillo
drove to Santa Clara, where J.V.’s
family lived, and picked up J.V. and her younger sister. The two girls stayed with Trujillo
for about a month. One night, J.V. was
lying awake in bed when Trujillo
came into the room where J.V. and her sister slept. J.V. pretended to be asleep. Trujillo’s
dog was with him and Trujillo was
talking on the phone. He stopped talking
and picked J.V. up, cradling her like a baby.
Then he kissed J.V. on her lips.
J.V. testified that “it was not like in the tongue but it was only like
a regular kiss and that’s it.†J.V. did
not remember telling an interviewer that she felt Trujillo’s
tongue. After Trujillo
left the room, J.V. woke up her sister and said she was scared, did not know
what to to, and wanted to go home. The
jury watched a video recording of an interview J.V. gave as part of the police
investigation on January 20, 2010. J.V. told the interviewer that Trujillo
kissed her on the lips “[w]ith his tongue in my mouth.†This incident was the basis of count 1
of the information.
Later
during the same visit, Trujillo
asked J.V.’s sister if she had changed her underwear. The sister said no. K.T. testified that when her daughters were
small, she did not insist they change their underwear every day. Trujillo
then put his hand inside J.V.’s pants and underwear, touched her genitals,
withdrew his hand, and said, “‘Well do you want to smell like this?’â€
Still later
during the 2008 visit, J.V. was in Trujillo’s
room and Trujillo told her to lie
down on the bed. She did, and he lay
down beside her, on top of her arm. He
said, “‘Do you want to know about sex[?]’â€
She said no, but he began speaking anyway. J.V. testified, “I think he said that a boy
goes under the girl and they lay on top of each other and that’s when they make
a baby and that’s all I think I remember.â€
J.V. also testified, “I felt like he was telling me something that he
wasn’t supposed to so I got kind of, like I was kind of like I didn’t feel like
a regular person would feel like.†This
incident was the basis of count 2 of the information. J.V. told her mother about all three incidents
when she returned home.
Relying on
Evidence Code section 1108, the People presented evidence that Trujillo
molested six other girls over the course of his life. One was R.H., Trujillo’s
sister. Trujillo,
who was 57 at the time of trial, was nearly eight years older than R.H. R.H. testified that, at some time before she
was old enough for school, Trujillo
made her lie down in a closet in their house.
She said he was “on top of me and you know like moving and stuff and,
the weight of his body being quite suffocating and I had to use the restroom
and he wouldn’t let me get up. He had
told me to just pee in the closet and so I did and peed through my clothes and
everything.†After being shown an
interview transcript to refresh her memory, R.H. testified that during this
incident, Trujillo touched her
vaginal area over her clothes. There
were other incidents after she started school, at the age of five or six, when
he lay on top of her and “would be moving around and stuff.†She said Trujillo
“would touch and everything like to you know situate himself,†and “would also
situate you know like my hips and stuff.â€
R.H. testified that in general, Trujillo
“was very abusive growing up.â€
Another
witness who testified about prior incidents of molestation was K.S. K.S. was about a month older than R.H. Between the ages of six and nine and a half,
K.S. lived with Trujillo’s family
as a foster child. When K.S. was eight
or nine and Trujillo was in high
school or junior high school, Trujillo
began having sexual intercourse with her against her will. While his parents were at work, he would
order her to go into his parents’ bedroom “and then he would have sex with me
and stuff like that and fondle me.†She
remembered that during intercourse, “his pubic hairs would touch my bare skin
around the vagina†and this was uncomfortable.
Trujillo forced K.S. to have
intercourse “lots of times†when she was between the ages of eight and nine and
a half. It made her feel dirty, but she
did not tell anyone for a time because she thought she would not be believed. When she was nine and a half, K.S. revealed
the molestation to her teacher. She was
examined by a doctor that day and permanently removed from the foster care
placement with Trujillo’s
family.
C.M. and
B.M. were daughters of Trujillo’s
mother’s live-in boyfriend. E.M. was a
half-sister of C.M. and B.M. When E.M.
was nine and Trujillo was around
39, he placed her in front of him on the seat of a motorcycle and took her for
a ride around the block. As he drove, he
put his finger on her vagina, on the outside of her clothes, and kept it there
for about a minute. E.M. was scared and
did not mention this to anyone. On
another occasion, Trujillo ordered
E.M. to take her shirt and bra off so he could look at her breasts. She said no at first, but Trujillo
persisted and she complied. When E.M.
was 12, she went with Trujillo in a
van to run an errand to a store for Trujillo’s
mother-in-law. Before going to the
store, Trujillo drove out into the
country, stopped, and took E.M. to the back of the van. He told her to pull her pants down. When she did, he put his finger in her vagina
and asked if it felt good. She did not
answer. He said that if his
mother-in-law asked why they took so long going to the store, she should say
there was a long line. E.M. never told
anyone of the incident.
Later, E.M.
went to a bank with her stepmother (Trujillo’s
mother) and Trujillo in the
van. While the stepmother was inside the
bank, Trujillo called E.M. up to
the front seat with him, took his penis from his pants, and told her to stroke
it. She did so one time and returned to
the back of the van. E.M. testified that
there were many other occasions between the time she was nine and the time she
was 15 when Trujillo touched her
vagina through her underwear. When she
was staying with her stepmother, Trujillo
would sometimes come into the room where she was sleeping and touch her. Other times, he did it while she was lying on
the living room floor.
B.M.
testified that from the time she was six to the time she was between 13 and 15,
she and C.M. lived with their father and Trujillo’s
mother. Trujillo,
who was an adult, did not live there, but visited. At least once during this time, Trujillo
touched B.M. and C.M. He touched B.M.’s
vagina area. She was disgusted and
scared and did not tell anyone. Later,
when B.M. was 16, Trujillo came to
B.M.’s house to take her shopping.
During the outing, he touched her leg and stomach.
C.M.
testified that she began visiting her father and Trujillo’s
mother when she was around nine. During
one visit when C.M. was nine, after C.M. and B.M. had taken showers and were
wrapped in towels, Trujillo, then an adult, came into the bathroom and told
them to take off their towels so he could see them. C.M. screamed and Trujillo
left. Later, after Trujillo’s
mother moved to Pixley and C.M. was 11 or 12, C.M. and B.M. were sitting on a
couch at Trujillo’s mother’s
house. Trujillo
sat between them and said to C.M., “‘Why haven’t you developed like your sister
did[?]’†Trujillo
tried to touch C.M.’s chest, but she moved away.
Finally,
S.B. testified. S.B. is the half-sister
of Trujillo’s daughter. When she was about six, her family visited Trujillo. During the visit, Trujillo
put a pornographic video on the television and told her to sit in front of the
television and watch. No one else was in
the house.
Trujillo
testified in his own defense. He said
that on April 13, 2009,
one of M.H.’s brothers was squirting her and the other brother with a squirt
gun. Trujillo
invited M.H. and one brother to sit with him so the other brother would stop
squirting. M.H. sat on his knee. Then he got some candy bars from his truck
and gave one to each of the children and an extra one for their father. The boys went away and M.H. stayed in the
truck for a little while. Then he helped
her get out, and noticed that she smelled like urine. He asked if she wet herself, and she said
no. He said he never touched her
inappropriately. M.H. was mad at him
because he did not buy her a toy she wanted.
Trujillo
denied that he touched J.V. inappropriately during the 2005 Thanksgiving
visit. He kissed her during the 2008
visit, but it was an innocent good-night kiss.
He did not put his tongue in her mouth.
He was talking on the phone and his wife was present. Trujillo
admitted he talked to J.V. about sex, but said he did so because J.V. told him
she had seen her mother naked in bed with a man. After he began, J.V. said she did not want to
hear any more, and he stopped.
Trujillo
testified that R.H., K.S., E.M., B.M., C.M., and S.B. all lied in their
testimony. He never did any of the
things they alleged. Trujillo
was involved in an ongoing dispute with R.H. over their mother’s estate.
Trujillo’s
wife, Maria Trujillo, testified for the defense. She said that when M.H.’s father brought M.H.
to the Trujillos’ house on April 13,
2009, and she asked M.H. who touched her, M.H. said Dillon had done
it and denied that Trujillo
had. Maria said it was her idea and Trujillo’s
to call the police. M.H. was calm. Maria never saw Trujillo
touch J.V. inappropriately. J.V. acted
normally during the 2005 Thanksgiving visit.
The 2008 visit was extended because J.V. and her sister wanted to stay
longer. Maria never heard any previous
complaints about Trujillo by any of
the girls and women who testified against him.
Valentino
Burnias, Maria’s son, was present during the 2005 Thanksgiving visit. He testified that he never heard J.V.
complain that Trujillo had touched
her inappropriately, and J.V. never appeared to want to avoid Trujillo.
Burnias also was present on occasions
when E.M. visited Trujillo. E.M. did not appear to him to be afraid of or
to want to avoid Trujillo, and he
never heard her make any statements about inappropriate behavior on Trujillo’s
part.
The defense
called John Lee, an investigator for the district attorney’s office, to
testify. Lee said he looked in Trujillo’s
truck and did not find a teddy bear.
The defense
presented a DNA expert. He testified
that he had no disagreement with any of the results or conclusions of the
reports prepared for the prosecution by the Department of Justice. He stated that, although all the male DNA
found on M.H.’s thigh matched Trujillo’s
profile, the sample did not generate a full DNA profile, so there was “not a
match, a concrete match to a specific male.â€
Still, “Trujillo cannot be
excluded as a possible contributor of†the sample.
The jury
found Trujillo guilty as
charged. It found the multiple-victim
allegations true. The court found the
prior-conviction allegations true.
The court
imposed consecutive terms of 30 years to life on counts 1 and 3. These were the two lewd acts on victims under
14 (§ 288, subd. (a))—kissing J.V. using his tongue and touching the
vaginal area of M.H.—which, with the multiple-victim special circumstance, each
carried a term of 15 years to life (§ 667.61, subds. (b), (c)(8),
(e)(4)), which was doubled because of the prior strike (§ 667,
subd. (e)(1)). On count 2,
communication with J.V. with intent to commit a sex offense (§ 288.3), the
court imposed the upper term of four years, doubled for the prior strike, plus
five years for the prior serious felony (§ 667, subd. (a)(1)), a
total of 13 years, consecutive to the sentences on the other counts. On count 4, oral copulation of M.H.
(§ 288.7, subd. (b)), the court applied section 654 to stay a
term of 30 years to life, calculated as 15 years to life because of the
multiple-victim special circumstance, doubled because of the prior strike.
DISCUSSION
I. Evidence Code
section 1108
Trujillo
argues that the court violated his due process right to a fair trial by
admitting “excessive†propensity evidence under Evidence Code
section 1108. Specifically, he
asserts that the court was required to exclude the testimony of K.S. and
S.B. We conclude that the court acted
within its discretion in admitting this testimony. (People
v. Waidla (2000) 22 Cal.4th 690, 717 [abuse of discretion standard governs
review of trial court’s rulings on admissibility of evidence].)
With
certain exceptions, Evidence Code section 1101 provides that “evidence of
a person’s character or a trait of his or her character … is inadmissible
when offered to prove his or her conduct on a specified occasion.†(Evid. Code, § 1101,
subd. (a).) Evidence Code
section 1108 establishes one of the exceptions. It states:
“In a criminal action in which the defendant is accused of a sexual
offense, evidence of the defendant’s commission of another sexual offense or
offenses is not made inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to section 352.â€
(Evid. Code, § 1108, subd. (a).)
Evidence
Code section 1108 was enacted in 1995 because the “Legislature …
determined that the policy considerations favoring the exclusion of evidence of
uncharged sexual offenses are outweighed in criminal sexual offense cases by
the policy considerations favoring the admission of such evidence. The Legislature … determined the need
for this evidence is ‘critical’ given the serious and secretive nature of sex
crimes and the often resulting credibility contest at trial. [Citation.]â€
(People v. Fitch (1997) 55
Cal.App.4th 172, 181-182, fn. omitted.)
Because “‘the willingness to commit a sexual offense is not common to
most individuals,’†the Legislature concluded that “‘evidence of … prior
sexual offenses is particularly probative and necessary for determining the
credibility of the witness.’
[Citation.]†(
966, 983.)
Our Supreme
Court has held that evidence admitted in conformity with Evidence Code
section 1108 does not violate a defendant’s due process rights. (People
v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta).) Trujillo’s
due process challenge, therefore, depends only on whether the trial court acted
within its discretion in admitting the testimony of K.S. and S.B. under
Evidence Code section 1108.
As Evidence
Code section 1108 provides, propensity evidence in the form of prior sex
offenses is admissible only if it is not unduly prejudicial under Evidence Code
section 352. Evidence Code
section 352 provides that a trial court may exclude evidence the probative
value of which is substantially outweighed by its likely prejudicial
effect. Explaining the application of
Evidence Code section 352 in the context of evidence deemed admissible by
Evidence Code section 1108, the Supreme Court in Falsetta stated:
“Rather than admit or exclude every sex offense a
defendant commits, trial judges must consider such factors as its nature,
relevance, and possible remoteness, the degree of certainty of its commission
and the likelihood of confusing, misleading, or distracting the jurors from
their main inquiry, its similarity to the charged offense, its likely
prejudicial impact on the jurors, the burden on the defendant in defending
against the uncharged offense, and the availability of less prejudicial
alternatives to its outright admission, such as admitting some but not all of
the defendant’s other sex offenses, or excluding irrelevant though inflammatory
details surrounding the offense. [Citations.]†(Falsetta,
supra, 21 Cal.4th at p. 917.)
The Supreme Court went on to explain that convictions of the
prior offenses and similarities between the charged and uncharged offenses were
particularly good indicators of the probative value of prior crime
evidence. (Falsetta, supra, 21 Cal.4th at p. 917.)
In this case, the
trial court did not admit every prior sex offense proffered by the
prosecution. The prosecution sought to
present 12 propensity witnesses under Evidence Code section 1108. The court excluded four of these,
stating: “I did a balancing test. I excluded four of these potential 1108
witnesses much to the dismay of [the prosecutor] because I did not feel that they
were probative on the issues here given the fact that some of them involved
some violent conduct which I thought would be highly prejudicial to Mr.
Trujillo .…†Of the remaining eight
witnesses, the prosecution chose to present the six whose testimony we have
described.
Trujillo
first asserts that the trial court “failed to analyze some important Falsetta
factors when it admitted the [S.B.] and the [K.S.].†As the People observe, however, there is no
requirement that the court state on the record the factors it has considered or
the weight it has given them. Rejecting
a similar argument that a trial court had not stated adequate reasons for its
ruling on an Evidence Code section 352 dispute, the Supreme Court
stated: “[W]hen ruling on a
section 352 motion, a trial court need not expressly weigh prejudice
against probative value, or even expressly state it has done so. All that is required is that the record
demonstrate the trial court understood and fulfilled its responsibilities
under … section 352.†(
153, 214.) Since Trujillo’s
challenge to the admission of propensity evidence under Evidence Code
section 1108 essentially claims the evidence failed the test of Evidence
Code section 352, the same principle applies here. It is clear that the court understood the
analysis it was required to undertake under Evidence Code section 1108.
Trujillo
also contends that the K.S. and S.B. testimony should have been excluded
because of dissimilarity and remoteness.
K.S. was the only victim who claimed Trujillo forced her to have sexual
intercourse, while S.B. did not claim Trujillo touched her at all, but instead
made her watch a pornographic video. The
incident with S.B. was said, in counsel’s arguments during a hearing on
admissibility, to have taken place in the 1970’s. The offenses against K.S. happened more than
40 years ago, and Trujillo was a
minor at the time.
In spite of
these differences, the court could, within the bounds of reason, find the
evidence of prior offenses against K.S. and S.B. admissible. Both were relevant to Trujillo’s
propensity to engage in sexually aggressive behavior against very young
girls. This made them sufficiently
similar to the charged offenses. They
were remote in time, but their remoteness in this instance did not support the
proposition that they were aberrations, for the evidence as a whole illustrated
Trujillo’s propensity at numerous points over the course of his lifetime.
Trujillo
also argues that K.S.’s testimony should not have been admitted because
“[t]here was evidence that her claims were not true,†referring to the fact
that she reported the abuse at the time and Trujillo
was not charged. The possibility that
allegations of prior offenses are false does not, however, necessarily mean
evidence of those offenses is inadmissible under Evidence Code
section 1108. Falsetta stated that the degree of certainty of a prior offense’s
commission is one factor that must be considered, not that the evidence must be
excluded unless some quantum of certainty is attained. Here, there could be many reasons why Trujillo
was not charged. The degree of certainty
of his commission of offenses against K.S. was not so low that her testimony
was inadmissible as a matter of law.
For these
reasons, we cannot say the court abused its discretion. Trujillo
has not established a due process violation.
II. Sufficiency of evidence
of offenses against J.V.
Trujillo
maintains that the evidence was not sufficient to prove that he kissed J.V.
using his tongue (count 1, § 288, subd. (a)) or that he
communicated with J.V. with intent to commit a lewd act (count 2,
§ 288.3, subd. (a)). We
disagree.
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.]†(People
v. D’Arcy (2010) 48 Cal.4th 257, 293.)
There was
sufficient evidence to establish count 1.
To violate section 288, subdivision (a), an act must be done
“with the intent of arousing, appealing to, or gratifying the lust, passions,
or sexual desires of [the defendant] or the child .…†In the videotaped interview viewed by the
jury, J.V. stated that Trujillo
placed his tongue in her mouth when he kissed her while she was staying at his
house in Pixley in 2008. The conclusion
that Trujillo did this with the necessary state of mind was supported by the
nature of the act and by J.V.’s testimony about Trujillo’s sexually abusive
behavior toward her on other occasions, including the 2005 incident in which he
touched her vagina under her clothes and told her not to tell anyone. The jury’s finding also was supported by the
propensity evidence properly admitted under Evidence Code section 1108.
Trujillo’s
argument that the evidence was insufficient for this count is based on J.V.’s
trial testimony contradicting her interview statement and on Trujillo’s own
testimony that he gave J.V. an innocent goodnight kiss while holding a
telephone and in the company of his wife and his dog. The jury, however, could reasonably conclude
that J.V.’s interview statement was the more reliable, as it was closer in time
to the event and could reasonably disbelieve Trujillo’s
testimony.
There also
was sufficient evidence to establish count 2. The prosecution was required to prove that Trujillo
communicated with a minor with the intent to commit a lewd act. J.V. testified that in 2008, Trujillo
told her to lie on a bed, then proceeded to lie on her arm and explain sexual
intercourse to her even though she told him to stop. Again, from the nature of this act and from
the other evidence of Trujillo’s
sexual abuse of very young girls, the jury reasonably could infer that Trujillo’s
intent in doing this was not innocent.
Trujillo points out that J.V. herself testified that she thought Trujillo
was giving her information for when she grew up, but the jury could reasonably
find that a child’s guileless interpretation failed to recognize Trujillo’s
true intention.
For these
reasons, we conclude that Trujillo
has not shown that the evidence was insufficient to prove counts 1 and 2.
DISPOSITION
The judgment is affirmed.
_____________________
Wiseman, Acting P.J.
WE CONCUR:
_____________________
Cornell, J.
_____________________
Detjen, J.
name="_ftn1" title=""> [1]Subsequent statutory references are to the
Penal Code unless otherwise noted.
name="_ftn2" title=""> [2]The jury was instructed that the enumerated
offense it had to find an intent to commit was section 288,
subdivision (a), a lewd act upon a child under 14.
