P. v. Aristondo

Filed 4/30/08 P. v. Aristondo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Edy Ronaldo Aristondo appeals from a judgment following his conviction, after a jury trial, of two counts of committing a lewd act upon a child under the age of 14 and one count of aggravated sexual assault of a child. (Pen. Code,  288, subd. (a), 269.)[1] The court sentenced him to 15 years to life in prison for the count two aggravated sexual assault, a six-year concurrent middle term for count one, and a stayed sentence for count three. Appellant challenges the sufficiency of the evidence, raises instructional error, and argues that the jury committed misconduct. We affirm.

Prosecution Case

Minor (M.) was born in January 2000 and lived with her parents (mother and father) in Santa Barbara. Before her marriage, mother lived with her uncle, Emilio, and his family in Santa Barbara for many years. When M. was three or four years old, two of mother's adult brothers, including appellant, moved to Santa Barbara and lived with Emilio, his wife, and their teenage daughters.

During 2004, M.'s family lived in a home on Salsipuedes Street where appellant was a regular visitor who brought presents for M. On one occasion, appellant carried M. to her room in the Salsipuedes home, with his hand over her mouth. She tried to hit and kick him as he carried her. Appellant closed the door, removed M.'s underwear, and put his finger in her vagina ("sapito"). Mother recalled that in the summer of 2004, M. was angry and said that she did not like appellant. Clenching her fist, M. said that he had put his finger in her "sapito." Mother asked, "Are you sure?" M. replied, "Yes, Mommy. I'm not lying to you." Appellant heard them and explained that he had been wiping M. and putting Vaseline on her rash after she used the bathroom. M. said appellant was lying. Later that night, she again told mother that she was not lying. Mother said that she would talk to appellant.

M. started acting differently toward appellant. For example, she ran away when he tried to hug her. When mother questioned or criticized M.'s behavior toward appellant, M. explained that she no longer liked him because he had put his finger in her vagina. Around the same time, M. would cry and say she was having bad dreams. Not wanting to believe M.'s complaint, mother did not discuss it with anyone, including father. She feared his reaction and family conflict.

M. sometimes spent the night at Emilio's house and visited his daughters. One time, one of the daughters (J.) told M. to get something from appellant's room. When M. entered the room, appellant removed her pants and underwear and touched her buttocks ("pompis") with his penis ("pajarito"). Appellant pulled up her pants when someone knocked on the door.

In 2005, mother and father bought property with a house, a garage, and a one-room studio on Rhoads Avenue. M.'s paternal grandparents and aunt lived in the main house. Mother, father, M. and her younger sister lived in the studio. Appellant lived in a room in the garage.

In May 2005, mother and father were showering in the studio bathroom. They left M. and her younger sister nearby, in the studio. Appellant entered the studio, removed M.'s underwear, put his finger in her vagina, and pushed "really, really hard." M. tried to put her legs together, but appellant pushed them apart.

Mother finished her shower, left the bathroom wrapped in a towel, and found M. sitting on appellant's lap, crying. Mother asked what was wrong. Standing behind mother, appellant shook his hand from side to side; M. thought he meant that mother would hit her if she told her what had happened. Instead of answering mother, M. shook her head from side to side. Appellant said that M. and her sister had been fighting. At mother's request, appellant left the room. Mother told M. to tell the truth. M. said that appellant had put his finger in her vagina and that it really hurt; she demonstrated by pushing her finger on mother's arm. M. also said that she tried to close her legs but could not. Crying, M. said, "Mommy, please, can you tell him to leave the house? I don't want him here anymore." She said that appellant had kissed her on the mouth; she repeatedly asked mother why he was doing that.

Mother did not advise father or anyone of M.'s new complaint at first. She monitored M. and made sure she did not play near appellant's room. Later, she discussed M.'s complaint with father and they confronted appellant. Appellant claimed that he had put Vaseline on a rash near M.'s vagina. Mother told appellant not to wipe M. in the bathroom and to get her if M. needed help. After that discussion, appellant stopped spending time with M.'s family. M. was happy that he was not around as much.

M. had complained to a young cousin about appellant's having touched her and told him not to tell anyone about it. He discussed M.'s complaint with his mother (M.'s aunt) who disclosed it to M.'s paternal grandparents. After her grandparents told father that there was "something going on," M.'s father contacted the police.

A social worker from the Child Abuse Listening and Mediation agency interviewed M. M. described occasions when appellant had removed her pants, touched her vagina with his finger, opened her legs, removed his underwear, and put his penis ("desa") which was hard, next to her vagina. Appellant told M. not to tell mother, and that mother would hit her if she told her.

A detective interviewed appellant. Appellant said that once M. had told him that her "sapito" hurt and asked him to put Vaseline on it. When he did so, she reacted badly and told him not to touch her "sapito." He said that on another occasion, she had asked him to help her clean herself in the bathroom. When he cleaned her, she told him not to touch her "sapito." On both occasions, she told her mother that he had put his finger inside her. Appellant told the detective that he might have put his finger in M. a "little bit" while applying Vaseline or cleaning her. Appellant described a separate incident that occurred while he was playing with M.'s sister and their parents were bathing. He recalled that M. had pushed her sister and he had told her not to do that. M. laughed, appellant got angry, and he hit her bottom. When mother asked why M. was crying, appellant explained that he had hit her.

Appellant denied that he ever put his penis near M.'s vagina or kissed her mouth. He said that M. was spoiled and did not like his correcting her behavior. He later claimed that on one occasion, M. had approached him and asked him to touch her vagina. When she pulled her underwear to the side, he put his fingertip in her vagina. Showing the detective his finger, appellant indicated that approximately one-half inch of his finger had entered her vagina. Appellant said that he felt badly about having placed his finger in M.'s vagina and putting Vaseline on her.

M.'s kindergarten teacher testified that she was an honest, mature student. M. was reliable and helped the teacher communicate with Spanish-speaking students and parents.

Defense Case

Several members of appellant's family testified on his behalf. They described how M.'s parents and family members other than appellant had spoiled M. If M. did not get what she wanted, she would become angry and tell appellant that he was no longer her uncle.

M. had frequent rashes in her genital area that family members treated with Vaseline or other substances. When her parents were away, M. asked appellant to treat her rash with Vaseline and thanked him when he did so. M. sometimes ran around the house naked and shook her bottom. M. had been present while adults watched soap operas with people kissing and removing clothing.

M. told J. that several people, including appellant, and two children, had touched her "sapito." M. sometimes lied about things, including her behavior and whether something belonged to her.

Emilio recalled prior serious incidents involving mother's dishonesty. When mother lived in his home, she removed some checks from his checkbook, used them to make purchases, and denied having removed them. At age 14, mother lied about having an adult boyfriend.

Appellant's investigator described several comments that mother made regarding the case: Mother told the prosecuting attorney that she wished to drop the charges and was told, "[t]hey [would] laugh in [her] face, say [she was] lying, [that her] husband lied, and [M.] lied." Mother also said that she had always believed M. Mother advised another prosecution employee that she wanted to stop the action against appellant and that she thought M. might have fabricated the stories. That employee said that M. could be removed from mother if she failed to protect her.

DISCUSSION

Appellant contends that the judgment is not supported by substantial evidence. In reviewing an insufficient evidence claim, we consider the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We presume the existence of every fact supporting the judgment that the jury reasonably could have deduced from the evidence, and a judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (People v. Crittenden (1994) 9 Cal.4th 83, 139; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

Appellant was convicted of violating section 288, subdivision (a) on two occasions, once in M.'s Salsipuedes house and, later, at Emilio's house. That statute requires that the defendant "willfully and lewdly commit[] any lewd or lascivious act, . . . upon or with the body," of a child under the age of 14 years. A lewd act is any touching of a child "'with the specific intent to arouse, appeal to, or gratify the sexual desires'" of either the child or the adult. (People v. Levesque (1995) 35 Cal.App.4th 530, 543.)

Appellant argues that when he touched M. at the Salsipuedes house, he acted without sexual motivation because he was applying Vaseline to her for medicinal treatment purposes. We are not persuaded. It is true that defense witnesses provided testimony to support this claim. We note, however, that the jury decided to credit M.'s contrary testimony concerning the incident and mother's testimony regarding M.'s demeanor and statements near the time of the incident. Moreover, appellant admitted that he felt guilty about having touched M. Accordingly, M.'s testimony is not so inherently improbable or unreliable that it cannot rise to the level of substantial evidence. (People v. Ozene (1972) 27 Cal.App.3d 905, 910, disapproved on other grounds in People v. Gainer (1977) 19 Cal.3d 835, 844, 851-852; see also People v. Headlee (1941) 18 Cal.2d 266, 267.)

Appellant also attacks the sufficiency of the evidence of the section 288, subdivision (a) violation that he committed at Emilio's house. He argues that the evidence is inconsistent, conflicting, without corroboration and "equivocal." For example, he claims that M. never reported the incident to mother; M. changed her story; during her interview with the social worker, M. never stated that appellant touched his penis to her vagina; and M. "changed her description of the touching by placing [anatomical] dolls front to back." Such claimed inconsistencies do not render M.'s testimony so inherently improbable or unreliable that it cannot rise to the level of substantial evidence. (People v. Ozene, supra, 27 Cal.App.3d 905, 910; People v. Headlee, supra, 18 Cal.2d 266, 267.) M. told the social worker that when she entered his room in Emilio's house, appellant removed her pants and underwear and touched her vagina with his penis. She later testified that he touched his penis to her body. This is sufficient to prove a violation of section 288, subdivision (a). (See, e.g., People v. Diaz (1996) 41 Cal.App.4th 1424, 1427; People v. Young (2005) 34 Cal.4th 1149, 1181 [the testimony of one witness is sufficient to support a conviction].)

Appellant further argues that the evidence was not sufficient to support his aggravated sexual assault conviction because there was not evidence that the assault was committed with the requisite force, violence, duress or menace. We disagree. The jury convicted appellant of aggravated sexual assault after receiving instructions defining the crime under sections 269, subdivision (a)(5), and 289, subdivision (a)(1). Together those statutes prohibit a person from committing a sexual penetration upon a child who is under 14 years of age and is at least seven years younger than the assailant, against the victim's "will by means of force, violence, duress, menace . . . ." ( 289, subd. (a)(1), 269, subd. (a)(5).)

Here, the aggravated sexual assault occurred at the Rhoads Avenue studio home when appellant put his finger in M.'s vagina while her parents were in the shower. M. told mother that she tried to close her legs but appellant pushed them apart. In addition, she said that when appellant put his finger in her vagina, "it hurt a lot," and that he pushed "really, really hard"; she pressed her finger against mother's arm to demonstrate what she meant by "really hard." That evidence established that appellant used "'physical force substantially different from or substantially in excess of that required for a lewd act.'" (People v. Babcock (1993) 14 Cal.App.4th 383, 388.) Substantial evidence supports the aggravated sexual assault conviction.

CALCRIM No. 220

Appellant contends that by instructing the jury with CALCRIM No. 220, the court violated his federal due process right to have his guilt determined beyond a reasonable doubt. Specifically, he claims that the CALCRIM No. 220 definition of reasonable doubt prevents the jury from considering whether a lack of evidence gave rise to a reasonable doubt. We reject this contention.

In evaluating the correctness of jury instructions, we consider the instructions as a whole. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Frye (1998) 18 Cal.4th 894, 957.) Reasonable doubt may arise from the lack of evidence at trial as well as from the evidence presented. (People v. Simpson (1954) 43 Cal.2d 553, 566).) The plain language of CALCRIM No. 220 does not instruct otherwise. (People v. Campos (2007) 156 Cal.App.4th 1228, 1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093.) "[S]o long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof." (People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508; People v. Rios (2007) 151 Cal.App.4th 1154, 1156-1157.)

Jury Misconduct

Finally, appellant contends that the court erred by denying his new trial motion because the "shortness of the jury deliberations constituted prejudicial juror misconduct." We disagree.

Trial testimony lasted four days. The jury deliberated for approximately one hour and 20 minutes. (The minutes reflect that jury deliberations began on September 15, 2006, at 9:10 a.m., and the jury returned its verdict at 11:20 a.m. The clerk notified defense counsel at approximately 10:30 a.m. that the jury had reached its verdicts.)

Numerous courts have rejected similar claims of inadequate deliberations involving lengthier trials with complex issues and short periods of deliberation. For example, in People v. Weaver (2001) 26 Cal.4th 876, 973-974, the court upheld a sanity phase verdict that the jury returned just 42 minutes after a trial with 16 days of testimony. The court in People v. Robertson (1982) 33 Cal.3d 21, 36, concluded that deliberations of only three and one-quarter hours to resolve guilt and special circumstance issues in a death penalty case reflected the strength of the prosecution case. Here, the presentation of evidence consumed four court days, with perhaps five hours of testimony per day. The jurors deliberated for more than an hour in a case where the verdicts depended on their assessment of credibility. Appellant's claim that the jurors failed to deliberate adequately is at best speculative.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Frank J. Ochoa, Judge

Superior Court County of Santa Barbara

______________________________

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.

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