P. v. Gonzalez
Filed 12/11/12 P.
v. Gonzalez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS
CRUZ GONZALEZ,
Defendant and Appellant.
G045967
(Super. Ct. No. 11CF1126)
O P I N I O N
Appeal
from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge.
Affirmed.
Barbara
A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury
found Carlos Cruz Gonzalez guilty of two counts of Penal Code section 288,
subdivision (a)
name="_ftnref1" title="">[1] by
willfully touching a minor “with the intent of arousing, appealing to, or
gratifying [his or the minor’s] lust, passions, or sexual desires†between
March 1, 2011 and April 28, 20011. The
trial court denied his motions for a new trial and his requests the court waive
section 290 registration and to reduce the felony convictions to
misdemeanors. The court granted Gonzalez
formal probation for five years under various terms and conditions, including
one year of incarceration in the county jail.
He challenges the sufficiency of the evidence to prove he twice touched
the minor with lewd intent during the relevant time period. We affirm.
FACTS
In
2011, Gonzalez lived in a home in Santa Ana with several other people,
including his two children, ages one and four, the mother of his two children,
Lizeth, her teenage sister, Yesenia, and their mother. Anna and her parents rented a room in the
house.
Anna
had no problems with Gonzalez before she turned 13 years old, but after her
13th birthday, Anna noticed Gonzalez looking at her and noticing her appearance. His hugs seemed different and he started to
whisper in her ear things like “when are we going to be together alone?†Anna noticed Gonzalez occasionally gave
Yesenia the same type of attention, but he did not hug her in the same way he
had started to hug Anna.
In
early April 2011, Gonzalez hugged Anna from behind while the two of them were
in the living room with one of Gonzalez’ young children. Anna said she “felt weird and surprised†by
Gonzalez’ conduct. He hugged Anna in
this manner once or twice that week and on other occasions later in the
month. In each instance, Gonzalez would
come up behind Anna, grab and hug her, and kiss her on the neck. He held her close enough to his body that
Anna could feel his torso and flaccid penis.
While Anna initially appreciated Gonzalez’ attention because it made her
feel pretty, she grew to dislike it because Gonzalez made her feel
uncomfortable and it seemed like he wanted to have sex with her.
Within
a couple of weeks, Anna confided in Yesenia about Gonzalez’ behavior, but she
did not tell her parents or anyone else.
She especially feared reprisals from Lizeth. The day after Anna told Yesenia what Gonzalez
had been doing, Yesenia told Lizeth.
Lizeth purchased two video cameras and placed one in the living room and
the other in the kitchen. She used the
cameras for about two weeks and reviewed the recordings every night.
On
April 15, the video captured Gonzalez hugging and kissing Anna while both of
them were alone in the kitchen. Gonzalez
also held up two fingers, pointed at Anna and then himself, and nodded his
head. Anna thought this meant Gonzalez
“wanted to do something with [her].†He
had made these gestures before, but only when other people were not around.
After
Lizeth saw the video, she was very upset and decided to leave Gonzalez. She blamed him and Anna for what had
happened. On April 28, Lizeth went to a
help center and showed them the video.
Someone from the center called the police and Gonzalez was arrested
later that day.
Gonzalez
testified at trial. He admitted touching
Anna, but claimed he was just “fooling around†and did not touch her with any
lewd intent. He acknowledged the
accuracy of the video recording. He also
testified he gave Anna a hug on April 26 while she was at the kitchen
sink.
DISCUSSION
The
information alleged two counts of section 288, subdivision (a). Count 1 described the alleged lewd act as
“the first time.†Count 2 referred to
the lewd act as “the last time.†The
prosecutor argued the first time occurred when Gonzalez first hugged Anna from
behind and the last time occurred when he hugged her in the kitchen.
The
court instructed the jury with CALCRIM No. 1110, which, in
pertinent part, instructs the jury
that in order to find a defendant guilty of violating section
288, subdivision (a), it must find (1) the “defendant willfully touched any
part of a child’s body, either on the bare skin or through the clothing[,]†and
“defendant committed the act with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of himself or the child.â€
Gonzalez
contends the prosecution failed to prove lewd intent with either of the alleged
improper acts, and he argues under no plausible scenario could the alleged acts
have occurred within the time period specified.
We disagree.
“In
assessing a sufficiency-of-evidence argument on appeal, we review the entire
record in the light most favorable to the prevailing party to determine whether
it shows evidence that is reasonable, credible and of solid value from which a
rational trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citations.] We draw all reasonable inferences in support
of the judgment. [Citation.]†(People
v. Wader (1993) 5 Cal.4th 610, 640.)
“Before the judgment of the trial court can be set aside for
the insufficiency of the evidence, it must clearly appear that on no hypothesis
whatever is there sufficient substantial evidence to support the verdict of the
jury. [Citation.] [¶] As stated in
(1965) 62 Cal.2d 692, 702, ‘If the circumstances reasonably justify the trier
of fact’s findings, the opinion of the reviewing court that the circumstances
might also be reasonably reconciled with a contrary finding does not warrant a
reversal of the judgment.’†(
423, 429.)
Anna
testified she had no problems with Gonzalez before she turned 13. After her 13th birthday, she noticed a change
in Gonzalez’ behavior toward her. He
started to notice how she dressed for family parties. She said he “would check [her] out, or
whistle.†Anna said this did not bother
her, but she was bothered when Gonzalez started to hug her, whisper in her ear,
and suggest they be alone together in her bedroom. Then, in early April, Gonzalez came up behind
Anna, grabbed and hugged her to his body, which made her feel “weird†and
surprised. He hugged her in the same way
a couple of times in the same week and on other occasions before she told Yesenia
what had been happening. It was this
type of behavior that was caught on videotape on April 15.
Despite
the vagaries of Anna’s testimony, there is nothing implausible about her
testimony. (See People v. Young (2005) 34 Cal.4th 1149, 1181 [unless
the testimony is physically impossible or inherently improbable, testimony of a
single witness is sufficient to support a conviction].) Therefore, under the applicable standard of review,
substantial evidence supports two convictions of section 288, subdivision (a).
DISPOSITION
The
judgment is affirmed.
THOMPSON,
J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
name="_ftn1" title="">[1] All further
statutory references are to the Penal Code.
