Filed
4/8/13 P. v. Zavala CA5
NOT
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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ALEJANDRO GONZALEZ ZAVALA,
Defendant and
Appellant.
F063418
(Tulare
Super. Ct. No. VCF243691)
APPEAL from
a judgment of the Superior Court of
County. Valeriano Saucedo, Judge.
J. Peter
Axelrod, 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
Catherine Tennant Nieto, Deputy Attorneys General for Plaintiff and Respondent.
-ooOoo-
Alejandro
Gonzalez Zavala was convicted of 17 counts of sexually abusing the three minor
children of his girlfriend, whom we will refer to as mother.
there were multiple victims within the meaning of Penal Code section 667.61,
subdivision (b).
title="">[2] He was sentenced to a total indeterminate
term of 255 years to life.
He argues the trial court erred in
excluding evidence of his lack of criminal
record, there was insufficient evidence that four of the counts occurred in
California, and he received ineffective assistance of counsel when trial
counsel failed to comply with Evidence Code section 782, the Rape Shield Law,
which prevented introduction of a prior molestation suffered by one of the
victims. We reject each of these
arguments.
One of Zavala’s arguments does have
merit requiring reversal of the conviction on one count. Prior to trial, the trial court ruled that
the interview of two of the victims, M and B, conducted by the Child Abuse
Response Team (the CART interviews) were admissible pursuant to Evidence Code
section 1360. This section permits
introduction of a statement made before trial by a victim under the age of 12
describing any act of child abuse performed
on the child. Zavala argues he
received ineffective assistance of counsel when trial counsel failed to object
to a portion of the interview of M that described an act of sodomy committed on
B. We conclude trial counsel was
ineffective for failing to object to this portion of the interview, and Zavala
was prejudiced by the error because the remaining evidence on this count was
insufficient to permit the jury to infer that Zavala sodomized B. Accordingly, the conviction for violating
section 288.7, subdivision (a) (sodomy with a child who is 10 years of age or
younger) as alleged in count 17 must be reversed.
First Amended Information
The first amended information
contained a total of seventeen counts alleging Zavala sexually abused E, M, and
B. The charges included violations of
section 288, subdivision (a) (lewd and lascivious acts on a child under the age
of 14), section 288, subdivision (b)(1) (lewd and lascivious acts on a child
under the age of 14 by force), section 288.7, subdivision (a) (sexual
intercourse or sodomy with a child 10 years of age or younger), and section
288.7, subdivision (b) (oral copulation with a child 10 years of age or
younger).
Specifically, the information
included four counts alleging E was the victim of violations of section 288,
subdivision (a), seven counts alleging M was the victim of violations of
section 288, subdivision (a), two counts alleging M was the victim of
violations of section 288.7, subdivision (a), one count alleging M was the
victim of a violation of section 288.7, subdivision (b), one count alleging B
was the victim of a violation of section 288, subdivision (a), and one count
alleging B was the victim of a violation of section 288.7, subdivision
(a). Each count alleging that Zavala
violated section 288, subdivisions (a) or (b)(1) included a special allegation
that there were multiple victims within the meaning of section 667.61,
subdivision (b).
Testimony
The first victim to testify was E,
who was 14 at the time of trial and had just started the eighth grade. At the time of the abuse, she lived with her
mother, her two sisters, and a brother. Her mother’s boyfriend, Zavala, also lived in
the mobile home.
When E was 13, Zavala touched her
in a manner that made her uncomfortable.
The first time Zavala touched E on her thigh while she was in her
room. The touching expanded to other
areas. The two were in Zavala’s truck
the first time Zavala touched E’s breasts.
While Zavala was driving he reached over to E and put his hand under her
shirt and fondled her breast. When the
truck stopped, Zavala unbuckled E’s pants and fondled her vaginal area. Zavala told E that she should not tell anyone
what had occurred.
On a different occasion Zavala
touched E’s breasts again. This incident
occurred in the room Zavala shared with mother.
Zavala touched E’s breast over her shirt on that occasion.
Zavala also touched E’s genitalia
on different occasions. On one occasion
the family had gone to a hotel in Porterville.
E’s sisters, M and B, were also present.
The children were watching television while E’s mother was in the
shower. Zavala was lying on the bed with
E when he put his hand down E’s pants.
On cross-examination, E remembered
an incident where Zavala was teaching her how to drive his truck. E sat on his lap. While E was driving, Zavala put his hands on
her vaginal area.
E never discussed these incidents
with her sisters.
Zavala was confronted when E told
her grandmother about the incidents. He
denied the allegations, and E’s mother believed Zavala. E then reported the matter to someone at
school and the police were called. The
investigating officers then asked E to make a phone call to Zavala to discuss
the incidents. During the phone call,
Zavala told E he would not touch her again.
Tulare County Deputy Sheriff
Beatriz Reveles was present during the pretext phone call E made to
Zavala. Both Zavala and E spoke in
Spanish during the call. Reveles, who is
fluent in Spanish, related that E told Zavala she was not going to return home
because she did not want him to touch her anymore. Zavala promised he would not touch her again
and told her to come home. E stated that
Zavala touched her while they were driving to get the car fixed, and Zavala
stated it was just that one time, and he would not do it again. When E stated a friend recommended she call
the police, Zavala stated again he would not touch her again, and she should
come home. Neither E nor Zavala
explained what they meant by touching during the conversation.
B was seven at the time of trial
and in the second grade. She had a
difficult time testifying, but related that Zavala touched her in her vaginal
area on more than one occasion. She
discussed these incidents with E and M.
M was eight at the time of trial
and in the third grade. She also had
difficulty testifying, but she related that Zavala touched her on more than one
occasion while they were in Colorado.
She also testified that Zavala touched her private part while they lived
with her grandparents in California on more than one occasion. On each occasion they were in the room Zavala
shared with mother when this occurred.
Zavala told M to keep the touching a secret.
M also saw Zavala touch B in the
car. Zavala, mother, M, and B drove to
the store. When mother was in the store,
Zavala told B to sit on his lap. M
initially stated she could not recall where Zavala touched B. She was able, however, to circle on a picture
the part of Zavala’s body that touched B.
At the time, Zavala had his zipper pulled down. She also identified which part of B’s body
that Zavala touched by circling the area on a picture, and referred to it as
B’s bottom. B had her pants off at the
time. The same thing happened to M when
they were in Colorado. Finally, she
related that Zavala had touched her front private area with his private part
while they resided in California. Zavala
also made M touch his private part with her hand.
Margie Jessen, a forensic nurse,
was unable to examine B because she was upset and uncooperative. Jessen was able to examine M. The vaginal exam was unremarkable. Jessen did find a laceration in the perianal
area (the skin between the vagina and the anus). The injury was in the process of healing, and
appeared to be fairly recent, but it was not possible to determine exactly when
the injury occurred. Jessen could not
opine on what may have caused the injury.
Zavala testified in his own
defense. He denied any wrongdoing, and
asserted the allegations must be false because there were always several adults
present at the mobile home, and thus someone would have seen him had he abused the
children.
Interviews
In addition to the testimony of the
children, the CART interviews of M and B were played for the jury.
M initially denied that Zavala did
anything to hurt her. She began her
disclosure by admitting Zavala would kiss her on the mouth with his mouth open,
and he would put his tongue in her mouth.
She then admitted Zavala would touch her vaginal area with his hands and
move his hand around. M estimated Zavala
had done that to her more than 10 times.
M told Zavala to stop, but he wouldn’t.
He has also touched her vaginal area with his penis “hundreds of times.â€
When they were in Colorado, Zavala
sodomized M. M saw blood on her panties
and on toilet paper she used after Zavala did this. Her mother saw the blood on her panties and M
told her mother what occurred. Her
mother then returned to California.
Zavala also licked M’s breasts “a
lot,†licked her vaginal area about 10 times, and touched her breasts, but only
while in Colorado. Zavala also made M
orally copulate him. M threw up after
that occurred. Zavala made her copulate
him about 10 times in California, and 20 times in Colorado.
M also saw Zavala sodomize B.
In her interview, B also related
the living arrangements, and stated that Zavala tried to touch her. However, B was unable or unwilling to
describe details of what occurred.
Verdict and Sentencing
The jury found Zavala guilty as
charged, and found each special allegation true. The trial court stayed the sentence on two
counts pursuant to section 654, and imposed the sentence on each remaining count
consecutively for a total indeterminate term of 255 years to life.
I.
Exclusion of
Evidence
During his testimony, defense
counsel asked Zavala if he had any prior felony convictions. The trial court sustained the prosecution’s
objection. Zavala argues the trial
court’s ruling was erroneous because his lack of prior convictions was relevant
to prove his good character, and the evidence was not precluded by Evidence
Code section 1102.
Evidence Code section 1101,
subdivision (a) provides that “evidence of a person’s character or a trait of
his or her character†is not admissible when offered to prove that person acted
in a specific manner on a specified occasion.
This section, however, is subject to certain exceptions.
The exception on which Zavala
relies is found in Evidence Code section 1102, which provides that in a
criminal action, “evidence of the defendant’s character or a trait of his
character in the form of an opinion or evidence of his reputation†is
admissible if the evidence is offered by the defendant to prove he acted in
conformity with this character trait (subd. (a)), or offered by the prosecution
to rebut the defendant’s evidence (subd. (b)).
Zavala recognizes that by its
terms, Evidence Code section 1102 is limited to opinions and evidence of
reputation. Implicitly, he concedes his
lack of felony convictions is not opinion evidence or evidence of his
reputation. Nonetheless, he argues this
limitation on character evidence was abrogated when the voters passed the
“Right to Truth-in-Evidence†provision contained in Proposition 8. This provision, found in article I, section
28(f)(2) of the California Constitution, states
“Except as provided
by statute hereafter enacted by a two-thirds vote of the membership in each
house of the Legislature, relevant evidence shall not be excluded in any
criminal proceeding, including pretrial and post conviction motions and
hearings, or in any trial or hearing of a juvenile for a
juvenile or adult court. Nothing in this
section shall affect any existing statutory rule of evidence relating to
privilege or hearsay, or Evidence Code section 352, 782 or 1103. Nothing in this section shall affect any
existing statutory or constitutional right of the press.â€
Zavala’s argument was rejected in People
v. Felix (1999) 70 Cal.App.4th 426, 432 (Felix). In
evidence that the defendant had suffered a prior conviction to rebut evidence
defendant presented pursuant to Evidence Code section 1102. The prosecution argued that even though the
prior conviction was not an opinion or evidence of reputation, this limitation
was abrogated by Proposition 8’s “Right to Truth-in-Evidence†provision. The appellate court rejected this contention
and explained that Evidence Code section 1101, 1102, and 1103 remain “viable
and exclude[] relevant character evidence except as specified†therein. (Felix
at p. 432.)
Zavala unsuccessfully seeks to distinguish Felix by asserting the issue in Felix
was the admission of a prior conviction, while he sought to introduce evidence
that he had not suffered a prior
conviction. The “distinction†provides
no relief to appellant. Each situation
involves seeking to introduce evidence of prior conduct – either past
convictions or absence of past convictions.
Neither situation is evidence of reputation or opinion evidence. Accordingly, Zavala is subject to the rule
stated in Felix, which we agree is
the proper resolution of this argument.
Therefore, the trial court did not err in excluding the evidence of
Zavala’s no felony conviction history.
Since there was no error, it is not necessary to address Zavala’s
contentions that exclusion of the evidence resulted in a denial of his right to
due process, or that he suffered reversible prejudice by the ruling. We merely note the exclusion of this evidence
could not possibly have deprived Zavala of any constitutional right, nor did
the exclusion cause him any discernible prejudice. The jury heard each witness testify, heard
Zavala deny the accusations, and rendered a verdict finding him guilty of every
charge. Simply hearing that Zavala had
not been convicted of a felony in the past would have had little or no effect
in the jury’s deliberations. After all,
simply because one had not previously been convicted of a felony does not mean
or suggest that one has not committed a crime in the past, or is not guilty of
the charged crimes.
II.
Ineffective
Assistance of Counsel – Admission of Evidence
In count 17, Zavala was convicted
of violating section 288.7, subdivision (a), engaging in intercourse or sodomy
with a child. The victim in this count
was B.
B did not testify to an act of
intercourse or sodomy at trial, nor in the CART interview. Nor did either M or E testify to an act of
intercourse or sodomy between B and Zavala.
The only evidence to support this
count came from M’s CART interview, where she told the interviewer that she had
observed Zavala sodomize B. The issue is
whether M’s CART interview was admissible to prove a crime was committed
against B. Zavala’s attorney did not
object to this portion of M’s CART interview.
Consequently, Zavala frames his argument as one of ineffective
assistance of counsel, asserting that the evidence should have been excluded.
A defendant is entitled to a new
trial if he received ineffective assistance of counsel at trial. (People
v. Lagunas (1994) 8 Cal.4th 1030,
1036.) “Establishing a claim of
ineffective assistance of counsel requires the defendant to demonstrate (1)
counsel’s performance was deficient in that it fell below an objective standard
of reasonableness under prevailing professional norms, and (2) counsel’s
deficient representation prejudiced the defendant, i.e., there is a ‘reasonable
probability’ that, but for counsel’s failings, defendant would have obtained a
more favorable result. [Citations.] A ‘reasonable probability’ is one that is
enough to undermine confidence in the outcome.
[Citations.] [¶] Our review is deferential; we make every
effort to avoid the distorting effects of hindsight and to evaluate counsel’s
conduct from counsel’s perspective at the time.
[Citation.] A court must indulge
a strong presumption that counsel’s acts were within the wide range of
reasonable professional assistance.
[Citation.] … Nevertheless, deference is not abdication; it cannot
shield counsel’s performance from meaningful scrutiny or automatically validate
challenged acts and omissions.
[Citation.]†(
In this case, the only issue is
whether counsel should have objected to this portion of the CART
interview. If the objection would have
been sustained, then trial counsel was ineffective because M’s statement was the
only evidence to support this count.
We turn to the question of whether
this portion of M’s statement should have been excluded had a proper objection
been made. Prior to trial, the
prosecution made a motion to play the interview relying on Evidence Code
section 1360 as authority for the admission of the CART interview. The trial court granted the motion.
Evidence Code section 1360,
subdivision (a) states that in a criminal case involving child abuse or
neglect, “a statement made by the victim when under the age of 12 describing any
act of child abuse or neglect performed with or on the child by another†is
admissible notwithstanding the hearsay rule, subject to certain conditions that
are not at issue.
Zavala focuses on the portion of
this subdivision that limits out of court statements to an “an act of child
abuse … performed with or on the child.â€
(Evid. Code, § 1360, subd. (a).)
In M’s statement, she was relaying information about child abuse that
was performed on B. Because, according
to Zavala, Evidence Code section 1360 limits such statements to acts of abuse
performed on the child giving the statement, the trial court would have been
required to exclude the portion of M’s CART interview that described Zavala
sodomizing B had a proper objection been made.
The People concede that Evidence
Code section 1360 permits only statements by the victim that describe abuse
done to the victim. However, the People
argue reversal was not required because there was no prejudice and the failure
to object was a tactical choice.
The People argue that counsel was not
ineffective. The People’s argument,
reduced to its essence, is that because Zavala defended against the charges by
asserting the children were fabricating the incidents, there was no need to
object to the portion of the CART interview wherein M described Zavala
sodomizing B. According to the People,
this was a valid tactical choice made by trial counsel. We reject this view.
We agree that Zavala’s defense was predicated on an assertion the
children were fabricating the charges against him. Nonetheless, there can be no justification
for acceding to introduction of the only evidence submitted to prove a single
count (which carried a sentence of 25 years to life) if that evidence was objectionable. Nor is there any reason to permit evidence
that was objectionable simply because there was other evidence that supported
the count. There is no rational tactical
choice to take such a risk.
The real issue is whether there is
other evidence that supported the conviction such that the failure to object
did not cause Zavala any prejudice. We
have summarized M’s testimony on the issue above, but need to now review this
testimony in greater detail.
Consistent with her age, M was
initially a hesitant witness, not providing any details of what may have
occurred. As she testified, the
prosecutor was able to elicit additional information from her. Eventually she admitted that she observed
Zavala touch B when they were going to the store with her mother. When her mother went into the store, Zavala
told B to sit on his lap. M stated she
could not remember where Zavala touched B, and she could not remember what
happened.
When the prosecutor pressed for
more details, M remained hesitant. She
testified she could not remember what part of Zavala’s body touched B. When asked if Zavala touched B with his hand,
M said no. When asked if Zavala touched
B with another part of his body, M testified “I think something on his body.†When asked what part of Zavala’s body touched
B, M stated she forgot. She then stated
she thought she could circle the part of his body on a picture. Apparently she circled the man’s penis in the
drawing. M went on to explain that
Zavala had his pants on, but unzipped.
She then stated, “He unzipped them and he did it to [B].†When asked where Zavala put his penis, M
circled a picture of the girl’s bottom.
M also testified that B took her pants off.
In contrast, in her CART interview,
M stated she saw Zavala sodomize B.
We conclude that from this
testimony that it is not possible to conclude that Zavala penetrated B, as is
required for a sodomy conviction.
(§ 286, subd. (a); People v.
Farnam (2002) 28 Cal.4th 107, 143.)
There was no evidence of (1) trauma or bruising to B’s anus, (2) semen
in B’s rectum, or (c) testimony from either B or M that B suffered any pain
during or after the incident. (See,
generally, People v. Farnam, supra, 28
Cal.4th at pp. 143-144; People v. Adams (1993)
19 Cal.App.4th 412, 428-429; and People
v. Thomas (1986) 180 Cal.App.3d 47, 54-56.)
The lack of evidence of penetration
in M’s testimony at trial compels the conclusion that the jury relied on the
statements M made in the CART interview in finding Zavala guilty of sodomizing
B as alleged in count 17. Because the
jury relied on evidence that would have been excluded had a proper objection
been made, we are also compelled to conclude trial counsel’s omission was
prejudicial, and that Zavala received ineffective assistance of counsel on this
count. The conviction on count 17 must
be reversed.
Ineffective
Assistance of Counsel – Failure to Comply with Evidence Code section 782
The record indicates that E had
previously been sexually abused by her stepfather and an uncle while she lived
with her family in Utah. It appears the
stepfather was prosecuted and convicted for these assaults, while the uncle
fled.
Prior to trial, the prosecution
moved to exclude any evidence of these assaults. The trial court granted the motion finding,
in part, that Zavala failed to comply with the provisions of Evidence Code
section 782, the Rape Shield Law, which establishes the procedure a defendant
must follow before using the complaining witness’s prior sexual conduct to
attack his or her credibility. Zavala
argues counsel was ineffective because he failed to comply with the
requirements of the code section.
This argument must be rejected
because it is based on mere speculation.
The record reveals only that “there is some evidence that [E] was
molested by her stepfather†and an uncle, and the stepfather was incarcerated
in Utah. There is no evidence in the
record of how E was molested, or to what crime the stepfather had pled or been
convicted.
Zavala asks us to conclude the
molestation M suffered in Utah influenced her testimony in this trial. We cannot reach this conclusion because the
record is incomplete. Without knowing
what occurred in Utah, we have no evidentiary basis for comparing the two
incidents. Without this evidentiary
basis, it is impossible to draw any conclusion about whether the Utah incident
influenced M in Zavala’s trial.
It has long been a staple of
appellate practice that claims of ineffective assistance of counsel are more
likely to succeed if raised in a writ of habeas corpus. “[N]ormally a claim of ineffective assistance of counsel is
appropriately raised in a petition for writ
circumstances not reflected in the record on appeal, such as counsel’s reasons
for pursuing or not pursuing a particular trial strategy, can be brought to light
to inform the two-pronged inquiry of whether counsel’s ‘representation fell
below an objective standard of reasonableness,’ and whether ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ [Citation.]†(People
v. Snow (2003) 30 Cal.4th 43, 111.)
This is a case where information not contained in the record would have
to be presented before it is possible to determine if there is any merit to the
claim. On this record, there is no merit
to the assertion that Zavala received ineffective assistance of counsel
relative to Evidence Code section 782.
IV.
Sufficiency
of the Evidence
The testimony and CART interviews
established that Zavala, M, B, and mother went to Colorado for approximately a
two-week period during which M and B were molested. Zavala argues his conviction on counts 10,
11, 12, and 14 must be reversed because it was unclear from the testimony
whether the acts supporting these convictions occurred in California or in
Colorado.
Since “[i]t long has been established that a state will entertain
a criminal proceeding only to enforce its own criminal laws, and will not
assume authority to enforce the penal laws of other states or the federal
government through criminal prosecutions in its state courts†(People
v. Betts (2005) 34 Cal.4th 1039, 1046), Zavala may not be convicted of
crimes that occurred in Colorado. The
issue, therefore, is whether there is sufficient evidence in the record to
support the jury’s conclusion that the challenged crimes were committed in
California. In resolving this
argument, we must review the trial testimony and the CART interviews.
Our review of the sufficiency of
the evidence is deferential. We
“ ‘review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence – that
is, evidence which is reasonable, credible, and of solid value ‑ such
that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.]†(People
v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated
bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We presume the existence of every fact the
trier of fact reasonably could deduce from the evidence that supports the
judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a
witness’s credibility for that of the trier of fact. (People
v. Koontz (2002) 27 Cal.4th 1041, 1078.)
A.
against M
Zavala was convicted of violating
section 288, subdivision (a) in counts 10 and 11 by performing lewd and
lascivious acts on M. The information
described count 10 as Zavala putting his penis to the buttocks of M for the
first time, and count 11 as Zavala putting his penis to the buttocks of M for
the last time. The issue is whether
there is evidence that Zavala committed such an act in California on two
occasions.
We conclude there is substantial
evidence to support these two counts.
While M’s testimony in the CART interview seems to limit such acts to
the period of time M was in Colorado, during cross-examination by trial counsel
she stated that Zavala touched her on the back in the house, and on another
occasion Zavala touched her bottom in front of the store causing her pain. Both of these events occurred in California.
It is true that M’s testimony was
not explicitly detailed, but she was seven when she was molested, and eight
when she testified.
title="">[3] It is unreasonable to suggest a child of that
age could testify with the same clarity as an adult. The fact her testimony related to molestation
made testifying even more difficult.
(See, e.g., People v. Johnson
(2002) 28 Cal.4th 240, 242 [section 288.5, continuous sexual abuse of a minor
enacted to solve problem of children’s testimony which failed to identify with
specificity the date or place acts occurred].)
However, her references to being touched on her buttocks occurred when
she was describing acts of molestation by Zavala, and the jury could reasonably
and logically infer the acts were lewd and lascivious within the meaning of
section 288, subdivision (a).
Accordingly, there was substantial evidence to support the verdict on
these two counts.
B.
Count 12
The information alleged in count 12
that Zavala violated section 288, subdivision (b)(1) by forcing M to copulate
him. The only testimony related to this
incident was in the CART interview. In
the interview, M described an incident where Zavala “pushed†her “head all the
way in his thingy†causing her to throw up.
She stated this incident occurred in the room, and it was repeated about
10 times, always in “his room.†When
asked if it every happened anywhere else, M responded negatively. The next question the interviewer asked was
whether such an incident occurred in Colorado, and M stated it had
approximately 20 times.
It is clear that at trial and in
the CART interview that references to “his room†referred to the bedroom Zavala
shared with mother in the house in Tulare County. This location is confirmed by the fact that
in addition to the 10 times Zavala forced her to copulate him in his bedroom,
he also forced her to do so 20 times in Colorado. The only logical and rational interpretation
of this testimony was that Zavala forced M to orally copulate him numerous
times in both Tulare County and in Colorado.
Accordingly, there was substantial evidence to support the conviction of
this count.
C.
Count 14
The information alleged that Zavala
violated section 288.7, subdivision (a) by engaging in an act of intercourse or
sodomy with M while he was over 18, and M was 10 years of age or younger. The only evidence in the record to support
this count is found in the CART interview.
M provided detailed information
about acts of sodomy performed by Zavala on her while they were in
Colorado. Initially, she denied that
Zavala did so in California. However, she
consistently stated that the only individuals that went to Colorado were
Zavala, mother, M, and M’s brother. B
did not go to Colorado.
Later in the interview, M was asked
if Zavala sodomized anyone else. M
related that Zavala had done the same thing to B. When asked how she knew Zavala did that, M
stated that she was in the car with B and Zavala waiting while her mother went
shopping. While in the car waiting, M
saw Zavala sodomize B. The interviewer
asked if Zavala had also done that to her in the car, M replied yes, and stated
that it hurt her. M then explained that
Zavala put his “ ‘thingy’ in the hole where you poop.â€
Since B was not in Colorado, then
the only logical interpretation of this evidence is that this incident occurred
in California. Accordingly, there is
substantial evidence to support this count.
The
conviction for violating section 288.7, subdivision (a) as alleged in count 17
is reversed. In all other respects, the
judgment is affirmed. The matter is
remanded to the trial court to amend the abstract of judgment accordingly, and
to transmit certified copies of the amended abstract to all appropriate parties
and entities.
_____________________
Poochigian, J.
WE CONCUR:
______________________
Kane, Acting P.J.
______________________
Franson, J.
children. For the same reason we will
refer to the victims only by their first initial. No disrespect is intended.
unless otherwise stated.
