P.v . Torres

Filed 11/30/05 P.v . Torres CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. JUAN R. TORRES, Defendant and Appellant.

B179693 (Los Angeles County Super. Ct. No. NA061242)

APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge. Affirmed.

Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.

Juan R. Torres appeals from judgment entered following a court trial in which he was convicted of committing a lewd act with a child (Pen. Code, § 288, subd. (a)), attempted lewd act with a child (Pen. Code, §§ 664/288, subd. (a)) and two misdemeanor counts of annoying or molesting a child (Pen. Code, § 647.6, subd. (a).) He was sentenced to prison for a total of 11 years and makes numerous claims of error. For reasons explained in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On May 3, 2004, 13-year-old Edith P., her cousin, and her sister were playing tag on the sidewalk near Pine Street in Long Beach, when appellant approached her and extended both arms out towards her hips. He was approximately six inches from her and said, “I like chunky girls, and I like to do this to the back.” At trial, Edith demonstrated with both arms extended, making a “thrusting motion” with her body. Edith was “scared” and “mad.” Edith told her mother and her mother slapped appellant and called the police. A short time later, police arrived and Edith told them what happened. Previously, Edith had seen appellant. “He used to always blow kisses at [her] and say . . . you’re pretty and all that stuff.” He had also done this to her little sister.

Carlos P. saw his mother slap appellant. When appellant crossed the street, Carlos, his two friends and little brother followed him, so they could see where he was going because the police had been called. While the boys followed appellant, he turned around and “took out his private and started peeing, and he was playing with it.” He “started wiggling it and like shaking it and everything.” Appellant looked at him when he was doing this; he did not put it away quickly. Carlos saw appellant try to grab his sister and heard him say, “I like to touch fat girls like you.”

Edgar M. was playing with his brother Carlos and saw appellant try to hug his sister and heard him say, “I like fat girls.” Edgar and Carlos followed appellant and he started “peeing” and then “he was playing with his dick.”

Ten-year-old Ashley J. lived across the street from Edith. On May 3, when she saw Edith talking to police officers, it occurred to her that she should also tell the police officers what happened to her. A day or two before, Ashley was buying corn from a vendor on the street, when appellant walked up to her and asked how she was doing. He tried “to stick his hands on [her] shirt. So [Ashley] pushed away from him. So when he tried to touch [her], [she] turn[ed] around, and he tried to grab her.” They were standing side by side and appellant tried to put his hands inside her shirt on her bare skin on her chest. When he stuck his hands in her shirt, she pushed him away from her. When she got some distance away from appellant, “he grabbed [her] bottom” over her clothes. Ashley pushed appellant away from her and went in the house. She did not tell her parents because she was “scared” she “would be in trouble.”

Appellant testified in his own defense that he knew Edith P. as they both lived in the same neighborhood. On or about May 3, he saw Edith playing in front of her house. He did not attempt to touch her, did not talk to her or make any gesture to her. He never blew kisses to her. He never said anything to her like, “I like chunky girls.” Appellant testified that Edith’s mother hated him. She worked at a bar as a drink hostess and he had declined her invitation to drink with her and have sex for money. That was why “she got angry.” He knew Ashley’s mother, “because she does drugs.” The mother would ask him for money, and he would give her money. He had never grabbed Ashley or put his hand into or on her shirt. Appellant testified that Ashley grabbed him and took him over to get ice cream cones and a day later had gotten angry at him because he did not give her money as she had asked. He did not know Carlos or Edgar and had never urinated in front of them or removed his penis from his pants in front of them. On cross-examination, appellant testified that the girls would do “strip tease dancing . . . how they dance at the topless places” up and down the street. Appellant demonstrated in court how the girls moved, “like this and move, and they move the skirt, and they do it like this. They put their hands on their tits. They dance different ways” in front of his house. Appellant testified they pulled up their skirts and wore “sexy underwear.” Appellant claimed when the girls were testifying in court they were “do[ing it] with their hands like that.” He thought what they were doing in court was “sexy.”[1]

In finding appellant guilty of all charges, the court noted that the testimony it heard from the two female victims was very credible, clear and unequivocal. The court observed the witnesses who testified were “not developed young ladies. They were children.” The court found it was clear that appellant’s actions were lewd acts within the meaning of the law and the acts were meant to arouse appellant. The court observed appellant’s testimony was very strange; he denied that he committed any of the acts but then went on to describe the two little girls walking down the street practicing strip moves. Appellant also described them making certain physical movements with their breasts and their hands, which he claimed they did in the courtroom, which the court noted “which absolutely did not occur.” The court found appellant’s testimony, “incredulous, incredible and unbelievable . . . it pictures a distorted mind who believes that young little girls are coming onto him and are sexually motivated towards him, because that’s basically what his testimony was about.” The court further observed that appellant testified, “which is further reflection on his intent, that they wore sexy underwear. The intent with which these kinds of acts are committed can be found by a defendant’s statement. That comes outside the corpus delicti rule, and in this case . . . his testimony supplies the intent to arouse one’s self without any doubt.” Additionally, the court found the “two young boys who testified . . . were very bright young little boys and very credible, unlike the defendant. . . .”

DISCUSSION

I

Appellant contends his two felony convictions must be reversed because the court expressly relied upon his extrajudicial statement and demonstrative conduct to find lewd and lascivious intent in violation of the corpus delicti rule. He claims the court’s reliance on Edith’s testimony that appellant reached toward her hips, that after she moved away he said, “I like chunky girls, and I like to do this to the back” and that he thrust his lower body forward violated the rule. He also claims reliance on appellant’s trial testimony violates the rule.

“In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself--i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.) “[T]he modicum of necessary independent evidence of the corpus delicti . . . is not great. The independent evidence may be circumstantial, and need only be ‘a slight or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statements may be considered to strengthen the case on all issues. [Citations.]” (Id. at 1181.)

Appellant’s contention is without merit. While the corpus delecti rule extends to a preoffense statement of later intent, it does not extend to a statement that is part of the crime itself. “A statement to the victim of current intent can itself supply the corpus delicti.” (People v. Carpenter (1997) 15 Cal.4th 312, 394.) Appellant’s statements that he liked “chunky girls,” liked “to do this to the back” and his thrusting demonstration occurred during the attempted lewd act with Edith and were part of the crime itself.

Further, the record does not reflect that the trial court relied exclusively upon appellant’s extrajudicial statements to supply evidence of his intent. The trial court found circumstantial evidence of his intent in his behavior. Additionally, the court noted that appellant’s trial testimony was evidence of his lewd intent, and that appellant’s trial testimony fell outside the corpus delicti rule. “[A] defendant who chooses to testify is just as competent to establish the corpus delicti as any other witness. [Citations.]” (People v. Ditson (1962) 57 Cal.2d 415, 445-446.)

II

Appellant contends that aside from his extrajudicial statements there is insufficient evidence of lewd intent and his convictions must be reversed. Having found competent evidence to establish the corpus delicti, above, we disagree. “[O]nce the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]” (People v. Alvarez, supra, 27 Cal.4th 1161, 1171.)

To the extent appellant argues that the evidence is susceptible to different interpretations, “‘[i]n reviewing [a claim regarding] the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] “[T]he court must 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.] We “ ‘ presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’”‘ [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 690.) Applying this standard, appellant’s claim fails.

III

Appellant claims his sentence must be modified to reflect a reduction to the middle term on the principal offense because there was no substantial evidence of the single aggravating factor cited by the sentencing court justifying the upper term. In sentencing appellant in count 1, the court stated, “The reason I’m choosing the high term is because of the fact that the victim was particularly vulnerable; a very young child who was caught out on the street by this defendant and subjected to lewd acts by him.”

In addition to the fact that appellant waived this claim by not objecting to the use of this circumstance to impose the upper term, (see People v. Scott (1994) 9 Cal. 4th 331, 353) his contention fails on the merits. An aggravated sentence due to “ ‘particular vulnerability,’ where vulnerability is based solely on age, is improper when age is an element of the offense. [Citations.] However, ‘particular vulnerability’ is determined in light of the ‘total milieu in which the commission of the crime occurred . . . .’ [Citation.]” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694.) “[A] victim’s extremely young age together with other circumstances like the time and location of the offense can establish ‘particular vulnerability’ as an aggravating factor.” (Ibid.) Here, the facts support a finding of particular vulnerability. Ashley was only ten years old and too frightened to tell her parents of the molestation. She was alone on the street buying corn from a street vendor. Appellant stood next to her, close enough, so he could put his hand under her shirt and grab her bottom as she tried to get away from him.

IV

Appellant contends and respondent agrees that imposition of consecutive terms in counts 3 and 4 violated Penal Code section 654. Penal Code section 654, subdivision (a), provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision . . . .” The purpose of the statute is “to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) Although Penal Code section 654 by its terms bars only multiple punishment for a single act violating more than one statute, it has long been interpreted also to preclude multiple punishment for more than one violation of a single Penal Code section, if the violations all arise out of a single criminal act. (See Wilkoff v. Superior Court (1985) 38 Cal. 3d 345, 349, 353.) The act of “wiggling” his penis in the presence of the two young boys arose out of a single criminal act and multiple punishment is precluded.[2]

DISPOSITION

The sentence in count 4 is stayed and in all other respects the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

HASTINGS, Acting P.J.

We so concur:

CURRY, J.

WILLHITE, J.

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[1] Appellant demonstrated the witness’s movements and it was described as “moving his hands in a juggling manner.”

[2] In a notice dated April 4, 2005, appellant withdrew his claim regarding custody credits.