Filed 4/20/17 P. v. Arriaga CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
ADAN REYES ARRIAGA,
Defendant and Appellant.

A147207

(San Mateo County
Super. Ct. No. SC080368A)


A jury convicted defendant Adan Arriaga of four counts of lewd acts with a child under the age of 14 (Pen. Code, § 288, subd. (a)) and one count of sexual intercourse with a child under 10 years of age (id., § 288.7, subd. (a)). Defendant challenges only his conviction of the latter offense, contending it was unsupported by substantial evidence. We disagree, and we affirm.
BACKGROUND
An information filed March 14, 2014 charged defendant with 13 counts arising out of his sexual abuse of minors D. Doe and J. Doe, all counts alleging multiple victims enhancements. Prior to trial, the prosecutor dismissed nine of the charges, leaving four counts of lewd conduct on a child under the age of 14 (two counts each as to D. Doe and J. Doe), again with multiple victims enhancements. After the close of evidence, the court granted a motion by the prosecutor to amend the information to add one count of sexual intercourse involving a child 10 years of age or younger (that child being D. Doe), to conform to proof.
Following a jury trial, defendant was found guilty as charged. He was sentenced to 40 years to life in state prison.
Defendant filed a timely notice of appeal.
EVIDENCE AT TRIAL
Background
The incidents that gave rise to the charges against defendant occurred between January 1, 2012 and June 21, 2013. During that time period, D. Doe and J. Doe (who were not related) lived with their families in a two-bedroom apartment in San Mateo. D. Doe shared one bedroom with her mother (Maria), father, and younger brother; J. Doe shared the other bedroom with her mother, father, and younger brother.
Defendant (Maria’s older brother) also lived in the apartment. The living room served as his bedroom. The room was adjacent to the kitchen, and in order to access the kitchen, one had to pass through defendant’s room.
J. Doe’s parents paid Maria to watch J. Doe and her younger brother while they were at work. Occasionally, Maria would leave J. Doe, D. Doe, and their brothers alone with defendant while she ran errands. It was on those occasions that defendant sexually abused D. Doe (who was six to seven years old) and J. Doe (who was seven to eight years old).
On June 13, 2013, the San Mateo County Department of Children and Family Services received a report from J. Doe’s therapist that a man living in the same home had shown her pornographic material. Social worker Don Le and a San Mateo police officer went to the apartment that night, but defendant was not there. Le spoke with J. Doe’s father and D. Doe’s parents. D. Doe’s mother did not appear upset by the allegations against her brother. Le also spoke with D. Doe and J. Doe, but they did not report anything “of consequence.”
After Le’s visit, J. Doe’s father tried to talk to J. Doe about the allegations, but she did not want to discuss it with him. She did, however, tell her mother about the pornographic videos and how defendant touched her on the hands and legs, exposed himself, and told the girls to touch him.
D. Doe’s parents also spoke to D. Doe after Le’s visit. She denied defendant had done anything to her. Maria believed D. Doe because defendant was “her uncle and we are family.”
J. Doe’s Forensic Interviews
On June 21, 2013 and September 4, 2015, J. Doe was interviewed at the Keller Center, a San Mateo facility for, among other things, forensic interviews of children who were the suspected victims of sexual abuse.
During the June 2013 interview, J. Doe told the interviewer that defendant showed her and D. Doe movies of naked men and women in which the men put the part where they pee inside the women’s part. She also described an incident in which D. Doe came out of the bathroom with her zipper down and defendant said, “When you’re older, I want to do that to you,” referring to what the people were doing in the pornographic movie. J. Doe told the interviewer she did not want to do “it,” but defendant wanted to do “it” to D. Doe, although she did not identify what “it” was.
J. Doe reported that defendant took D. Doe’s hand and made her touch his private part and a “gooey,” milk-like substance came out.
J. Doe told the interviewer that D. Doe had shown her magazines with pictures of naked women. And she described having watched her 12-year-old cousin masturbate in front of her, an incident that it was determined happened somewhere other than the family apartment.
A video recording of J. Doe’s September 4, 2015, Keller Center interview was played for the jury. J. Doe told the interviewer the following:
During the time they lived in the apartment, defendant was inappropriate with her and D. Doe. The girls would go into the kitchen to get something to eat, and defendant would stop them and make them sit on his bed while he played videos of naked women. One time when they were in his room, he told them when they grew up he would do something with them, referring to what was going on in the videos.
Defendant started being “grosser” and J. Doe tried to tell D. Doe they should get out of there, but she ended up running out of the room by herself, leaving D. Doe alone with defendant. By “grosser,” J. Doe meant he started showing them “even worse things” and then “doing bad stuff until one day also he showed [them] his inappropriate part.” She told the interviewer he showed the girls his penis on two occasions: once was in his room; the other time, he took the girls into the bathroom and started “shaking it” until “white stuff started coming out.”
One day, D. Doe came out of the bathroom with her zipper down and defendant tried to touch her, but J. Doe would not let him and told D. Doe to zip up her pants. Asked if she saw defendant do something with D. Doe, J. Doe said he “would always go and try and get her or something” but she never saw anything happen. D. Doe never told her what happened when she was alone with defendant.
J. Doe described how defendant would grab their hands and touch their bodies, always starting with D. Doe. He would try to “touch [them] in [their] parts” but they “wouldn’t really allow him.” He never touched J. Doe in her private parts, only on her legs over her pants. Although he never touched J. Doe’s private parts, she said “actually that happened to” D. Doe.
In the interview, J. Doe described how one day, D. Doe had shown her magazines with pictures of girls. And she said that D. Doe told her not to tell her (D. Doe’s) mother what defendant was doing.
J. Doe’s Trial Testimony
During the time her family lived at the apartment, J. Doe’s parents worked in the afternoon, so Maria would meet her and D. Doe at the bus stop and they would walk back to the apartment. Initially, Maria stayed there with the girls and their younger brothers, but later on, she would leave them with defendant while she went out to run errands.
On some occasions when the children had been left in defendant’s care, the girls would walk through his room to get to the kitchen to get a snack or a drink. Defendant would stop them, either by telling them to stop or by grabbing their hands. He would then put on “gross videos” in which girls in bikinis or really short skirts, or sometimes no clothes, were dancing with boys, “kissing or being gross,” and taking the boys’ clothes off. J. Doe did not want to talk about what else the people in the movies did because it was embarrassing. Asked if she remembered telling the interviewer at the Keller Center that she saw boy parts that go pee going into the girl parts that go pee, J. Doe remembered telling her that, and she confirmed that was what she saw. Defendant played these videos for the girls four or five times. He asked them if they wanted to do that with him when they were grown up.
Defendant grabbed D. Doe more often than J. Doe, “mostly every day” when they went into the kitchen. He would have her sit on the bed while he played the “gross videos.” While D. Doe was on the bed, J. Doe would be in the kitchen or trying to open a door in the kitchen that led to the outside. On some occasions, J. Doe left D. Doe alone in the room with defendant.
While the movies were playing, defendant showed them “[h]is part” that he used for “[p]eeing.” J. Doe would cover her eyes because she did not want to see it, but defendant would tell them bad things would happen if they did not look. He asked J. Doe if she wanted to touch it and she told him “No,” but he made D. Doe touch it, grabbing her hand and making her touch it with her finger. D. Doe did not want to, but defendant had her hand in his hand and was rubbing it back and forth against his penis. D. Doe was covering her eyes with one hand and trying to resist by pulling her hand back. When defendant was showing the girls his part, he would “just leave it out” or “wiggle it.” One time, J. Doe saw “[d]roopy,” “[w]hite liquid” come out.
Sometimes when defendant made D. Doe lay on the bed, he would “go after her.” J. Doe would cover her eyes, trying not to see what he was doing. She did see him touch her legs. When defendant tried grabbing J. Doe, he touched her on her leg from her shin to her mid-thigh.
On one occasion, D. Doe came out of the bathroom with her zipper down. When defendant saw her, he said he was “going to do it” with D. Doe. He started telling J. Doe what his private part was used for, but she did not want to hear it. D. Doe lay on the bed and J. Doe got scared that something bad was going to happen to her, so she told D. Doe her zipper was down.
J. Doe never told anyone what defendant was doing because he told her not to and she was scared something would happen because he was D. Doe’s uncle. She finally told her social worker because she was scared something would happen to her and she could not stand him “doing stuff” to them.
As she did during her second Keller Center interview, J. Doe said that D. Doe had shown her magazines that had pictures of naked people in them. And she also described having watched an older cousin masturbate.
D. Doe’s Trial Testimony
During the time D. Doe and J. Doe lived in the same apartment with their families, D. Doe’s mother would usually greet the girls at the bus stop after school and they would walk home. Sometimes her mother would go out, leaving defendant to watch the children. In order to get to the kitchen, they had to pass through defendant’s room. He would play a movie of naked women while she and J. Doe were in the room or in the kitchen and he also showed them magazines with pictures of naked women.
D. Doe testified that “[a] lot of times” while they were in defendant’s bedroom, he touched her private part—the part of her body she used to “go to the bathroom”—with his penis. Asked if his penis ever went inside her private part, D. Doe answered, “Yeah.” The first time, she was sitting on the bed with her legs stretched out and he was standing in front of her. Both of them had their clothes on, and when he touched her private part with his penis it was on top of her clothes. D. Doe initially testified she did not think she was ever lying down when it happened, but she then testified that the second time it happened she thought she was lying down with her legs hanging off the side of the bed and defendant standing in front of her legs.
D. Doe recalled three interviews at the Keller Center, and acknowledged that in those interviews she never said anything about defendant having done anything to her. She also saw a therapist after defendant was arrested, and she never said anything to the therapist. Asked why she never told anyone before coming to court, she answered, “Because I didn’t want to,” and “Because I forgot and the therapist we kind of talked a little bit about it. We didn’t talk much about my uncle.” She also testified that she never told anyone about what defendant did to her because he told her not to.
Defendant’s Police Interview
On June 21, 2013, defendant was interviewed by San Mateo Police Officer Lupe Mejia. Defendant knew why the police wanted to talk to him, having heard from his sister and brother-in-law that people thought he was showing the children pornographic movies.
Although defendant initially denied having shown D. Doe and J. Doe pornography, he eventually admitted there were two times when the girls were on their way to the kitchen that they accidentally saw him masturbating to pornography. Later in the interview, defendant admitted it happened five or six times. He also claimed that he showed the girls pornographic movies because they asked him to. He denied he told the girls when they were older he would do that to him (referring to what was going on in the movies), claiming instead he told them that when they were older they would do that.
Defendant initially denied touching the girls. He eventually changed his story, however, admitting he started touching them the second time they found him watching pornography. The number of times defendant sexually abused the girls increased over the course of the interview. He initially claimed it happened one time, then “about two times, three times,” and eventually five or six times—twice when the girls were together, twice when he was alone with D. Doe, and twice when he was alone with J. Doe.
Defendant initially denied that he ever asked D. Doe to touch him, that she ever touched him, or that he ever touched her. He later admitted he tried to touch her once on her bottom while he was watching pornography. He then admitted he touched the front of her privates one time, and later admitted touching her “about two times, three times.”
Defendant initially feigned a lack of recall over whether he touched D. Doe on top of or underneath her clothes. He then admitted he touched her inside her underwear and put his finger inside her vagina “a little.” He did this two or three times, in addition to the two times he touched her on top of her clothes. He said sometimes D. Doe would also touch him.
Defendant also admitted that one or two times—later changed to two or three times—he touched the “little hole” of D. Doe’s vagina with his penis. He would tell her to lie down on the bed, and he would pull down her pants and lie on top of her, eventually ejaculating on her bottom. Using his hands, he demonstrated how he rubbed his penis against the entrance to D. Doe’s vagina. Defendant claimed that when he did this to her, D. Doe would tell him it was okay to touch her but not put anything inside her. He denied penetrating her vagina with his penis.
Defendant also admitted that he touched J. Doe, first claiming it was only on her ribs, later saying he touched her bottom two times. He then admitted “[a]bout two or three times” he touched her vagina on the outside of her clothes, rubbing her for about one minute.
Defendant also told the officer that J. Doe had asked if she could touch his penis, and he told her she could and then showed her how to do it. He admitted she touched his penis multiple times.
Defendant told the girls not to tell because their parents would hit them or they would tell the police who would take him away.
Expert Witness Miriam Wolf
Miriam Wolf testified as an expert in child sexual abuse accommodation syndrome (CSAAS) and forensic interviewing. She described five different characteristics of CSAAS, the first being secrecy. Children that have been the victim of sexual abuse often keep it secret, sometimes for lengthy periods of time. Abusers often make active threats about negative things that will happen if the child discloses the abuse, which instills fear in the child, or they send more benign “messages” to the child, such as, “ ‘People might not believe you.’ ”
The second characteristic of CSAAS is helplessness. Typically, the abuser is an adult and the victim a child, which leads to a developmental gap in the understanding of the encounter and the consequences of engaging in the behavior together. And if the child believes he or she cannot tell a parent, teacher, or other trusted adult, the child is left on his or her own.
The third characteristic is entrapment and accommodation. Because the child is trapped in the situation and unable to tell an adult, he or she develops coping mechanisms, such as depression, anxiety, or withdrawing. Others work very hard to appear fine on the outside and not think about the sexual abuse. There is an expectation that children who are being abused will show outward signs of distress, especially when telling about the abuse, but instead they are often flat in their reporting with a disconnect between their demeanor and the seriousness of what they are talking about.
The fourth characteristic is delayed, conflicted, or unconvincing disclosure. Sexually abused children often delay reporting the abuse and do not report all of the details at once, often telling “bits and pieces” in incremental disclosure. The child will often make an initial disclosure of some information, and may or may not disclose more depending on whether the child feels believed. The child may also report the parts that are easier to talk about and not disclose other parts that are harder to talk about.
The final characteristic is retraction, or the likelihood that a child will take back what he or she said. After reporting the abuse, the child often sees consequences such as someone getting upset with or questioning him or her, doubting that he or she is telling the truth, or a loved one getting arrested. Because of such consequences, the child often recants.
THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE CONVICTION
Defendant contends there was insufficient evidence to support his conviction for sexual intercourse with a child 10 years old or younger, in violation of Penal Code section 288.7, subdivision (a). A violation of that statute consists of the following elements: “(1) The defendant engaged in a[n] act of sexual intercourse . . . with the victim; (2) when the defendant did so, the victim was 10 years of age or younger; and (3) at the time of the act, the defendant was at least 18 years old.” (People v. Mendoza (2015) 240 Cal.App.4th 72, 79; see also CALCRIM No. 1127.) There is no dispute that D. Doe was 10 years of age or younger and that defendant was at least 18 years of age. Thus, the only question is whether there is substantial evidence defendant engaged in an act of sexual intercourse with D. Doe.
The legal principles applicable to defendant’s contention are settled: “Our review of any claim of insufficiency of the evidence is limited. ‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” [Citation.]’ ” (People v. Veale (2008) 160 Cal.App.4th 40, 45.) Applying that standard to the record here, we conclude reversal is unwarranted.
“Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis.” (People v. Mendoza, supra, 240 Cal.App.4th at p. 79.) “Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.” (People v. Karsai (1982) 131 Cal.App.3d 224, 232, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8; accord, People v. Dunn (2012) 205 Cal.App.4th 1086, 1097 [conviction under Penal Code section 288.7, subdivision (a), “require[s] penetration of [victim’s] labia majora, not her vagina”]; People v. Quintana (2001) 89 Cal.App.4th 1362, 1371 [“contact with . . . the other genitalia inside the exterior of the labia majora constitutes ‘sexual penetration’ ”].) The record contains substantial evidence that defendant engaged in sexual intercourse with D. Doe.
First, and most obviously, D. Doe answered affirmatively when asked if defendant ever put his private part inside her private part. Defendant claims this testimony was “critical” to his conviction but that the testimony was unreliable or, as he labels it, “uncorroborated and contradictory” and “impossible.” We reject defendant’s premise that but for D. Doe’s testimony he would have been acquitted of raping a child. This is so because defendant’s confession alone was sufficient to support the jury’s verdict.
In his interview with Officer Mejia, defendant denied he put his penis in D. Doe’s vagina. But even assuming his claim was credible—and the jury could easily have concluded it was not—that did not end the inquiry. The video recording of his confession (the relevant portions of which we have reviewed) establishes sufficient evidence of sexual intercourse as defined by the above-cited authorities. Defendant admitted he pulled D. Doe’s pants down, laid on top of her while she was lying on her back with her legs spread apart, and touched her “little hole” with his penis. He then used his hands to demonstrate to Officer Mejia how he rubbed his penis between her legs and against the entrance to her vagina. That visual and the accompanying confession were evidence from which the jury could have found labial penetration at the very least, and thus sexual intercourse.
Beyond that, D. Doe’s testimony corroborated what defendant admitted. The reliability of her testimony was a question for the jury (People v. Allen (1985) 165 Cal.App.3d 616, 623; CALCRIM No. 226), and we cannot agree with defendant that “any reasonable person would have doubts about the quality and believability of [D. Doe’s] testimony, and would be shaken to know it was sufficient to support [defendant’s] conviction for rape and a 25-years-to-life sentence.” As to it being uncorroborated and contradictory, it was corroborated by defendant and it was not contradicted by J. Doe on the critical issue of sexual intercourse. As to it being “impossible” because D. Doe described sitting up and being fully clothed when defendant sexually assaulted her, defendant’s confession eliminated any doubt that it was possible since he admitted he pulled her pants down and laid between her spread legs with his erect penis touching her “little hole.”
DISPOSITION
The judgment of conviction is affirmed.
 

_________________________
Richman, Acting P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.

























A147207; P. v. Arriaga