P. v. Cuello

Filed 10/16/07 P. v. Cuello 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A jury found Enrique Cuello guilty of six counts of forcible lewd acts on a child (Pen. Code,  288, subd. (b)(1)),^[1]two counts of forcible oral copulation ( 288a, subd. (c)(2)), and four counts of dissuading a victim by force or threat ( 136.1, subd. (c)(1)). The trial court imposed the upper term on forcible lewd act and forcible oral copulation counts. We affirm.

FACTS

Cuello challenges only counts 1 through 3 and 12. We limit our discussion of the facts to those counts.

Sandra G. was 16 years old at the time of trial. She first met Cuello when she was 10 years old, at the beginning of fifth grade. Cuello was her mother's boyfriend. He moved into their apartment in March of 1998. Also living in the apartment were Sandra's older sister, Maria, then 14 and her older brother, Santiago, then 12.

For the first few months after Cuello moved in he was nice. After about four months, however, he changed. He would beat their mother once or twice a week. One time, Cuello hit Santiago with a vacuum cleaner cord for being slow to follow his order to take a shower. The cord left bruises. He verbally abused Santiago and hit him on other occasions. He made Santiago kneel in pebbles for failure to make good grades.

Cuello first molested Sandra in September of 1999, when she was 10 years old. Her mother was in the hospital after having had a baby. Sandra was in her bedroom when Cuello came in and asked her to watch television with him. They sat on the couch. Cuello put his fingers inside Sandra's pants and underwear, trying to put them inside her vagina. He did not succeed, so he asked her to put on shorts. She put on shorts and returned. He began rubbing her vagina. When he was done, he told her to go to sleep and not tell anyone.

Every time Cuello molested Sandra, he told her not to tell anyone. After each time, he would say that her mother would hate her; life at the house would be worse; and he would treat her mother like "shit." Sandra took Cuello seriously when he said those things. Sandra was not afraid of Cuello, but she was afraid he would hurt the ones she loved.

One day while Sandra was in the garage, Cuello came in and put his finger in her vagina. Sandra testified that she could not remember specifically what Cuello said after he finished the act, but that he would make the same threats every time he did something to her.

DISCUSSION

I

Cuello contends his convictions on counts 1 and 2 must be reversed because there is no evidence of force, violence, duress, menace or fear.

Counts 1 and 2 charged violations of section 288, subdivision (b)(1). That subdivision provides in part: "Any person who commits a [lewd act on a child under age 14] by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony . . . ."

In reviewing the sufficiency of the evidence we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Johnson, supra, at p. 578.)

Counts 1 and 2 concern the first time Cuello molested Sandra. In count 1, Cuello put his hand inside Sandra's pants and underwear trying to penetrate her vagina. Count 2 occurred a few minutes later, after Cuello had Sandra change into shorts. Sandra did not expressly testify Cuello used any force, violence, duress, menace or fear during those molestations.

The Attorney General points to evidence that Cuello had been violent with Sandra's mother and brother; that he threatened Sandra after each time he molested her; and that he was a father figure and the only adult in the house at the time.

Cuello argues that it is unclear when his violent behavior began. He points to Sandra's testimony that at first Cuello was nice, and to Santiago's testimony that Cuello was nice for about four moths. But Cuello moved in with Sandra and her family in March of 1998. Sandra testified the molestations occurred in September of 1999, when her mother was in the hospital having a baby. A reasonable juror could conclude the molestations described in counts 1 and 2 took place well after the four-month period during which Cuello was being nice.

The evidence shows that Cuello created a pervasive atmosphere of verbal and physical violence in Sandra's household. That alone justifies the jury's finding that Cuello used duress, menace and fear to commit the acts alleged in counts 1 and 2. Cuello's convictions on counts 1 and 2 must be affirmed.

II

Cuello contends the evidence is insufficient to support convictions on counts 3 and 12, dissuading a victim by force or threat of force or violence.

Section 136.1, subdivision (c)(1), provides that it is a felony for any person to knowingly and maliciously dissuade any witness from testifying or reporting a crime by force or threat of force or violence upon a witness, victim, or any third person.

Count 3 relates to dissuading Sandra after the first two molestation incidents. Cuello admits he warned Sandra that if she told anyone he would further mistreat her mother and that her life would be a mess. Cuello argues, however, the "warning did not occur until after the molestation acts that formed the basis of count 3." But Sandra testified that Cuello warned her "every time he would finish" molesting her. The jury could reasonably conclude that includes the first time.

Cuello argues that Sandra testified she was not afraid of him. But she also testified, "I was just afraid for the fact that even if I was there or not, he was still going to hurt the ones that I loved." Threats against third persons are within the purview of section 136.1, subdivision (c)(1). Moreover, section 136.1, subdivision (d), provides in part: "The fact that no person was . . . in fact intimidated, shall be no defense against any prosecution under this section."

Nor is there merit to Cuello's argument that there is insufficient evidence to sustain the finding that he violated section 136.1, subdivision (c)(1), as alleged in count 12.

Sandra testified that after Cuello molested her in the garage she could not "recall specifically what he said to [her]." She reiterated her previous testimony, however, that Cuello warned her "every time" he molested her. The jury could reasonably conclude that Cuello gave Sandra the same warnings every time, including the time alleged in count 12. That Sandra could not remember specifically what Cuello said on that occasion, does not preclude, as a matter of law, the jury from concluding he threatened her every time.

III

Cuello contends the trial court erred in imposing the upper term of eight years each on forcible lewd act and forcible oral copulation counts without a jury trial.

Under the California determinate sentencing law as it existed at the time Cuello was sentenced, the trial court could impose the upper term only upon its finding of one or more aggravating factors. (Former  1170, subd. (b).) Recently, the United States Supreme Court held such a sentencing scheme violates the Sixth Amendment right to a jury trial to the extent it assigns to the trial court the authority to find facts that expose the defendant to the upper term. (Cunningham v. California(2006) __ U. S. __ [166 L.Ed.2d 856].) The trial court's failure to submit a sentencing factor to the jury, however, is not structural error that requires automatic reversal. (Washington v. Recuenco (2006) 548 U. S. __ [165 L.Ed.2d 466, 477].) Instead, we must determine whether the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U. S. 18, 24.)

Here the facts in aggravation considered by the trial court are: (1) The victim was particularly vulnerable. (Cal. Rules of Court, rule 4.421 (a)(3).) The victim was young and had no one to turn to because Cuello controlled every aspect of family life. She was exposed to physical and emotional abuse. (2) The manner in which the crimes were carried out indicates planning. (Id. at rule 4.421 a)(8).) Cuello manipulated the circumstances so that he could be alone with the victim and molested her at every opportunity. (3) Cuello took advantage of a position of trust or confidence. (Id.at rule 4.421 (a)(11).) Cuello was the victim's stepfather.

The only fact in mitigation the trial court found was that Cuello had no previous record. (Cal. Rules of Court, rule 4.421 (b)(1).) The court found the mitigating factor did not outweigh the aggravating factors.

There is no reasonable doubt the jury would have found each of the aggravating factors to be true. It is clear that Sandra was particularly vulnerable. The largely uncontradicted evidence showed Cuello created an atmosphere of fear and duress through his use of physical and emotional abuse of other family members. It is also clear the manner in which the crimes were carried out indicates planning. Cuello did not only molest Sandra once in a moment of weakness. He continually molested her at every opportunity. Finally, there is no doubt that Cuello took advantage of a position of trust or confidence. Whether Cuello was married to Sandra's mother or not, he acted as the children's stepfather.

This is not a close case. There is simply no doubt the jury would have found true the same aggravating factors found by the trial court. Moreover, even if the jury had found a single factor true, that would be sufficient to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Cuello argues that a single factor would not necessarily lead to the imposition of the upper term because the trial court is required to weigh the aggravating and mitigating factors. (Citing People v. Hall (1994) 8 Cal.4th 950, 957.) But given the egregious circumstances in this case, there is no reasonable doubt the trial court would have imposed the upper term based on any one of the aggravating factors.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

^[1]All statutory references are to the Penal Code unless otherwise stated.