P. v. Guerrero

Filed 5/17/06 P. v. Guerrero CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SIX

Gehovani Guerrero appeals from the judgment entered following his conviction by a jury of two counts of first degree burglary. three counts of second degree burglary of a vehicle (Pen. Code, §§ 459, 460);^[1] two counts of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); two counts of obstructing a peace officer (§ 148, subd. (a)(1)); one count of possession of burglar's tools (§ 466); one count of first degree residential robbery (§§ 211, 212.5); one count of kidnapping to commit robbery (§ 209, subd. (b)(1)); one count of lewd act upon a child, Jane Doe 1, by use of force (§ 288, subd. (b)(1); and one count of lewd act upon a child, Jane Doe 2, without use of force. (§ 288, subd. (a).) As to the count of lewd act upon a child without use of force, the jury found true an allegation that in the present case appellant had committed a lewd act upon more than one child within the meaning of section 667.61, subdivisions (b) and (e)(5). (Section 667.61 is commonly known as the " One Strike" law.) As to the count of lewd act upon a child by use of force, the jury found true an allegation that in the present case appellant had committed a lewd act upon more than one child and had used a firearm within the meaning of section 667.61, subdivisions (a), (e)(4), and (e)(5). The jury also found true allegations that, during the commission of the robbery, kidnapping, and lewd act upon a child by use of force, appellant had used a firearm within the meaning of section 12022.53, subdivision (b) The trial court found true allegations that appellant had served four prior separate prison terms (§ 667.5, subd. (b)) and had been previously twice convicted of a felony violation of Vehicle Code section 10851. (§ 666.5.) The trial court sentenced appellant to prison for 68 years to life.

Appellant contends as follows: (1) the evidence is insufficient to support his conviction for burglarizing Daniel Aguilar's vehicle (count 5) because there is no substantial evidence that the car doors were locked; (2) as to the burglary of Aguilar's vehicle, the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of vehicle tampering; (3) the evidence is insufficient to support the convictions for committing lewd acts upon Jane Doe 1 (count 12) and Jane Doe 2 (count 13) because the victims' testimony is not credible; and (4) the trial court erroneously failed to exercise discretion in sentencing him to consecutive prison terms on counts 12 and 13. We affirm.

Facts

We summarize only those facts relevant to the burglary of Daniel Aguilar's vehicle and the commission of lewd acts upon Jane Does 1 and 2.

A. Vehicular Burglary

During the evening on August 19, 2004, Aguilar parked his car in the driveway in front of his house. He could not recall whether he had locked the car doors and could not say " with absolute certainty" that they were locked. However, Aguilar testified that he " normally" locked the doors, that he " [a]lmost always" locked them, and that he locked them " on a regular basis." The car windows were closed.

Upon returning to the car the following morning, Aguilar noticed that a door was " open, slightly ajar." He also noticed that the glove box was open and that the passenger compartment had been " ransacked." Appellant's fingerprints " were on the upper edge of the driver's side window." When the police later asked appellant why his fingerprints had been found on the inside of Aguilar's burglarized car, he replied, " I do stupid things like that."

B. Lewd Acts upon Jane Does 1 and 2

At about 2:00 a.m. on September 6, 2004, M.C. was awakened by a strange noise in her bedroom. She saw two men standing next to her bed. One of the men was appellant. M.C. screamed, but she stopped screaming when she heard " some kind of noise" from a gun. Appellant asked her if her children were inside the house. M.C. responded that all three of her children were there.

Appellant left M.C.'s bedroom and went to another bedroom where the children were sleeping. He awakened M.C.'s eldest daughter, Y.J., by shaking her shoulder. He walked with Y.J. to M.C.'s bedroom.

Appellant returned to the children's bedroom and awakened M.C.'s youngest daughter, Jane Doe 2, by putting his hand inside her underwear and touching her genital area. Jane Doe 2 was eight years old. Appellant carried her to M.C.'s bedroom.

Appellant returned a third time to the children's bedroom and awakened M.C.'s middle daughter, Jane Doe 1, by touching her over her clothing in the genital area. Jane Doe 1 was 10 years old. Appellant pulled her out of the bed. She said, " Don't harm me." Appellant replied, " Let me touch you." When Jane Doe 1 ignored appellant's request, he pointed a gun at her. She was " very scared" and said, " Okay. But only one touch." Appellant put his right hand inside her underwear and touched her genital area " [b]ack and front" for " a long, long time." Appellant asked her when she " started [to] have pubic hair." Jane Doe 1 did not reply. Appellant removed his hand from her underwear and said, " When you are grown up, you'll like it this way." Appellant showed Jane Doe 1 his penis and asked her to grab it. She refused. Appellant held her right hand and made her grab his penis for a " [l]ong time." He moved her hand back and forth on his penis. Appellant then released Jane Doe 1's hand and led her back into M.C.'s bedroom.

M.C. had about $200 in her purse. Appellant took the money, but said it " was too little." Appellant retrieved M.C.'s ATM card from her purse and demanded that she accompany him to an ATM machine to withdraw money. While appellant's accomplice remained in the bedroom with the children, appellant drove M.C.'s car to an ATM machine at the Bank of America in San Gabriel. M.C. was seated in the front passenger seat.

When they arrived at the ATM machine, appellant took out a gun, pointed it at M.C., and said, " Get money for me quick." M.C. got out of the car and withdrew $600 from the ATM machine. She then reentered the car, and appellant drove her back to the house.

M.C. " dashed" into the house to see her children, who were still in the bedroom. Appellant ordered M.C. and the children to go into the bathroom. After they had complied, appellant closed the bathroom door and warned them not to come out. M.C. and the children stayed inside the bathroom until they no longer heard any noises. Upon exiting the bathroom, M.C. found that many items had been taken from the house. She also discovered that her car was missing and that her telephone line had been cut.

Appellant told the police that he and an accomplice had broken into M.C.'s house and had forced her to withdraw $600 from an ATM machine. Appellant said he had pointed a loaded handgun at M.C. while they were at the bank. Appellant also said that he and his accomplice had " gathered a bunch of property" from the house and had left in M.C.'s car. Appellant denied molesting the children. He wrote a letter to M.C. asking her to forgive him " for the harm I've caused you and your daughters." Appellant expressed " regret from all my heart having committed the worst stupidity of my miserable life against your family."

Sufficiency of the Evidence: Vehicular Burglary

Section 459 provides in relevant part: " Every person who enters any . . . vehicle as defined by the Vehicle Code, when the doors are locked, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." Appellant contends that the evidence is insufficient to support the conviction for burglarizing Daniel Aguilar's car because there is no substantial evidence that the car doors were locked.

" [W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible and of solid value - from which a reasonable trier of fact could

find . . . beyond a reasonable doubt" that Aguilar had locked the car doors. (People v. Snow (2003) 30 Cal.4th 43, 66.) We must " ' " presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' [Citation.]" (People v. Rayford (1994) 9 Cal.4th 1, 23.) " [I]t is not within our province to reweigh the evidence or redetermine issues of credibility. [Citation.]" (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) " Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Aguilar testified that he could not recall whether he had locked the car doors and that he could not say " with absolute certainty" that he had locked them. Standing alone, this testimony would be insufficient to support the burglary conviction. But Aguilar also testified that that he " normally" locked the doors, that he " [a]lmost always" locked them, and that he locked them " on a regular basis." Pursuant to In re Charles G. (1979) 95 Cal.App.3d 62, this evidence of Aguilar's habit or custom constituted substantial evidence in support of the jury's implied finding that he had locked the doors.

In Charles G. the juvenile court found true a petition alleging that the minor had burglarized a pickup truck. On the date of the offense, the victim told a school security agent that he " was not sure whether or not he had locked the vehicle." (In re Charles G., supra, 95 Cal.App.3d at p. 66.) At trial the victim testified that to the best of his knowledge the vehicle doors were locked, that it was his " normal practice" to lock them, and that he had " a habit of locking" them. (Id., at pp. 65-66.) However, he also testified that " maybe [he] didn't" lock the doors. (Id., at p. 66.) The appellate court rejected the minor's argument that the evidence was insufficient to show that the doors were locked. The court reasoned: " From that circumstantial evidence of habit, and reasonable inferences therefrom, the judge could have properly concluded beyond a reasonable doubt that the truck was locked and remained locked until [the minor] entered. There was substantial evidence to establish this necessary element of the corpus." (Id., at p. 66.)

Lesser Included Offense

Vehicle tampering in violation of Vehicle Code section 10852 is a lesser included offense of burglary of a vehicle. (People v. Mooney (1983) 145 Cal.App.3d 502, 505.) Appellant contends that, as to the burglary of Daniel Aguilar's vehicle, the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of vehicle tampering.

" [T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." (People v. Breverman (1998) 19 Cal.4th 142, 162.) " A trial court must instruct the jury sua sponte on an uncharged offense that is lesser than, and included in, a greater offense with which the defendant is charged 'only if [citation] " there is evidence" ' [citation], specifically, 'substantial evidence' [citation] ' " which, if accepted . . . , would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' [citation]. [Citations.]" (People v. Waidla (2000) 22 Cal.4th 690, 733.) " ' " Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." [Citation.]' [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) " In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight. [Citations.]" (People v. Breverman, supra, 19 Cal.4th at p. 177.) " An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense." (People v. Waidla, supra, 22 Cal.4th at p. 733.)

We conclude that the trial court did not have a duty to instruct sua sponte on vehicle tampering. In view of Aguilar's testimony that he " normally" locked the doors, that he " [a]lmost always" locked them, and that he locked them " on a regular basis," there is no substantial evidence absolving appellant from guilt of the greater offense (vehicular burglary) but not the lesser (vehicle tampering). (People v. Waidla, supra, 22 Cal.4th at p. 733.) We recognize that, because Aguilar could not recall locking the doors and was not absolutely certain that he had locked them, it is possible that he did not lock the doors. But this is speculation, and " [s]peculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.]" (People v. Mendoza (2000) 24 Cal.4th 130, 174.)

People v. Mooney, supra, 145 Cal.App.3d 502, is distinguishable. In Mooney the defendant was also convicted of burglarizing a vehicle. The appellate court concluded that the trial court had erred in failing to instruct sua sponte on vehicle tampering. But, unlike the instant case, the defendant in Mooney testified that the vehicle doors were unlocked. Here, in contrast, appellant did not testify. Indeed, appellant did not present any evidence in his defense.

Sufficiency of the Evidence: Lewd Acts upon Jane Does 1 and 2

Appellant does not contend that the testimony of Jane Does 1 and 2, if credible, is insufficient to support the convictions for lewd acts upon children. Instead, he contends that the convictions " should be reversed because no reasonable juror would have believed [their] testimony . . . ." Appellant argues that their testimony is not credible for the following reasons: (1) Because Jane Doe 2 " looked up to [Jane Doe 1] and imitated her," and because before testifying Jane Doe 2 had " talked to her mother and [Jane Doe 1] about the incident," " it was more than likely [Jane Doe 2 had] simply copied her sister's story." (2) Jane Doe 1 " testified she did not remember the incident clearly and was confused in trying to answer defense counsel's questions." (3) Jane Doe 1 " admitted practicing what she would say with her mother." (4) Jane Does 1 and 2 " did not act as if they had been molested. When the sisters initially were united with their mother in the bedroom and later exited the bathroom with her, they did not cry or ask for help, actions seemingly typical of those who have been molested or otherwise traumatized." (5) Jane Does 1 and 2 did not suffer any physical injures. (6) " Appellant was forthright in admitting his guilt . . . ; however, he did not admit to committing lewd acts." (7) Appellant's " crimes of choice" were property crimes, not lewd acts. " In this respect, [his] criminal history was replete with property crimes, not sex-related crimes."

" It is well settled in California that one witness, if believed by the jury, is sufficient to sustain a verdict." (People v. Breault (1990) 223 Cal.App.3d 125, 140.) " ' " Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" ' " (People v. Mayberry (1975) 15 Cal.3d 143, 150.)

The testimony of Jane Does 1 and 2 do not show that their testimony is physically impossible or inherently improbable. Its alleged falsity is not " apparent without resorting to inferences or deductions." (People v. Mayberry, supra, 15 Cal.3d at p. 150.)

" During hostage-type robberies in isolated locations, sexual abuse of victims is all too common. . . . 'When robbers enter the home, the scene is all too often set for other and more dreadful crimes . . . . In the home, the victims are particularly weak and vulnerable and the robber is correspondingly secure.' " (People v. Nguyen (1993) 21 Cal.App.4th 518, 532-533.) Since the jury credited the testimony of Jane Does 1 and 2, the evidence is sufficient to support the convictions for committing lewd acts upon them.

Consecutive Prison Terms

The trial court imposed consecutive prison terms on counts 12 and 13, which charged the commission of lewd acts upon Jane Does 1 and 2. The consecutive prison terms resulted in a total sentence of 40 years to life on those counts. On count 12, appellant was sentenced to prison for 25 years to life pursuant to section 667.61, subdivision (a). On count 13, he was sentenced to prison for 15 years to life pursuant to section 667.61, subdivision (b). Appellant contends that the trial court erroneously failed to exercise discretion as to whether these prison terms should run consecutively or concurrently. The parties agree that section 667.61 does not mandate the imposition of consecutive terms.

Although appellant did not object to the consecutive sentences, he argues that the waiver doctrine articulated in People v. Scott (1994) 9 Cal.4th 331, 356, does not apply where the trial court failed to exercise its sentencing discretion. (See In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1182.) Assuming without deciding that appellant is correct, we reject his contention that the trial court failed to exercise discretion.

" 'The general rule is that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]' " (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.) " 'We must indulge in every presumption to uphold a judgment, and it is defendant's burden on appeal to affirmatively demonstrate 96) 48 Cal.App.4th 1511, 1523.) Thus, there is a " normal presumption of regularity concerning the exercise of sentencing discretion." (People v. Mosley (1997) 53 Cal.App.4th 489, 497.) An appellate court will not conclude that the trial court misunderstood the scope of its sentencing discretion " in the absence of some affirmative showing that it misunderstood its discretion." (People v. Alvarez (1996) 49 Cal.App.4th 679, 695.)

Appellant has not affirmatively demonstrated that the trial court misunderstood or failed to exercise its sentencing discretion. In imposing consecutive prison terms, the court stated, " In regards to count[s] 12 and 13, they will be consecutive to each other under section 667.61 (g) in that we had multiple victims out of a single offense . . . ." Section 667.61, subdivision (g), provides in relevant part: " If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim." We presume that the trial court was aware of and properly exercised its discretion under subdivision (g) to impose concurrent or consecutive prison terms for the lewd acts committed upon Jane Does 1 and 2. To presume otherwise " would require us to engage in pure speculation, and violate a basic tenet of appellate review." (People v. Alvarez, supra, 49 Cal.App.4th at p. 695.)

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

George Genesta, Judge

Superior Court County of Los Angeles

______________________________

Joanna McKim, 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, Michael R. Johnson, Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

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