P. v. Medina

Filed 9/18/07 P. v. Medina 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Florentino Yam Medina guilty of nine counts of a lewd act on a child (Pen. Code,  288, subd. (a))^[1]and one count of anal or genital penetration of a child by a foreign object ( 289, subd. (j)). The jury also found that Medina committed the offenses against more than one victim within the meaning of section 667.61, subdivisions (b), (c) and (e)(5).

The trial court sentenced Medina to three consecutive 15-year-to-life terms on counts 1, 5 and 8. The trial court also sentenced Medina to the six-year midterm on each of the remaining counts to run concurrently with the 45-year-to-life term. We affirm.

FACTS

Medina married H. L. in 2000. They lived together for a number of years prior to their marriage. H. L. had three grandchildren: Jeanette, Bianca and Linda. Medina raises no challenge to his convictions on counts 1 through 4, in which Jeanette was the victim.

Veronica is the victims' mother. She testified they lived at 1251 F. Street until 1994. In 1994, H. L. and Medina moved to 1249 F. Street. Veronica and the children never lived at 1249 F. Street. From June of 1998 until 2001, however, Veronica would leave the children with their grandmother five nights a week while Veronica worked. Veronica first left the children with their grandmother at 1249 F. Street, and later left them with their grandmother at a house on Juanita Avenue.

BIANCA (counts 5 through 7)

Bianca was born in November of 1989. Medina molested her on many occasions by touching her private parts. Bianca estimated Medina started molesting her when she was three years old and stopped when she was eleven or twelve years old. She said she might have been a couple of years older when he started, and a couple of years younger when he stopped. Bianca remembered a few specific instances.

The first specific instance occurred around the time Bianca was in third grade, but before she was in fifth grade. It was about five years before she talked to the police in March of April of 2003. She was in eighth grade when she talked to the police. Bianca was in bed in her grandmother's room. Medina was also in the bed. Medina touched her private parts with his hand while he masturbated.

Another specific instance occurred when Bianca was 10 or 11 years old. She was sleeping on the floor in her grandmother's room. She awoke to find Medina touching her private parts while watching a pornographic movie.

LINDA (counts 8 through 10)

Linda was born in June of 1988. Medina molested her about two or three times a week from the time she was six or seven years old until she was about twelve.

In one instance, Linda was sleeping in her grandmother's bed. Her grandmother had gone downstairs in the morning, leaving her with Medina. Linda awoke to find Medina touching her. He took off all her clothes, placed her on top of him, and ground her genitals against his genitals.

In another instance, Linda was sleeping with Bianca in the living room. Medina touched Bianca and then touched Linda.

In a police interview, Medina admitted he touched Jeanette's vagina, but denied he had vaginal or anal intercourse with her. Medina also denied any inappropriate touching of Linda or Bianca.

DISCUSSION

I

Medina contends his sentences on counts 5 and 8 violate the constitutional prohibition on the imposition of an ex post facto law.

Both the United States and California Constitutions prohibit the imposition of ex post facto laws. (U. S. Const., art. 1,  10; Cal. Const., art. 1,  9.) The prohibition protects against the application of a statute that inflicts greater punishment than was allowed at the time of the commission of the crime. (Collins v. Youngblood (1990) 497 U. S. 37, 42-43; People v. Grant (1999) 20 Cal.4th 150, 156.)

Medina was sentenced to consecutive 15-year-to-life sentences on counts 1, 5 and 8 pursuant to sections 667.61, subdivisions (b), (c) and (e)(5). Medina only contests the imposition of the sentence on counts 5 and 8, in which Bianca and Linda were the alleged victims.

Section 667.61 became effective on November 30, 1994. (Stats. (1993-1994, 1st Exec. Sess.) ch. 14,  1.) Count 5 alleges that Medina molested Bianca between November 22, 1992, and November 22, 2002. Count 8 alleges Medina molested Linda between November 22, 1994, and November 22, 2001. Thus the beginning dates contained in the allegations precede the effective date of section 667.61. Medina's ex post facto argument is based on the theory that there is a reasonable doubt his convictions on counts 5 and 8 were based on events that occurred after the effective date of the statute. Medina points out that prior to the effective date of section 667.61, the punishment for the crimes described in counts 5 and 8 was 3, 6 or 8 years. ( 288, subd. (a).) Thus the statute substantially increases punishment for the crimes.

The jury was not instructed that it must find counts 5 and 8 occurred on or after November 30, 1994; nor did the verdict form contain any such finding. Medina relies on People v. Hiscox (2006) 136 Cal.App.4th 253. There a jury found the defendant guilty of 11 counts of lewd and laviscious conduct with a child ( 288). The jury also made findings under section 667.61 that the offenses involved substantial sexual conduct and involved multiple victims. The court sentenced the defendant to 11 consecutive 15-year-to-life terms under section 667.61. The convictions were based on "generic" testimony, describing essentially indistinguishable acts of molestation. The prosecutor did not ask the victims to identify when they were molested with any specificity; the evidence did not reliably connect the various charges to any time frame other than the period between 1992 and 1996; and the court did not instruct the jury that its findings under section 667.61 were restricted to offenses committed on or after November 30, 1994. The Court of Appeal determined the life terms under section 667.61 violated the ex post facto clause. The court concluded: "On this state of the evidence, it simply cannot be said the prosecutor succeeded in establishing that any particular offense was committed when section 667.61 was in effect." (People v. Hiscox, supra,at p. 262.)

The court in Hiscox refused to review the record and hypothesize on which acts the jury may have based its verdict. (People v. Hiscox, supra, 136 Cal.App.4th at p. 261.) Of course, it would be improper to engage in pure hypothesis or conjecture. Nevertheless, we may review the record to determine whether there is a reasonable doubt that the underlying charges pertained to events occurring on or after November 30, 1994. (Ibid.)

The prosecutor told the jury that count 5 was based on a specific instance related by Bianca in her testimony. In that instance, Bianca was in bed in her grandmother's room and Medina touched her private parts with his hand while he masturbated. Bianca testified the incident occurred when she was in third grade. That would be well after section 667.61's effective date.

The prosecutor told the jury that count 8 was based on the instance related by Linda in which Medina took off all her clothes and rubbed her against him. Linda said that happened in house No. 2; that is, 1249 F. Street. Linda testified she did not live in house No. 2, but stayed there every weekday. Linda's mother testified she left the children with their grandmother five nights a week from June of 1998 until 2001, first at 1249 F. Street, and then at Juanita Avenue. Thus the only reasonable conclusion is that count 8 took place after June of 1998. Moreover, there are only eight days between November 22, 1994, the time when the complaint alleges the molestations began, and November 30, 1994, the effective date of section 667.61. There is simply no reasonable doubt the offense alleged in count 8 occurred after the effective date of the statute.

Medina relies on Hiscox for the proposition that it is inappropriate to rely on the prosecutor's argument to correlate the charged crimes with the acts described by the victims. (Citing People v. Hiscox, supra, 136 Cal.App.4th at pp. 260-261.) But Hiscox was not stating a general rule that the prosecutor's argument can never be considered. In Hiscox, the prosecutor told the jurors that her breakdown of the offenses was not the only way to link the charges to the defendant's conduct, "but merely 'the easiest way' to consider the evidence." (Ibid.) The prosecutor argued the evidence "provided 'many ways to find the defendant guilty.'" (Ibid.) Such an argument is no help in linking the charges to the acts described by the victims.

In contrast, here the prosecutor told the jury: "Count 5 is the first count against [sic] Bianca, also a 288 (a). That's going to be based on the morning in the bed when the [d]efendant was touching himself and he was also touching her. [] . . . [] Now Linda. Count 8 for Linda. The first instance would be the episode where he takes all of her clothes off, she's naked and he's grinding her against him. That was the one specific instance she could really nail for you in her current recollection."

The prosecutor did not tell the jurors there was any other way they could find Medina guilty on counts 5 and 8. It is extremely unlikely the jurors ignored the prosecutor's plain statement, and found Medina guilty based on some other acts. The record shows beyond a reasonable doubt that the convictions on counts 5 and 8 were based on acts that occurred after the effective date of section 667.61.

II

Medina contends the trial court erred in failing to properly instruct on the facts necessary to extend the statute of limitations.

The crimes alleged in counts 5 through 10 occurred outside of the normal six-year statute of limitations. ( 800.) Thus the prosecution alleged and the jury found that the extended statute of limitations provided in section 803, subdivision (f), applies.

At the time the prosecution filed the original information in 2003, section 803, subdivision (f), required the jury to find only: (1) there was a report to a California law enforcement agency by a person of any age that the person was a victim of a violation of section 288, and (2) a complaint accusing the defendant of the crime was filed within one year of the report. By the time the prosecution filed an amended information in 2005, however, section 803, subdivision (f), had been amended. The amended statute required the jury to find in addition to the elements required under the previous version of the statute: (3) that the crime involved substantial sexual conduct, as described in subdivision (b) of section 1203.066, excluding masturbation that is not mutual, and (4) there is independent evidence that corroborates the victim's allegations. (Amended by Stats. 2005, ch. 479,  3.)

The jury was instructed under the previous version of section 803, subdivision (f), but was not instructed under the amended version of the statute.

The Attorney General argues the version of the statute at the time the case was originally filed controls. Medina argues, however, that he is entitled to the application at trial of any substantive or procedural changes that benefit the defendant. (Citing Tapia v. Superior Court (1991) 53 Cal.3d 282, 301; 1 Witkin & Epstein (3d ed. 2000) Introduction to Crimes,  34, p. 64.) Assuming the amended version of section 803, subdivision (f), applies here, the error was harmless by any standard.

Section 1203.066, subdivision (b), defines "substantial sexual conduct" as "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." Section 803, subdivision (f)(B), excludes "masturbation that is not mutual" from substantial sexual conduct. But the exclusion applies only to the defendant's self-masturbation, the exclusion does not apply to masturbation of the victim. (People v. Terry (2005) 127 Cal.App.4th 750, 771-772.) Masturbation can include simply touching of the victim's genitals. (Id. at p. 772.) Here both victims testified Medina touched their genitals. Because the jury clearly believed the victims, there is no reasonable doubt the jury found substantial sexual conduct occurred.

Similarly, there is no reasonable doubt the jury would have found corroboration. Medina admitted he molested Jennifer, and all three victims described similar molestations.

Contrary to Medina's argument, the prosecutor did not tell the jury that substantial sexual conduct was not involved in counts 5 through 10. The prosecutor said that for "Linda and Bianca, there are no allegations of substantial sexual conduct with them." The prosecutor's point was that unlike the allegations concerning Jeannette, the jury was not required to resolve the question of substantial sexual conduct with regard to Linda and Bianca. That does not mean none occurred. The prosecutor was simply mistaken in telling the jury it was not required to resolve the question. In any event, no matter how the prosecutor's argument is characterized, there is no reasonable doubt Medina engaged in substantial sexual conduct with Bianca and Linda. Thus, any error was harmless.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Herbert Curtis III, Judge

Superior Court County of Ventura

______________________________

Gilbert W. Lentz, 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, Jaime L. Fuster, David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

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