PEOPLE v. VALENCIA

No. H043036.

THE PEOPLE, Plaintiff and Respondent, v. HERIBERTO BELTRAN VALENCIA, Defendant and Appellant.

Court of Appeals of California, Sixth District.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

ELIA, Acting P.J.

Defendant Heriberto Beltran Valencia appeals from a judgment following a court trial, in which he was found guilty of multiple sex offenses against N., a 10-year-old girl. He challenges only his sentence, contending that the trial court abused its discretion by imposing a consecutive prison term for one of the six counts. We find no error and affirm the judgment.

Background

Adelina L., the victim's mother, had known defendant since about 2007, having rented a room from him in his San Jose apartment when N. was five years old. Adelina and N. lived there for about two years, during which Adelina and defendant formed a friendship. After that period defendant and Adelina lived close to each other; she and N. would see defendant from time to time. In about February or March 2012, Adelina moved with N. to Milpitas, and about six months later, she rented her garage to defendant. By that time N. was almost 10 years old and about to start fifth grade.1 Adelina worked as a janitor at night, and a woman would look after N. About four months after defendant moved into her garage, however, he offered to watch N. while Adelina was at work. Defendant "got along well" with N.; he sometimes bought her milk, candy, and other gifts. At times N. called him "dad."

On March 12, 2013, during a parent-teacher conference with N. present, N. began crying, and she eventually disclosed that at night, while she was asleep and Adelina was at work, defendant and another man, "Pablo," had demanded to be let in and had touched her "in a bad way." N.'s teacher reported the matter to Child Protective Services. At home later that day, N. told her mother that defendant had been "kissing her, touching her breasts," and that he had told her not to tell. The next day, as N. was getting out of the shower, Adelina asked N. to show her where defendant had touched her, and N. pointed toward her vagina. She also told Adelina that she had touched defendant's penis.

On March 19, 2013, N. was interviewed at the Children's Interview Center by the director, Trish Martinez. In the recorded interview, which was admitted into evidence, N. described three incidents of molestation by defendant. The first incident occurred when N. was nine and in fifth grade. N. went to defendant's apartment to use his cell phone to say good night to her mother. After the phone call, she hugged defendant good night and defendant touched her breasts under her shirt and bra. She told him to stop but he would not. She removed his hand and went home. Defendant told N. not to talk.

The second incident of abuse occurred around Christmas of 2012. Her mother had left for work, and N. was still asleep, when defendant began knocking on the door of her home, waking her up. N. went next door, told him to stop, and then went back to bed. Defendant knocked again later and N. again went to his apartment to tell him to stop. This time defendant began touching and rubbing N.'s "private," both over her clothes and then under them. N. told him to stop and moved his hand, but he "went again, again." He licked her breasts and vagina. N. said she would tell her mother, but defendant told her not to; he promised to buy her Cheetos if she remained silent, and N. "fell for it." After going into the bathroom and asking God to help her, she "sneaked out" and went back home.

The third incident took place in February 2013. N.'s mother was at work and N. went to defendant's bedroom to use his phone to call her mother. Defendant threw her on the bed, took off her pants and underwear, and touched her "in [her] butt and then [her] private." N. described how defendant also licked her vagina, put his "thing" inside her vagina, and tried to put it inside her "butt." N. tried to "squish [her] butt," but defendant pulled it apart and put his finger inside. Defendant told N. not to tell, and he said he would buy her a trampoline. Defendant tried to have N. touch his "thing," but she would not.

On March 21, 2013, Adelina made a pretext phone call to defendant. The call was recorded by the Milpitas police department. At the beginning of the call Adelina told defendant that N. had told her "everything," and she asked defendant to tell her what had happened. Defendant initially responded that N. was "unbearable" and "very active." He said that N. would walk in without permission, and she had once walked in on him having sex with his girlfriend. Defendant also claimed that N. had told him someone was touching her at home. When Adelina asked defendant if he had touched N., he denied it and said, "why would I tell you no?" He said that N. used to enter his bedroom, climb on top of him while he was asleep, and ask him to touch her "here and there." He "tried many times to avoid her . . . and the little girl wasn't having it." She was, "with all due respect . . . very much a bitch." Still, he insisted, "nothing major happened. . . . I am not going to try to abuse a little girl of that age. . . . No. Well touching her yes but no, no, no. . . ." He eventually admitted that he had "grabbed her on her pussy." Later in the conversation he again admitted that he touched N., but said, "not because I had wanted to. . . . I swear to you I tried to control her." He "touched and just that, no more," and that "no major thing happened and that [is] what counts. That nothing major happened." At her request, he asked Adelina to forgive him, and he swore that he would never touch N. again.

Police detective Kevin Moscuzza interviewed defendant the following day, assisted by another officer who translated the questions into Spanish. Defendant was advised of his Miranda rights. He initially denied that he "did bad things" to or with N.; but he said that N. acted like an older girl. Defendant said that on three occasions over the last two months N. had come into his bedroom while he was under the blankets and had thrown herself on top of him. He told her to get down and moved her off him. She asked to kiss him good night; he told her to give him a kiss and he would go to sleep, and then she would leave. Although initially defendant said that N. would kiss him on the cheek, later he said he felt bad because one time N. kissed him on the mouth. He said he might have accidentally touched her breast by moving her away from him, but not the "privates."

Eventually defendant admitted that he had touched N. on her breast and "private" over her clothes, but then he said that because it was "not okay," he told her to go away. She would tell him to grab her, but he would tell her no. Then he admitted that he had touched her under her clothes, both on the breast and "in the private area." N. would lift up her blouse herself, and he put his hand inside her pants. He knew she liked it because she would return and ask him to touch her again. Sometimes she asked him to touch her vagina with his tongue, and on one occasion, he did. N. also told him that she wanted to experiment with how babies were made; he did not have sex with her, but only explained the process to her. Later he admitted that he touched her vagina with his penis, but he did not penetrate her; he only showed her with his hand over hers where it goes.

N. testified at the August 2015 trial; she was then 12. She described the three incidents she had related to Martinez. During the first incident, N. was standing next to defendant's bed while she used his cell phone to call her mother to say good night. After she finished her call, defendant touched one of her breasts, first over her shirt and then under her shirt and bra, moving her breast with his hand. N. told defendant to stop, but he did not. She remembered him telling her not to tell her mother. The next day, she told a friend at school what had happened. Her friend said she should tell her mother, but N. decided not to take her friend's advice "because [she] didn't want any dramatic problems or anything."

On the second occasion, around Christmas of 2012, defendant began knocking on the back door and window of N.'s home while her mother was at work. After she went to his apartment to tell him to stop, he touched her breasts and vagina under her clothes. Defendant's finger went "a little bit" inside her vagina. N. told him to stop, and he told her not to tell her mother and offered to buy her Cheetos. N. went on to testify about the events she had described for Martinez relating to the third incident, in which defendant tried to put his penis inside her vagina, which hurt. Defendant also licked her vagina and put his finger "a little bit" in her anus, even though she resisted by squeezing her "butt cheeks" together. She recalled defendant's offer to buy her a trampoline.

Defendant was charged by amended information with two counts of committing a lewd or lascivious act on a child under 14 (Pen. Code, § 288, subd. (a), counts 1 & 2),2 four counts of oral copulation or sexual penetration of a child 10 years old or younger (§ 288.7, subd. (b), counts 3-6), and one count of sexual intercourse or sodomy with a child 10 years or younger (§ 288.7, subd. (a), count 7). Defendant waived a jury trial, and a court trial began on August 4, 2015. Ten days later, the court announced its verdict, finding defendant guilty of each count except for the seventh, sexual intercourse with a child. Defendant was sentenced to the midterm of six years on count 1, a concurrent six-year term on count 2, 15 years to life for count 3, consecutive sentences of 15 years to life on counts 4 and 5, and a concurrent term of 15 years to life for count 6. The total prison term imposed was thus 45 years to life, consecutive to six years.

Discussion

At issue on appeal is the trial court's decision to sentence defendant consecutively on counts 3 and 4. The prosecutor had designated count 3 as the digital penetration of N.'s vagina during the second incident (around Christmas of 2012), while count 4 was the oral copulation during that same incident. Defendant contends that the court abused its sentencing discretion by imposing these terms consecutively.

Defendant acknowledges the standard of review: We determine whether the trial court's decision to impose consecutive terms constituted an abuse of discretion. (People v. Bradford (1976) 17 Cal.3d 8, 20.) "In the absence of a clear showing of abuse, the trial court's discretion in this respect is not to be disturbed on appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered." (Ibid.; cf. People v. Sandoval (2007) 41 Cal.4th 825, 847 [sentencing discretion is abused if court relies on circumstances irrelevant to the decision or "that otherwise constitute an improper basis for decision"].)

The trial court specifically stated its reasoning in imposing consecutive terms: Defendant had "violated a position of trust. Also, the crimes were committed at different times, and rather than being committed so closely in time to indicate a single period of behavior, and in those crimes, although some of them may have occurred on the same date or occasion, the defendant had a reasonable opportunity to reflect upon his actions and nevertheless resumed his sexual assaultive behavior. Also, the crimes involved separate acts of violence."

Defendant speculates that in stating these reasons the court was relying on section 667.6, subdivision (d), which mandates a "full, separate, and consecutive term . . . if the crimes involve . . . the same victim on separate occasions." The statute further states, "In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether . . . the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions."

According to defendant, N.'s descriptions of defendant's behavior during the second incident were "insufficiently detailed" to support the trial court's finding that defendant had "a reasonable opportunity to reflect upon his actions and nevertheless resumed sexually assaultive behavior." This lack of "any specifics as to how they were committed" necessarily means, in defendant's view, that the court abused its discretion in applying section 667.6, subdivision (d), and the error therefore requires resentencing on count 4.3

Section 667.6, however, is inapplicable to the crimes described by counts 3 and 4.4 Moreover, there is no indication that the court was basing its decision on section 667.6, subdivision (d). The court's reasoning was instead entirely consistent with California Rules of Court, rule 4.4255; indeed, the court cited that provision in announcing its decision. Although the court adverted to defendant's having resumed sexually assaultive behavior after having a reasonable opportunity to reflect upon his or her actions, it was entitled to use this fact in exercising its discretion, as the criteria listed in rule 4.425 are not exclusive. Indeed, rule 4.408(a) makes it clear that "[t]he enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made."

Rule 4.425, in conjunction with rule 4.421,6 permits consecutive sentences when the defendant has taken advantage of a position of trust (rule 4.421(a)(11)), when the crimes and their objectives were predominantly independent of each other (rule 4.425(a)(1)), when they involved separate acts of violence (rule 4.425(a)(2)), and when they were committed "at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Rule 4.425(a)(3)). The court specifically referred to all of these circumstances as justification for imposing consecutive terms on specified counts. Any one of them was sufficient by itself to support the imposition of a consecutive term on count 4. (See People v. Osband (1996) 13 Cal.4th 622, 728-729 [only a single aggravating factor is required to impose the upper term "and the same is true of the choice to impose a consecutive sentence"].) Defendant does not argue otherwise. As no abuse of discretion has been shown, a remand for resentencing is not required.

Disposition

The judgment is affirmed.

BAMATTRE-MANOUKIAN, J. and MIHARA, J., concurs.

FootNotes


1. N. was born in October 2002.
2. All further statutory references are to the Penal Code unless otherwise indicated.
3. Defendant does not invoke section 654 as a ground for reversal.
4. Subdivision (e) of section 667.6 lists the 10 offenses to which subdivision (d) applies. The list is exclusive, and violations of section 288.7 are not included.
5. All further references to rules are to the California Rules of Court.
6. Rule 4.421 lists circumstances that may be used in deciding to impose the upper term of an authorized sentence range.

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