People v. Astengo
| Decision Date | 22 April 2022 |
| Docket Number | E075467 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JUAN VENTURA ASTENGO, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No FSB17002847, Colin J. Bilash, Judge. Affirmed with directions.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
FIELDS ACTING P.J.
In July 2017, the San Bernardino County Sheriff's Department received an electronic storage device alleged to contain child pornography. Upon investigation, they discovered numerous photographs depicting an adult man engaged in various forms of sexual contact with a toddler over the course of multiple days. As a result, a jury found defendant guilty of three counts of sexual intercourse or sodomy of a child 10 years of age or younger (Pen. Code, § 288.7 subd. (a), counts 1, 3, & 5);[1] one count of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b), count 7); and 11 counts of committing a lewd act upon a child under 14 years of age (§ 288, subd. (a), counts 2, 4, 6, 8, & 9-15). In a bifurcated proceeding, the trial court found true a special allegation that defendant had a prior conviction qualifying as a strike. Defendant was sentenced to an aggregate term of 180 years to life and an additional 44 years in state prison, which included the imposition of consecutive sentences on all counts.
Defendant appeals, arguing: (1) insufficient evidence supported his convictions on counts 1, 3, 5, and 7 (§ 288.7, subds. (a) & (b)); (2) the trial court erred in giving an instruction that classified count 7 (§ 288.7, subd. (b)) as a general intent crime; (3) the trial court erred in failing to stay punishment on counts 2, 4, 6, and 8 (§ 288, subd. (a)) because those convictions were based upon the same physical act alleged as the basis for counts 1, 3, 5, and 7; and (4) the matter should be remanded for sentencing because the trial court misunderstood the scope of its discretion in imposing consecutive sentences.
We conclude that sufficient evidence supports defendant's convictions, the alleged instructional error by the trial court was harmless, and the record does not support defendant's contention that the trial court misunderstood the scope of its discretion when sentencing defendant. However, we agree that imposition of defendant's sentences on counts 2, 4, 6, and 8 must be stayed pursuant to section 654, and we modify his sentence accordingly.
In July 2017, the San Bernardino County Sheriff's Department received an electronic storage device alleged to contain child pornography. Upon investigation, they discovered numerous photographs depicting an adult man engaged in various forms of sexual contact with a toddler.
As a result, defendant was charged with three counts of sexual intercourse or sodomy of a child 10 years of age or younger (§ 288.7, subd. (a), counts 1, 3, & 5); one count of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b), count 7); and 11 counts of committing a lewd act upon a child under 14 years of age (§ 288, subd. (a), counts 2, 4, 6, 8, & 9-15). It was also alleged that defendant had a prior conviction qualifying as a strike.
A.L. testified that she is the mother of four children, but all four have been removed from her custody. Her oldest child, N.S., was born in 2013. In 2016, A.L.'s sister, C.L., would occasionally babysit N.S. However, A.L. always left N.S. with C.L. at their father's home, and A.L. was never told that her sister took N.S. out of their father's home on any of these occasions.
C.L. testified that she is the sister of A.L. She entered into an immunity agreement with the district attorney's office to testify but was presently in custody for unrelated offenses. C.L. first met defendant when she was 17 years of age and began purchasing drugs from him. When she turned 18, she began exchanging sexual favors in return for drugs from defendant. The two agreed they would record their sexual activities.
C.L. testified that during sexual activity with defendant, she would often make sexually suggestive comments regarding N.S. as well as her own two children. She believed defendant enjoyed engaging in such dialogue and that defendant found such comments arousing.
On some occasions, C.L. would bring N.S. into the room while she had sex with defendant. C.L. admitted that she and defendant took photographs of N.S., but she claimed that defendant never intended to engage in sexual contact with N.S. Instead, C.L. expressed the belief that any contact that might have been depicted in a photograph was initiated by N.S. and that N.S. was merely trying to mimic C.L.'s actions. She claimed that defendant did not engage in any penetration of N.S. during these incidents.
C.L. estimated this type of contact occurred approximately three times in the summer of 2016, and that she took approximately three videos and 20 photographs on these occasions. However, C.L. also claimed she was on drugs at the time and could not explain why she would have taken photographs of these incidents.
A San Bernardino County Sheriff's Department detective testified that in July 2017, an unidentified individual provided law enforcement with a micro S.D. card[2]and reported that the card contained child pornography. The detective discovered that the micro S.D. card contained multiple photographs and videos that depicted a man's erect penis next to a toddler. The photographs and videos did not depict the man's face, but they revealed distinct scars along the man's abdomen and a freckle pattern on his hand. Some of the photographs depicted almost the entirety of the toddler's facial image.
The same micro S.D. card also contained videos of a male adult and female adult engaging in sexual intercourse. These videos depicted the facial image of both participants and, based upon previous encounters, the detective identified defendant and C.L. as the two adults. In several of the videos, defendant and C.L. can be heard discussing performing sexual acts upon N.S, as well as C.L.'s daughter and a third child.
Twelve of the photographs that were stored on the micro S.D. card were displayed for the jury. The detective described several of these photographs as depicting an erect penis "inserted" into the vagina of the toddler. The detective also described one of the photographs as depicting a finger "inserted" into the anus of the toddler. The time stamps associated with each photograph suggested they were taken on July 16, 25, and 30, 2016.
The jury was also shown photographs depicting defendant fully nude, as well as depicting defendant's hands and penis.
A registered nurse testified that she works as a forensic nurse clinician for the Children's Assessment Center in San Bernardino. She explained that the center conducts forensic examinations of children who have been victims of child abuse. She performed an examination of N.S. in July 2017, but she found no signs of physical trauma. However, she explained that it was possible for penetration of N.S.'s vagina or anus to have occurred without lasting physical signs of trauma a year later. She was shown the photographs previously presented to the jury and opined that she would not expect lasting signs of trauma for the type of penetration depicted in these photographs.
Another detective with the San Bernardino County Sheriff's Department testified that she works within the scientific investigations division of the sheriff's department and is a latent fingerprints examiner. She compared a fingerprint and a palm print taken from two of the photographs previously shown to the jury and determined that both prints matched those obtained from defendant at the time he was taken into custody.
Another detective with the San Bernardino County Sheriff's Department testified that she interviewed defendant during the course of their investigation. During this interview, defendant admitted to having a sexual relationship with C.L. in the summer of 2016. He was also shown a photograph taken from the same micro S.D. card that stored the photographs of N.S. and admitted he was depicted in that photograph. However, when he was shown the photographs depicting N.S., defendant denied being depicted in any of those photographs.
Defendant testified in his own defense. He admitted to having a sexual relationship with C.L., but he denied knowing, seeing, or ever being in the presence of N.S. He testified that C.L. was lying when she claimed to have taken photographs depicting him with N.S. He further denied that the hand depicted in the photographs reviewed by the fingerprints examiner belonged to him. Against the advice of counsel, defendant insisted on testifying further, but was stopped by the trial court when defendant attempted to claim the violation of various rights at the time of his arrest and during the course of the proceedings in the case. As a result of this additional testimony, defendant was forced to admit on cross-examination that he previously pled guilty to assault with a deadly weapon and suffered a prior conviction for domestic violence.
The jury returned a guilty...
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