People v. Lopez
| Decision Date | 14 March 2022 |
| Docket Number | B317228 |
| Court | California Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO LOPEZ, Defendant and Appellant. |
APPEAL from a judgment of the Superior Court of Kern County, No BF131896A Stephen Schuett, Judge. Affirmed with directions.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, and Lewis A. Martinez, Jennifer Oleska, and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Jose Antonio Lopez fled to Mexico after his two step-granddaughters accused him of sexually abusing them. Eight years later Lopez was arrested in California. A jury convicted Lopez on two counts of continuous sexual abuse of a child-one for each step-granddaughter-and the trial court sentenced him to two consecutive terms of 15 years to life.
Lopez contends that the delay in prosecution violated his rights to a speedy trial, that substantial evidence did not support either conviction, and that the court did not understand it had discretion to impose concurrent sentences on the two convictions. In the unpublished portion of the opinion, we conclude that the trial court did not violate Lopez's speedy trial rights and that substantial evidence supported his convictions. In the published portion, we conclude the trial court had discretion under Penal Code section 667.61 subdivisions (c) and (i), [1] to impose concurrent sentences. Therefore, we affirm the convictions on both counts of continuous sexual abuse of a child, vacate the sentences on those convictions, and direct the trial court to exercise its discretion whether to impose consecutive or concurrent sentences on those convictions.
Karen R. is the mother of Daniela C. and Rebecca C. Lopez was Karen's stepfather and, thus, Daniela and Rebecca's step-grandfather. In February 2010 Karen reported to the Bakersfield Police Department that Lopez had sexually abused Daniela, who was eight years old at the time, and Rebecca, who was six. Officer Felipe Juarez interviewed Daniela and Rebecca, each of whom told the officer that Lopez had touched her vaginal area and buttocks.
On February 17, 2010 Karen made a "pretext call"-a call monitored by law enforcement and intended to elicit incriminating information-to Lopez, accusing him of abusing Daniela and Rebecca. Detectives Lance O'Nesky and Hector Caldas interviewed Lopez later that day and informed him of the nature of their investigation. Sometime between then and March 8, 2010, Lopez went to Mexico.
In April 2010 the People filed a complaint charging Lopez with two counts of continuous sexual abuse of a child under the age of 14, in violation of Penal Code section 288.5, subdivision (a): count 1 for sexual abuse of Daniela and count 2 for sexual abuse of Rebecca. The superior court issued a warrant for Lopez's arrest.
Lopez was not arrested until August 6, 2018. On August 28, 2018 the People filed an information charging Lopez with the same two counts of continuous sexual abuse of a child. For each count, the People alleged Lopez committed an offense specified in section 667.61, subdivision (c)-which includes continuous sexual abuse of a child (§ 667.61, subd. (c)(9))- against more than one victim (see id., subd. (e)(4)).[2] Whether a true finding on that allegation required the court to impose consecutive terms is one of the issues in this appeal.
Lopez filed a motion to dismiss the charges, contending the People violated his speedy trial and due process rights by waiting eight years to arrest and arraign him. Lopez filed a declaration stating he did not visit Daniela and Rebecca's home in January or February 2010, when some of the abuse allegedly occurred. He argued the delay in bringing the case to trial prejudiced him because, after a diligent search, he was unable to locate two former co-workers whose testimony would have corroborated his testimony or obtain records from a former employer that would have supported his defense.
Lopez also stated in his declaration that in February 2010 he gave law enforcement his home address in Bakersfield and his phone number. He said that he resided at the Bakersfield address "for at least a year or two after February of 2010, and had the same phone number for even longer," but that law enforcement never contacted him to follow up on the investigation. Lopez stated: "At some point I went to Mexico, however, this was years later and had nothing to do with avoiding criminal prosecution."
At the hearing on the motion to dismiss, Lopez admitted on cross-examination that in fact he went to Mexico in March 2010, within a few weeks after the detectives informed him of the investigation. According to Lopez, he returned to the United States in June 2014. Detective O'Nesky testified Karen told him in March 2010 that Lopez went to Mexico and that he intended to stay there for at least a year.
The court denied the motion to dismiss. The court found Lopez "fled to Mexico once he was accused, which doesn't bode well for him." The court also stated that, although law enforcement could have done more to locate Lopez, there was no prejudice from the delay because "we don't know what his co-workers would say."
Karen testified that in 2010 she lived in a house with Daniela, Rebecca, and her other children. Between 2006 and February 2010 Lopez babysat Karen's children two to three times a month, occasionally spending the night. In February 2010 Daniela and Rebecca told Karen that Lopez had abused them.
Daniela, who was 17 years old when she testified at trial, stated Lopez abused her when she was seven and eight years old. Although she could not recall all the details of the abuse, she testified that on approximately five different occasions Lopez rubbed her vagina over her clothes with his hands and that on two to four occasions he touched her buttocks. Daniela also said Lopez touched her chest, but she could not remember how many times. In addition, Daniela testified that on one occasion she saw Lopez without "his clothes on." When asked how long Lopez abused her, Daniela said, "About five months." She said she never saw Lopez again after she reported the abuse. Daniela testified that she was nervous and uncomfortable talking about the case and that she did not want to testify because it "happened a long time ago and [she] put it past [her]."
Officer Juarez testified that when he interviewed Daniela in 2010 she stated Lopez touched her "pee pee area" and "butt area," both over her clothes and directly on her skin. The People also introduced the transcript of an interview with Daniela that Detective Caldas conducted in September 2018, shortly after Lopez was arrested. In that interview Daniela's description of the abuse was similar to her testimony at trial, but in the interview Daniela stated Lopez had rubbed her vagina under her clothing. In the interview she also described an incident she did not testify about at trial, where Lopez took off Daniela's underwear and put Daniela's hand on his penis. At trial Daniela testified she told the truth during the interviews.
Rebecca, who was 15 years old when she testified at trial, remembered three specific incidents, which she described as the "traumatic" and "main" instances of abuse. In the first incident Lopez got a blanket, put it over him and Rebecca, and rubbed Rebecca's chest area over her clothes.
In the second incident Lopez took Rebecca to her bedroom, told Rebecca's brother (who had followed them) to leave, and locked the door. Lopez removed his pants, told Rebecca to remove her clothes, and tried to remove Rebecca's skirt. Rebecca resisted and said, "No, I want to keep it on." Daniela knocked on the door, asked what they were doing, and said she was going to get the keys to the bedroom. Lopez "freaked out" and put his pants back on before anything else happened.
In the third incident, Lopez and Rebecca were lying on the floor with a blanket over them, watching television. Lopez started rubbing Rebecca's chest and vagina over her clothes. Lopez put Rebecca's hand on his penis, also over his clothes. The incident lasted five to 10 minutes. Rebecca testified that, after she reported the abuse, she saw Lopez once in 2016 outside her house, but otherwise did not see him until August 2018.
Rebecca did not remember the details of other instances of abuse, but she testified that Lopez touched her vagina "a lot" of times and that she touched his penis more than once. Officer Juarez testified that, when he interviewed Rebecca in 2010, Rebecca stated Lopez touched her vaginal area over her clothes approximately five times. The People also introduced the transcript of an interview of Rebecca that Detective O'Nesky conducted in March 2010. During that interview Rebecca stated Lopez grabbed her hand and placed it on his penis, over his clothes, about 20 different times. Although Rebecca did not remember her 2010 interviews with Officer Juarez and Detective O'Nesky, she remembered that in 2010 she spoke to law enforcement about what happened and that she told the truth.
Rebecca initially testified the abuse went on for a "couple" of months, but then...
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