People v. Mejia

• Decision Date: 12 September 2007
• Docket Number: No. B193804.,B193804.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mauricio Alfonso MEJIA, Defendant and Appellant.

65 Cal.Rptr.3d 776

155 Cal.App.4th 86

The PEOPLE, Plaintiff and Respondent, v. Mauricio Alfonso MEJIA, Defendant and Appellant.

No. B193804.

Court of Appeal, Second District, Division 5.

September 12, 2007.

Certified for Partial Publication.^*

Richard A. Levy, under appointment by the Court of Appeal, Torrance, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

KRIEGLER, J.

Defendant and appellant Mauricio Alfonso Mejia was charged with committing nine counts of sexual abuse against his granddaughter, the victim in this appeal, when she was 13 to 14 years old. The jury found him guilty of eight of those charges: continuous sexual abuse of a child under 14 years of age in violation of Penal Code section 288.5, subdivision (a);¹ six counts of committing a lewd act on a child of 14 or 15 years of age in violation of section 288, subdivision (c); and forcible rape in violation of section 261, subdivision (a)(2). Defendant was sentenced to state prison for 24 years, consisting of the midterm of 12 years for the continuous sexual abuse as base term, with six consecutive sentences of eight months (one-third of the two-year midterm sentences) on the lewd act convictions, plus a full consecutive upper term sentence of eight years on the rape conviction.

In his timely appeal, defendant contends: (1) there was constitutionally insufficient evidence to support his convictions for continuous sexual abuse, two of the lewd act convictions (counts 2 and 4 concerning acts in September and October 2004) and the rape conviction; (2) as to the continuous sexual abuse offense, the trial court erred in giving the pattern jury instruction indicating the prosecution need not prove the offense occurred on exactly the date alleged; (3) the trial court erroneously failed to instruct on attempted rape as a lesser included offense of rape; (4) the trial court erroneously failed to instruct on lewd conduct as a lesser included offense of continuous sexual abuse; (5) the trial court abused its discretion in admitting evidence of uncharged sexual offenses by defendant against the victim's mother, which violated defendant's federal constitutional right to due process; (6) the prosecutor committed misconduct during her rebuttal argument by urging the jury to consider punishment; (7) the trial court improperly imposed a full consecutive upper term sentence for the rape conviction based on its erroneous understanding that such a term was mandatory under section 667.6, as that provision provided at the time defendant committed the relevant offenses; and (8) the imposition of an upper term sentence for the rape conviction violated defendant's Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely).

As we explain, defendant's challenges to the sufficiency of evidence supporting his continuous sexual abuse conviction (count 1), as well as his lewd act conviction for conduct in September 2004 (count 2), are well taken because there was no substantial evidence that the assaults occurred within the statutory time periods. There was, however, constitutionally sufficient evidence supporting his conviction for the October 2004 lewd act and the rape. Based on our reversal of count 1, we need not reach the two separate claims of instructional error concerning that offense. We find any error in failing to instruct on attempted rape as a lesser offense to be harmless beyond a reasonable doubt. There was no error or due process violation regarding the admission of uncharged sexual offenses. The claim of prosecutorial misconduct based on a comment during rebuttal argument was forfeited. Concerning the application of section 667.6 at sentencing, we accept the Attorney General's concession that remand is necessary to permit the trial court to resentence on the rape conviction under the law as it existed at the time of the offense. Finally, remand is also required on the Blakely issue because the trial court relied on aggravating factors that were not found by a jury to impose the upper term on the rape conviction.

STATEMENT OF FACTS

A. Prosecution Evidence

The victim was born on September 18, 1990, and was 15 years old at the time she testified. Defendant is her grandfather. The victim lived with her parents and brothers in Huntington Park. Defendant began sexually molesting the victim in 2004. The incidents occurred in her own home and in defendant's home in Los Angeles on weekday afternoons when defendant watched her after school. The first incident occurred at home, when the victim was in eighth grade. She was in her bedroom reading her yearbook. Defendant entered the room and asked about the yearbook. The victim said that she was looking at it because she was getting ready to graduate from middle school. When she mentioned that her knee was hurting, defendant began massaging her raised knee—but "went lower and started touching [her] vagina" with his hand over her clothes. Before leaving, he told her "not to say anything."

The second instance of sexual abuse occurred one or two days later, at defendant's house. The victim was in the living room, watching television and petting the dog. Defendant began petting it too, but proceeded to rub the victim's vagina over her clothes. Defendant stopped when the victim's father arrived to pick her up. From that time until January of 2005, defendant would sexually molest her in a similar fashion "two or three days a week." The abusive incidents occurred "from June 2004 to January 2005." When defendant tried to reach his hand "inside" her pants, however, the victim would try to push him away. She did not tell anyone about defendant's conduct because she felt ashamed and because he had warned her not to—he told her that "it really wouldn't matter" if she reported it "[b]ecause nobody would believe [her]."

On an afternoon in January 2005, the victim was on her bed listening to music. She was wearing her school uniform, consisting of a white shirt and blue pants. Defendant opened her bedroom door, entered the room, closed the door behind him, and said hello. Suddenly, defendant climbed on top of the victim, pulled down her pants and underwear, and unzipped his pants. He put his knees between her legs and his penis in her vagina. She could not push him off. When he left the room, she felt dirty and took a shower. She did not tell her parents what defendant had done.

On cross-examination, the victim stated that defendant molested her approximately 10 times in 2004, while she was in eighth grade. She began ninth grade "around July" that year. That is, "between June and July" defendant molested her 10 times. The victim testified on redirect examination that during the 12-week period from June through August defendant molested her more than three times. In September 2004, defendant molested her more than two times; he did the same in October. On recross-examination, the victim denied testifying that defendant did not molest her at all in October of 2004. Rather, he did so "about once." When defense counsel asked her to state the number of times defendant had molested her in October, the victim stated: "I don't really remember much of October."

Regarding the January 2005 rape incident, the victim testified that her legs had been together, but defendant "pulled them open" and "pushed [her] knees back," before penetrating her. The penetration was painful.

On October 4, 2005, the victim spoke to her friend Elisa at school. When Elisa confided that she had been molested when she was little, the victim told her that she "had a similar situation." After school, the victim went to Elisa's home and told her friend that defendant and her uncle had molested her. The victim explained that she was "tired of her life" and could not "take it any more" because defendant and her uncle sexually molested her—they had "sexual relationships with her." The victim did not want to return to her own house because defendant molested her there. Elisa advised the victim to speak up and tell people about the abuse because it would not stop until she did. The victim agreed and told Elisa's mother. Elisa's mother telephoned the victim's mother and told her what the victim had said. When the victim's mother arrived, the victim told her about the abuse. The victim's mother took her home and reported the matter to the police.

The victim's mother testified that defendant, her father, had molested her when she was six or seven years old. Whenever her mother was out of town, defendant would enter her bedroom and touch her vagina while she was in bed. He persisted despite her telling him "no." At the time, defendant told her to keep his behavior a secret or "he would kill [her] grandmother or hurt [her] mom." Defendant also molested her in the swimming pool while pretending to give swimming lessons and after giving her a bath. On occasion, he would penetrate her with his penis. The molestations continued until she was 12 or 13 years old. They ended when she grabbed a pair of scissors and threatened to "chop his balls off if he touched her again. She let him watch the victim because she thought he had "changed" and become "a different person."

B. Defense Evidence

The defense sought to challenge the victim's credibility about the sexual abuse. Defendant's 20-year-old daughter, Martha, testified that she lived in defendant's house during her teenage years. Defendant did not sexually molest her. She had a close relationship with the victim, who would typically confide her secrets to Martha. At the time of defendant's arrest, the victim told her that defendant did not "take her virginity" and "never penetrated" her. Martha was not aware her father engaged in any...