People v. Mendibles

• Decision Date: 30 March 1988
• Docket Number: No. B018421,B018421
• Citation: 199 Cal.App.3d 1277,245 Cal.Rptr. 553
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frank Padilla MENDIBLES, Defendant and Appellant.

Page 553

245 Cal.Rptr. 553

199 Cal.App.3d 1277

The PEOPLE, Plaintiff and Respondent, v. Frank Padilla MENDIBLES, Defendant and Appellant.

No. B018421.

Court of Appeal, Second District, Division 1, California.

March 30, 1988.

Review Denied July 21, 1988.

Dennis A. Fischer, Santa Monica, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., and Paul C. Ament and Joan Comparet, Deputy Attys. Gen., for plaintiff and respondent.

SPENCER, Presiding Justice.

INTRODUCTION

Defendant Frank Padilla Mendibles appeals from a judgment of conviction entered after a jury trial. The jury found defendant not guilty of four counts of forcible lewd conduct with a child under the age of 14 (Pen.Code, § 288, subd. (b)) [counts I and II, in which the victim allegedly was Pauline; count III, in which the victim allegedly was Elizabeth; and count V, in which the victim allegedly was Mary]. However, the jury found defendant guilty of four further counts of forcible lewd conduct with a child under the age of 14 (Pen.Code, § 288, subd. (b)) [counts IV and VIII, in which the victim was Elizabeth and counts VI and VII, in which the victim was Mary]. The jury was unable to reach a verdict on a final count of the same offense [count IX, in which the victim allegedly was Elizabeth], after which a mistrial was declared and count IX was dismissed on the People's motion.

The jury further found true the allegations set forth in connection with counts IV and VII that at the time of the commission of the offenses, defendant occupied a position of special trust as the victims' common-law stepfather and committed an act of substantial sexual conduct, i.e., oral copulation (Pen.Code, § 1203.066, subd. (a)(9)). Thereafter, defendant was sentenced to state prison for the term prescribed by law.

STATEMENT OF FACTS

Pauline, Elizabeth and Mary lived with their mother, Ms. L., and defendant for more than two years prior to January 1983. At the time of trial, Pauline was 13 years old, Elizabeth was 12 years old and Mary was 10 years old. Their respective dates of birth were August 23, 1971; December 11, 1972; and August 14, 1974.

One day while the girls were residing with their mother and defendant at the Evergreen Motel, the three of them took a shower together. The door was locked, but defendant managed to unlock it and entered the bathroom; according to Elizabeth, he did this with a butter knife. After entering the bathroom, defendant removed his clothing and entered the shower with the girls. According to Pauline, he made the three of them wash his erect penis; Pauline was afraid of defendant and so did as she was told. According to Mary, defendant made her place her hand on a rag and wash his penis; she tried to get away, but defendant pulled her back. She was afraid of defendant at the time and has since remained afraid of him. Elizabeth initially testified defendant touched her in the vagina while she was in the shower, but on cross-examination stated no one touched defendant while they were all in the shower; instead, when defendant said, "wash me," she and her sisters got out of During the years defendant was living with them, he punished Pauline by spanking her and hitting her with a cord on her back, legs and arms. She bled when he hit her and has scars from the beatings. As a consequence, Pauline became afraid of defendant and has remained frightened of him. Defendant also hit Elizabeth with a cord on her legs, back and buttocks; he whipped her. In addition, defendant threatened Elizabeth that he would hit her if she ever told anyone what he did to her and likewise threatened to hit her if she did not perform oral copulation on him. On occasion, defendant also hit Mary with a belt and a cord on her legs, arms and buttocks.

the shower. Elizabeth was frightened at the time. According to Ms. L., she and the three girls lived with defendant at the Evergreen Motel for approximately two weeks prior to March 9, 1981.

One day while they were all living with defendant at the Vagabond Motel, Pauline and Elizabeth were home alone with defendant; they were being punished and were grounded. Mary had gone out with their mother. Defendant told Pauline if she and Elizabeth would get into bed with him, he would see that their mother rescinded the punishment. Consequently, they both got into bed with him; Pauline was next to defendant and Elizabeth was on the far side of the bed. When they were in the bed, defendant told Pauline to pull down her underwear; he then got on top of her and performed or attempted an act of intercourse which hurt her. Defendant warned Pauline not to tell anyone and she did not for some time. According to Ms. L., she and the three girls lived with defendant at the Vagabond Motel from March 9, 1981 to the summer of 1981.

One day while they all lived on Nordoff Street, Mary was ill and consequently stayed home with defendant alone. She was lying on the couch watching television, when defendant put his finger in her vagina; he then got on top of her and attempted an act of intercourse which hurt her. Mary tried to pull away from defendant, but he was too strong and she was afraid to resist any further. On another occasion, Mary was in her mother's room lying on the bed when defendant approached her. He unzipped his trousers, then pulled her head toward him and forced her into an act of oral copulation; he held her head until he ejaculated. She was very frightened during this episode.

Mary never told anyone about these incidents until she started to bleed while taking a shower when she was eight years old. Pauline recalled bathing with Mary when they saw blood in the bathtub/shower. It was then that she and Mary told their aunt, Mrs. H., what defendant had done. According to Ms. L., she and the girls resided with defendant on Nordoff Street on two different occasions--from September 23, 1981 until October 6, 1981 and from the summer of 1982 until January 1983.

One day while they were all residing on Herrick Street, Pauline and Elizabeth were home alone with defendant; Pauline was watching television, while Elizabeth was in her room. Defendant entered Elizabeth's room, undressed and told her to do the same. When Elizabeth refused, defendant pulled her head toward him and forced her into an act of oral copulation. At the same time, defendant placed his finger in her vagina. Thereafter, defendant got on top of Elizabeth and attempted or performed an act of intercourse. She tried unsuccessfully to get away from defendant during these acts; she was and is very much afraid of defendant.

On cross-examination, Elizabeth testified this incident occurred when she and Pauline were home sick with the chicken pox; their mother had gone across the street to visit defendant's parents. While Elizabeth was watching cartoons with Pauline, defendant called to her from the bedroom. Elizabeth went into the bedroom, but when defendant told her what he wanted, she left. Defendant called her back and when she reentered the bedroom, defendant was nude. He then forced her to perform an act of oral copulation until he ejaculated, after which he put his finger in her vagina and then attempted or performed an act of The girls' uncle, Hector Lopez, also resided at the Evergreen Motel. One day while the girls, Ms. L. and defendant were living at the Vagabond Motel, Uncle Hector poked Pauline in the vagina with his hand. Uncle Hector also got on top of Elizabeth on one occasion and attempted or performed an act of intercourse. The girls' mother told them not to tell anyone what Uncle Hector had done. Ms. L. acknowledged she told the girls not to say anything about their Uncle Hector, in that she wished to protect her brother; however, she never told them to lie about what defendant had done.

intercourse. According to Ms. L., she and the girls moved to Herrick Street with defendant on October 6, 1981 and resided there until the summer of 1982, after which they returned to Nordoff Street. Ms. L. was unaware any of these things had happened to her children until January 1983.

Astrid Heger, M.D. examined Pauline, Elizabeth and Mary on September 21, 1984. She examined each out of the presence of the others but in the presence of their grandmother; she took a history from each girl relating what had happened and also took a more general medical history from the grandmother to ascertain whether any of the girls had suffered any accidents which might affect Dr. Heger's findings. Thereafter, Dr. Heger performed a macroscopic and microscopic examination of each of the girls. In all, each examination took approximately one hour. During the course of her microscopic examination, utilizing a binocular 15 power colposcope equipped with a camera, she took six or more stereoscopic slides of each girl's external genitalia. Dr. Heger limited her examinations to the external genitalia, inserting nothing into the vaginal opening. In her opinion, physical intrusion is unnecessary; trauma can be observed visually by a trained individual.

In her visual examinations of prepubescent girls, both macroscopic and microscopic, Dr. Heger looks for a hymen which is not disrupted and is smooth. The more the vagina has been penetrated, the more stretched the hymen becomes and the more pronounced the patterns of scarring or disruption appear. Vulvar intercourse does not involve penetration of the hymen; consequently, scarring will not occur. There is no danger of an experienced observer mistaking a wrinkle for a scar; the two features have very distinct appearances. In a case of digital penetration, there may or may not be scarring, but any scarring which does occur will be in a different area from that where the majority of scarring from penile penetration occurs. Certain accidents may cause injury to the external female genitalia. The location of the injury and the pattern of scarring, as well as the patient's case history, help to...