People v. Mendoza

Decision Date02 September 2015
Docket NumberB255092
Citation240 Cal.App.4th 72,191 Cal.Rptr.3d 905
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Ildefonso MENDOZA, Defendant and Appellant.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

STROBEL, J.*

Defendant Ildefonso Mendoza was charged with two counts of sexual intercourse or sodomy with a child 10 years old or younger (Pen.Code, § 288.7, subd. (a) ; counts 1 & 2),1 oral copulation or sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b) ; count 3),2 lewd act upon a child (§ 288, subd. (a); count 4), and possession of matter depicting a minor engaging in sexual conduct (§ 311.11, subd. (a); count 5). A jury convicted Mendoza on all counts. The trial court sentenced Mendoza to an aggregate state prison term of 67 years to life.

On appeal, Mendoza contends the trial court erred by failing to instruct the jury on the lesser included offenses of attempted sexual intercourse with a child 10 years of age or younger, attempted sodomy with a child 10 years of age or younger, and attempted oral copulation with a child 10 years of age or younger. Mendoza also contends the evidence was insufficient to support his conviction for possession of child pornography. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution's Evidence

Mendoza lived with Maria Ignacio, their two sons J. and A., and Ignacio's daughter, J. Mendoza and Ignacio had been together for about five years.

1. The Events of May 5, 2013

Ignacio testified as follows: On May 5, 2013, a Sunday, Ignacio left her house to go to the store. She took her son J., who at the time was five months old, with her. Her son A., then age two, and her daughter J., age seven, did not go with their mother. When Ignacio left, Mendoza was not at home. When she returned, she saw Mendoza's car. She went into her house and looked for J. She entered her bedroom and saw Mendoza standing in front of the bed, wrapped in a blanket. J. was on the bed. Ignacio saw that J. had clothes only on one leg. Ignacio yelled at Mendoza, asking him what he was doing. He turned to look at Ignacio, dropped the blanket and pulled up his shorts. J. got out of bed and pulled up her clothing. Mendoza said he was not doing anything and that it was the first time he touched J. Ignacio chased Mendoza out of the house and asked J. what happened.

J. did not want to talk much about what happened. Mendoza called every day asking Ignacio to forgive him and promising it would not happen again. Ignacio did not let him back in the house.

J. testified about the events of May 5, 2013. J. referred to Mendoza as “Tocho.” When her mother was at the store, Tocho asked J. “to play.” He pulled J. into her mother's room and asked her to lie on the bed. He pushed her onto the bed and then took off his clothes. Tocho also took J.'s clothes off, although she tried to pull her shorts or pants back up. Tocho “put his private part on [J.'s] private part,”3 and then he put it inside. J. was kicking him. Tocho said “a little bit more.” Ignacio came in and told Tocho to stop. Ignacio hit Tocho and wanted him to leave.

2. The Photographs

On June 9, 2013, Ignacio logged into Mendoza's Facebook page. Ignacio knew Mendoza's password. She wanted to erase any pictures of J. so Mendoza could not see her. Ignacio discovered two photographs of J. and Mendoza. One picture showed Mendoza's penis on J.'s vagina. The other picture showed Mendoza's penis inside J.'s vagina. Ignacio could identify the blanket on her bed depicted in the photographs and J.'s school uniform. She also recognized Mendoza's hand, which the picture showed grabbing his penis. Ignacio was enraged and deleted the two photographs. She went to the police that day and told them what had happened with Mendoza and J. She took J. to be interviewed by the police that evening.

J. testified that once she had her pants or shorts off, and Mendoza asked her to cover her eyes. J. was lying on the bed in her mother's room. Mendoza took a picture of her on his phone and then told her she could open her eyes. J. did not see the picture.

The Los Angeles Police Department had Mendoza's cell phone forensically analyzed after he was arrested. The analyst was unable to find the two photographs Ignacio had described. The investigating officer also attempted to subpoena information from Facebook regarding Mendoza's account, but Facebook did not find the photographs. Facebook administrators indicated that once photographs are deleted from an account, they are not held forever.

3. Earlier Events

J. testified that Mendoza began touching her when she was about six, after her baby brother J. was born. Mendoza stuck his penis into J.'s “front private part” about three to four times. Mendoza put his penis to her “back private part” about two times. Once Mendoza tried to get J. to put her mouth on his penis. Mendoza opened J.'s mouth with his hand and put his penis inside her mouth. It made her feel nasty. Mendoza touched her in her mother's bedroom on the bed, and in J.'s bedroom on the bed and on the floor. Mendoza told J. not to tell her mother about the touching.

4. J.'s Examination at UCLA Hospital

J. was examined by Elizabeth Tighe, a nurse practitioner, at Santa Monica-UCLA Hospital's sexual assault clinic. Tighe saw no physical injuries to J.'s vagina or anus. Nicole Farrell, a forensic interview specialist, interviewed J.4 J. told Farrell that Tocho had “put his middle part” in her “middle part.” J. did not remember how many times Tocho put his middle part in her middle part but thought it was three times. The first time was after her baby brother J. was born. J. could feel it when he put it in, “not all of it, just part.”

Jessica told Farrell that one time Tocho told J. to lick his penis and was pushing her head to do so. J. was pushing her head back and her mouth was closed. J. stated, he just put my head on ... but I closed my mouth.” Tocho put his middle part in her back “like four times.” J. did not know if Tocho took pictures.

5. Mendoza's Statements

After Ignacio kicked Mendoza out of the house, but prior to his arrest, Ignacio met with Mendoza and recorded their conversation on her cell phone.5 Mendoza admitted he touched J. with his hand and with his penis. Mendoza denied there was any penetration. Mendoza said the only time he touched J. was the day Ignacio had caught them in bed.

Mendoza was interviewed by Officer Jose Olmedo of the Los Angeles Police Department.6 Mendoza admitted to touching J. with his hand and his penis during the May 5, 2013 incident. He stated he was standing next to the bed, his penis was more or less erect, J. was lying on the bed, and her legs were on his chest. At first Mendoza denied that his penis went inside at all but later agreed his penis was inside the labia, and “the only thing that goes in is the tip.... [I]t can't past that ... [u]nless you force it.” Mendoza admitted that he had touched J. on previous occasions, including one time when J. was on all fours and he put his penis on her anus. He stated his penis did not “get in,” and “it's that you can't.”

Mendoza said that J. put her mouth on his penis one time, and his penis went inside her mouth around five times. Mendoza stated that his penis had gone inside J.'s vagina about three or four times. Mendoza took a picture of J. once with his cell phone, but he erased it.

B. The Defendant's Evidence

Mendoza presented no evidence.

C. Jury Instructions

During a conference outside the presence of the jury, defense counsel asked that the trial court instruct the jury on attempted oral copulation, on the basis that J. said she had kept her mouth closed. The trial court denied the request, reasoning that [c]ontact is all that is required.” Defense counsel did not request attempted sexual intercourse or attempted sodomy instructions.

DISCUSSION

Mendoza contends his convictions under counts 1 through 3 must be reversed based on the trial court's failure to instruct on the lesser included offenses of attempted sexual intercourse with a child 10 years of age or younger, attempted sodomy with a child 10 years of age or younger, and attempted oral copulation of a child 10 years of age or younger. Mendoza also challenges his conviction for possession of child pornography (count 5) based on insufficiency of the evidence. We affirm.

A. The Court Did Not Err in Failing to Instruct on Attempted Sexual Intercourse, Attempted Sodomy, or Attempted Oral Copulation
1. Elements of the Offenses Charged and Principles Concerning Lesser Included Offenses

The elements of sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a) ) are: (1) The defendant engaged in a act of sexual intercourse or sodomy with the victim; (2) when the defendant did so, the victim was 10 years of age or younger; and (3) at the time of the act, the defendant was at least 18 years old. (CALCRIM No. 1127.)

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. (People v. Dunn (2012) 205 Cal.App.4th 1086, 1097, 141 Cal.Rptr.3d 193 ; People v. Karsai (1982) 131 Cal.App.3d 224, 233–234, 182 Cal.Rptr. 406, disapproved on another ground in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal.Rptr. 635, 758 P.2d 1165 ; CALCRIM No. 1127 ). Sodomy similarly requires penetration, however slight. (§ 286, subd. (a); People v. Farnam (2002) 28 Cal.4th 107, 143, 121 Cal.Rptr.2d 106, 47 P.3d 988 ; People v. Huynh (2012) 212 Cal.App.4th 285, 305, 151 Cal.Rptr.3d 170.) These are general intent crimes. (See People v. Richardson (2008) 43 Cal.4th 959, 1018, 77 Cal.Rptr.3d 163, 183 P.3d 1146.)

The elements of oral...

To continue reading

Request your trial
63 cases
  • People v. Baker
    • United States
    • California Court of Appeals Court of Appeals
    • February 22, 2018
    ...how slight, between the mouth of one person and the sexual organ of another. Penetration is not required." (People v. Mendoza (2015) 240 Cal.App.4th 72, 79–80, 191 Cal.Rptr.3d 905.) The phrase "10 years or younger" means " ‘under 11 years of age.’ " (People v. Cornett (2012) 53 Cal. 4th 126......
  • Dunn v. Long
    • United States
    • U.S. District Court — Southern District of California
    • June 1, 2016
    ...contained in section 288.7(a) "means any penetration, no matter how slight, of the vagina or genitalia by the penis." People v. Mendoza, 240 Cal. App. 4th 72, 79 (2015); see also CALCRIM No. 1127. California courts have further held that the term "penetration" does not require penetration o......
  • People v. Moses
    • United States
    • California Court of Appeals Court of Appeals
    • August 14, 2019
    ...offense." (People v. Bailey (2012) 54 Cal.4th 740, 753, 143 Cal.Rptr.3d 647, 279 P.3d 1120 ; see, e.g., People v. Mendoza (2015) 240 Cal.App.4th 72, 83, 191 Cal.Rptr.3d 905 [specific intent attempt crime is not a lesser included offense of a completed general intent crime].) That is the cas......
  • Sam v. McDowell
    • United States
    • U.S. District Court — Eastern District of California
    • June 21, 2018
    ...that the defendant (1) engage in sexual intercourse or sodomy (2) with a child who is ten years of age or younger. People v. Mendoza, 240 Cal. App. 4th 72, 79 (2015). And, § 288.7(b) covers (1) oral copulation or sexual penetration (2) with a child ten years of age or younger. Recognizing t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT