People v. Morales

• Decision Date: 27 November 2018
• Docket Number: H043837
• Citation: 29 Cal.App.5th 471,240 Cal.Rptr.3d 499
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ernesto Vega MORALES, Defendant and Appellant.

29 Cal.App.5th 471

240 Cal.Rptr.3d 499

The PEOPLE, Plaintiff and Respondent,

v.Ernesto Vega MORALES, Defendant and Appellant.

H043837

Court of Appeal, Sixth District, California.

Filed November 27, 2018

Certified for Partial Publication.^*

Attorneys for Defendant and Appellant: Law Offices of Beles & Beles, Robert J. Beles, Paul McCarthy, Manisha Daryani, Oakland.

Attorneys for Plaintiff and Respondent: Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Michael Chamberlain, Deputy Attorney General.

Mihara, J.Defendant Ernesto Vega Morales was convicted by jury trial of four counts of committing a lewd act on a child under 14 ( Pen. Code, § 288, subd. (a) ),¹ one count of committing a forcible lewd act on a child under 14 ( § 288, subd. (b) ), one count of sexual penetration of a child age 10 or younger (§ 288.7, subd. (b) ), two counts of criminal threats (§ 422), and two counts of dissuading a witness by threat of force (§ 136.1, subd. (c)(1) ). The jury found true an allegation that defendant had committed sexual offenses against multiple victims (§ 667.61, subd. (e)(4) ). The court committed defendant to state prison for a term of 75 years to life consecutive to a six-year determinate term.

On appeal, defendant contends that (1) the trial court violated his Sixth Amendment rights when it refused to allow him to substitute retained counsel for his appointed trial counsel on the eve of trial, (2) two of the lewd act counts, the forcible lewd act count, the criminal threats counts, and the dissuading counts are not supported by substantial evidence, (3) the prosecutor committed misconduct by commenting in rebuttal argument on defendant’s courtroom conduct, (4) the court made sentencing errors, and (5) his sentence is unconstitutionally cruel and unusual.

The Attorney General concedes that the one lewd act count involving Jane Doe 1 must be stricken because it was a lesser included offense of the forcible lewd act count involving Jane Doe 1. We agree and will direct the trial court to strike that count. Although we reject defendant’s other contentions, we reverse and remand for resentencing because we conclude that the trial court imposed unauthorized 15 years to life terms for three counts rather than the 25 years to life terms that were statutorily mandated for those counts. Consequently, we do not address defendant’s cruel and unusual punishment contention, which he may raise in the trial court at the resentencing hearing.

I. Evidence Presented at Trial

In the summer of 2004, Jane Doe 3 was seven years old and living in Salinas with her mother. Jane Doe 3’s grandfather lived in a trailer park in Alisal. The grandfather’s trailer was next door to the trailer where defendant lived with his wife and children. Jane Doe 3 "really enjoy[ed]" visiting her grandfather. She sometimes played with defendant’s "little boys."

Around July 4, 2004, Jane Doe 3 was in defendant’s trailer with his boys watching "Family Guy" on television. Defendant "just kind of moved me like onto his lap a little bit, and he unzipped my pants and was just touching me like over my underwear." Defendant "put his finger inside the zipper over the underwear and was rubbing" her "vagina." He asked Jane Doe 3 "if I liked it and if it had felt good." Jane Doe 3 "knew it wasn’t normal." She told defendant "that I had to be home for dinner that my grandpa wanted me to come back," and she "[g]ot up and left." After that she "didn’t want to go back" to her grandfather’s because she did not want to see defendant. A few days later, Jane Doe 3 told her older sister what had happened, but she asked her sister not to tell anybody.

Jane Doe 3’s mother noticed that "all the [sic ] sudden Jane Doe Three did not want to go see grandpa." On September 11, 2004, Jane Doe 3’s older sister told Jane Doe 3’s mother that defendant "had been touching" Jane Doe 3. Jane Doe 3’s mother contacted the police, and she, Jane Doe 3, and Jane Doe 3’s older sister were interviewed by the police. Jane Doe 3’s mother told the police that "I could not press charges" because the grandfather was "terminally ill" and her husband was "already so angry that this happened." Jane Doe 3’s mother took care thereafter when the family visited the grandfather to keep their presence unknown to defendant, but Jane Doe 3 remained fearful that she would encounter defendant. The grandfather died in January 2005, and Jane Doe 3 and her family never returned to the trailer park after that.

In the fall of 2013, Jane Doe 2 was eight or nine years old and her best friend Jane Doe 1 was seven or eight years old. Jane Doe 2 and Jane Doe 1 lived with their families in an apartment complex in Salinas. Near the back of the apartment complex was a big fruit tree with a swing in it.² Defendant lived in a little house next to the big tree. Children who lived in the apartment complex played in the green area next to the big tree. Defendant frequently played with the children, including his nephews, in the tree area.³

One day in 2013, Jane Doe 1 was pushing Jane Doe 2 on the swing in the big tree. Jane Doe 1 decided to climb the tree, and she "went in back of the tree" to do so.⁴ Jane Doe 2 remained on the swing, where she could not see Jane Doe 1. As Jane Doe 1 was starting to climb the tree, defendant came up behind her, picked her up with his hands on her back and "bottom," held her body against his, threw her over his shoulder as she "was trying to get out of him," and carried her behind the tree. She could not move her arms while he was carrying her. Defendant held her up against the side of the tree and then lifted her up onto the trunk of the tree. While defendant was holding Jane Doe 1 so that she could not move, he put his hand under her pants, under her underwear and began "like rubbing it" in a circular motion. She felt his finger go inside her private parts.

Jane Doe 1 told defendant "I will tell my parents," and he removed his hand and replied that he would "try to hurt my family." Jane Doe 1 was "scared," and she pushed defendant away. She "threw [her]self to the ground," and she and Jane Doe 2 ran away. Jane Doe 1 did not tell anyone because she was "scared" that defendant "might hurt my parents."

On two different days in 2013, "a few days" apart, defendant touched Jane Doe 2 while she was on the swing in the big tree. Defendant did this after he had told the other children who were playing in the area to go dig holes in a different part of the yard. The boys left, but Jane Doe 1, who was also there, "stayed" with Jane Doe 2.⁵ After the boys left, defendant touched Jane Doe 2’s waist area on her ribs with both hands. On another occasion in 2013, Jane Doe 2 was standing next to the tree, and defendant touched her on the middle side of her thigh. He "tr[ied] to touch" her "private parts," but he "stopped" when she "was going to start crying."

Jane Doe 2 did not tell her mother that defendant had touched her "[b]ecause he said he was going to kill all my family." Defendant’s threat made Jane Doe 2 "[a]fraid" and "fear[ful]." Defendant never picked Jane Doe 2 up or put her in the tree. Jane Doe 2 told Jane Doe 1 about defendant’s threat, and Jane Doe 1 told Jane Doe 2 that if Jane Doe 2 told her parents defendant would hurt them. Jane Doe 2 and her family moved away from Salinas in December 2013 when Jane Doe 2 was nine years old. Jane Doe 2 and Jane Doe 1 never saw each other again.

In March 2015, Jane Doe 1’s mother took Jane Doe 1 to a doctor’s appointment. Before they saw the doctor, Jane Doe 1 asked her mother if the doctor was "going to check up on her private parts." Her mother said yes, and Jane Doe 1 "started crying." Jane Doe 1 then disclosed to her mother that defendant had touched her private parts. Her mother contacted the police. Jane Doe 1 told the police that defendant had also touched Jane Doe 2. She also told the police that she had not told anyone earlier that she had been molested because defendant "was going to harm her family."

Defendant was interviewed by the police. He initially denied having any contact with Jane Doe 1. As the interview progressed, he admitted he "would play with her [Jane Doe 1], that I carried her like this, that I pushed her on the swing." "I did pick [Jane Doe 1] up and I took her to the tree." He eventually admitted that there was "just one time" when "my hand slipped" "over there" on her upper inner thigh, and the child "told me to remove my hand from her and put her down." "[B]ut I didn’t do it on purpose, nor with bad intentions." Defendant was arrested.

II. Discussion

A. Denial of Substitution

of Counsel Motion^**

B. Substantial Evidence

Defendant contends that two of the lewd act counts, the forcible lewd act count, the criminal threats counts, and the dissuading counts are not supported by substantial evidence.

Our standard of review is well established. "[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ( People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649 ; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237, 278 Cal.Rptr. 640, 805 P.2d 899.) A trier of fact may rely on inferences to support a conviction only if those inferences are "of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt" that the inferred facts are true. ( People v. Raley (1992) 2 Cal.4th 870, 890-891, 8 Cal.Rptr.2d 678, 830 P.2d 712.) "Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction." ( People v. Bloom (1989) 48 Cal.3d 1194, 1208, 259 Cal.Rptr. 669, 774 P.2d 698.)

1. Lewd Act Counts

a. Jane Doe 2

Defendant...