People v. Moreno
| Decision Date | 21 May 2021 |
| Docket Number | F077381 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JESSE GARCIA MORENO, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Matthew Rodriquez, Acting Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Jesse Garcia Moreno was charged with 35 felony offenses arising from his molestation of his daughter from the ages of 11 to 17. Defendant was convicted by jury on all counts, as follows: two counts of committing a lewd or lascivious act on a child under 14 years of age (Pen. Code, § 288, subd. (a); counts 1-2),1 two counts of aggravated sexual assault of a child under 14 years of age and seven or more years younger (§ 269, subd. (a)(4); counts 3-4), 12 counts of forcible oral copulation on a minor 14 years or older (former § 288a, subd. (c)(2)(C); counts 5-16),2 11 counts of oral copulation by means of intoxication (former § 288a, subd. (i); counts 17-18, 20-23, 27-30 & 33), four counts of rape by means of intoxication (§ 261, subd. (a)(3); counts 19, 24, 31 & 32); two counts of sexual penetration by means of intoxication (§ 289, subd. (e); counts 25 & 34), one count of attempted sodomy by means of intoxication (§§ 664/286, subd. (i); count 26), and one count of using a minor for sex acts (§ 311.4, subd. (c); count 35).
The trial court sentenced defendant to a total determinate term of 159 years and a total indeterminate term of 30 years to life, for an aggregate prison term of 189 years to life in prison.3 In addition, the trial court imposed the maximum restitution fine of$10,000 under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $10,000 under section 1202.45, subdivision (a), suspended; and a $300 fine under section 290.3 for the commission of specified sex offenses.4 Further, the probation report and minute order correctly reflect a total court operations assessment of $1,400 under section 1465.8 and a total court facilities assessment of $1,050 under Government Code section 70373, but the court mispronounced the assessments as "courtroom securities of $70 per count for a total of $1,050."
On appeal, defendant claims that his statutory and constitutional rights to a speedy preliminary hearing and trial were violated following withdrawal of his time waivers, entitling him to dismissal. He also claims that based on the video clips entered into evidence, his convictions on count 5 for forcible oral copulation and counts 17-34 for various sex offenses committed by means of intoxication are not supported by substantial evidence; and that the trial court erred in allowing a detective to opine that the victim was intoxicated in some of the videos that corresponded with counts 17-34. Finally, pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant claims he is entitled to remand for an ability-to-pay hearing on the fines and court assessments imposed.
In supplemental briefing ordered pursuant to Government Code section 68081, the People concede that defendant's conviction on count 5 is not supported by substantial evidence of oral copulation. They also concede that the trial court may not impose court operations and facilities assessments if a defendant lacks the ability to pay. However, they contend defendant forfeited his Dueñas claim by failing to object and with theexception of the aforementioned concessions, they dispute defendant's entitlement to relief on his claims.
We accept the People's concession on count 5 and reverse defendant's conviction as unsupported by substantial evidence, which reduces defendant's determinate term by eight years and results in an aggregate term to 151 years to life in prison. However, we reject defendant's substantial evidence challenge to his convictions on counts 17-34, and his challenge to the admission of the detective's testimony that the victim appeared intoxicated in some of the video clips. We also conclude that defendant forfeited his Dueñas claim in its entirety by failing to object to the $10,000 restitution fine.
Finally, on our own motion and given the reversal of count 5, we modify the judgment to reflect imposition of a total court operations assessment of $1,360 under Penal Code section 1465.8 and a total court facilities assessment of $1,020 under Government Code section 70373. (Pen. Code, § 1260; People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2; People v. Guiffre (2008) 167 Cal.App.4th 430, 434-435.) We also order correction of the abstract of judgment to reflect imposition of a $300 fine under Penal Code section 290.3 (People v. High, supra, 119 Cal.App.4th at p. 1200), and imposition of the middle term of eight years on counts 6-16 (People v. Mitchell, supra, 26 Cal.4th at p. 185). Except as modified, the judgment is affirmed.
Defendant and A.M. had one child together, S.M. Their relationship ended when S.M. was four or five years old, and S.M. visited defendant most weekends. When S.M. was 11 years old, defendant began talking to her about sex. He exposed his penis to her, showed her pornography and demonstrated how to put on a condom. He told her he wanted to teach her "how to be a good girlfriend," by which he meant knowing how to perform oral sex.
The first instance of abuse S.M. recalled was defendant putting his mouth on her vagina and asking her to touch his penis. She was 11 or 12 years old. She did not recallwhen defendant first had her orally copulate his penis, but she testified he told her that boys would like her if she knew how to do it. Although it was all "a blur," she stated that something sexual in nature occurred every time she visited him over the six-year period between the ages of 11 and 17 years old.
S.M. did not see defendant every weekend, but during middle school and into the beginning of high school prior to when she turned 14, her visits involved sexual touching and oral copulation. Defendant told S.M. he had a medical condition that caused him to be unable to urinate and if she did not help him urinate by orally copulating him, he would have to go to the hospital.
When S.M. was 14 or 15 years old, defendant began making her eat chocolate covered strawberries that tasted like alcohol and drink alcohol mixed with red punch afterward. S.M. could see "very small" "black pebbles" in the drink that looked like a black powder to her. Defendant told her the strawberries would make her pass out and the alcohol would keep her awake. S.M. testified that the drink made her dizzy and confused, and it caused her to have complete memory loss.
Defendant began engaging in sexual intercourse with S.M. when she was 16 years old. She recalled one incident when defendant made her ingest the drink and she woke up the next morning wearing only a long T-shirt that did not belong to her. She recalled telling defendant she did not want to have sex with him and then waking up with him on top of her. She began to cry, and he told her not to cry. When she woke up the next morning, she felt ill, her vagina and lower abdomen were very sore, and her pubic hair had been shaved off. She had no memory of what happened other than when she woke to defendant on top of her and started to cry, but defendant told her they had had intercourse that night and asked if she was "'okay down there.'"
S.M. testified that defendant had a camera he would hold in the bathroom. She would tell him to stop, and he would tell her it was not on and put it down on the counter.He always picked it back up again, though, and she knew he recorded their sexual acts because he would later watch the recordings on the television.
When S.M. was 17 years old, she disclosed the abuse to a friend and then to her mother, who reported it to police. S.M. thereafter made two recorded phone calls to defendant, which were played for the jury. Defendant did not deny the crimes; he denied having bad intentions and stated he "apologize[d] for everything that ... [she felt] was not right" and for "bring[ing] [her] into something that ... [she was] not ready for ...."
When police executed the search warrant, they located 107 pornographic videos of defendant and S.M., along with still images that lacked any identifying information.5 They also located red punch; Smirnoff vodka, which S.M. said defendant sometimes poured in her drinks; and chocolate covered strawberries in the refrigerator. They did not locate any black powder, however, and did not confiscate or test the strawberries.
Defendant was arrested for the crimes in this case in May 2012. Relevant to his speedy trial claim, the criminal complaint against him was dismissed and refiled on September 9, 2015, and he was arraigned and entered a plea of not guilty. On September 14, 2015, defendant entered a general time waiver and his counsel of record, Mr. Kinney, moved to withdraw from the case.
On October 28, 2015, Mr. Quade, who had been appointed to represent defendant, notified the court that his office had declared a conflict and Mr. Lamanuzzi was to be appointed, but he was specially appearing on Mr. Lamanuzzi's behalf. During thehearing, defendant...
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