People v. Pineda
| Decision Date | 27 February 2020 |
| Docket Number | F074777 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MAURICIO ALFONSO PINEDA, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Madera County. Joseph A. Soldani, Judge.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo- Appellant Mauricio Alfonso Pineda challenges, for insufficiency of evidence, two of his five convictions for committing lewd acts on a child under the age of 14 years. He also argues his sentence of 75 years to life constitutes cruel and unusual punishment because it exceeds his life expectancy and serves no valid penological purpose. In supplemental briefing, appellant raises constitutional challenges to court operations and facilities fees, as well as a restitution fine, which the trial court imposed. Appellant's claim is based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We reject appellant's contentions and affirm the judgment.
Appellant was charged, in an eight-count amended information (information) filed in Madera County Superior Court, with crimes against two minor sisters, J.H. and J.Z., as well as another child, A.E. (no relation to J.H. and J.Z.).
Counts 1 to 4 of the information pertained to J.H. In each of these counts, appellant was charged with committing a lewd and lascivious act upon a child under the age of 14 years, with force, duress, violence, menace, or fear of bodily injury. (Pen. Code, § 288, subd. (b)(1).)1 Counts 1 and 2 related to the year that J.H. was in the first grade (August 2011-July 2012) and counts 3 and 4 related to the year that she was in the second grade (August 2012-July 2013).
Counts 5 to 7 pertained to J.Z. In each of these counts, appellant was similarly charged with committing a lewd and lascivious act upon a child under the age of 14 years, with force, duress, violence, menace, or fear of bodily injury. (§ 288, subd. (b)(1).)
Count 8 pertained to A.E. In count 8, appellant was charged with the infliction on a child of cruel or inhuman corporal punishment or injury resulting in a traumatic condition. (§ 273d, subd. (a).)
A jury convicted appellant of all four counts involving J.H. (counts 1 through 4) as well as one count involving J.Z. (count 7). The jury also found true a special allegation to the effect that appellant had committed the section 288, subdivision (b)(1) offenses against more than one victim, triggering a sentence of 15 years to life for the offenses (counts 1 through 4, 7). (§ 667.61, subds. (b), (c)(4), (e)(4).) The jury was unable to reach a verdict on two counts involving J.Z. (counts 5 & 6) and acquitted appellant of the count involving A.E. (count 8).
Appellant was sentenced to an aggregate term of 75 years to life, consisting of a term of 15 years to life for counts 1 through 4 and 7. Counts 5 and 6 were dismissed on the People's motion.
In the instant appeal, appellant challenges his convictions in counts 1 and 2 for insufficiency of the underlying evidence as well as the constitutionality of his overall sentence.
Trial in this matter took place in October 2016. J.H. was born in 2005 and J.Z. in 2007. At the time of trial, J.H. was in the sixth grade and J.Z. was in the fourth grade.
The maternal grandmother of J.H. and J.Z. was in a romantic relationship with appellant. They separated as romantic partners in 2007. However, appellant still lived in the grandmother's four-bedroom home in Madera, where he had his own bedroom. In total, he lived with the grandmother from 2001 until he was arrested in the present case in December 2013. The grandmother ran a daycare in her home. Appellant worked as a truck driver; he was home on Fridays as Friday was his day off.
J.H. attended first grade (2011-2012) in Fresno and second grade (2012-2013) in Madera. J.Z. also attended kindergarten (2012-2013) in Madera. The school year ran from August to June.
Starting in February 2012, the girls' mother began to rely on the grandmother for child care while she herself went to work. The mother soon worked out an arrangement whereby she and the girls lived with the grandmother during the work week and returned to their own home in Fresno on weekends (they had lived in a mobile home in Fresno since 2007). This arrangement lasted from February 2012 to October 2013, when the mother moved to her sister's house in Madera. Even before this arrangement, however, the mother and the girls were at the grandmother's house "all the time." J.H. and J.Z. also spent their summer holidays with the grandmother in her Madera house.
In December 2013, while the mother and the girls were living with the mother's sister, J.H. woke up screaming one night; she was crying and appeared scared. That incident is what led the mother to call the police and make a report concerning J.H. The instant charges followed.
J.H. used the word "tutu" to refer to her vagina. J.H. testified, with reference to the period she lived with the grandmother, that appellant periodically took her into his bedroom. She explained: "I would only go inside his bedroom when he usually grabbed me by the hand and told me to go to his bedroom." He would take her by the "wrist area"; although he did not hold it tight, she "[p]robably" could not get away. Indeed, she "did not try" to get away "because [she] was scared and nervous." J.H. also said: "[T]he reason why I would go there [is] because he told me he would give me chocolates."
Once she was inside the bedroom, appellant would "take off [her] pants" and underwear and tell her to lay down on his bed with her feet off the bed; he would then "touch [her] tutu." More specifically, he would "be kneeling down [on the ground]towards [her] tutu" and would "put his mouth on [her] tutu." J.H. would feel his saliva on her tutu and sometimes "would look down towards him to see." Asked whether the act was "quick" or "long," J.H. replied, "It was kind of medium." Appellant's hands touched her when he pulled down her pants. His "hands were very chapped and dry." Afterwards, J.H. "would go out to continue [to] play with [her] friends," while appellant would stay in his room.
J.H. clarified that appellant touched her in this way "[m]ore than one time" but noted that her memory had faded because "[i]t's been a really long time." She repeated, at another point, that appellant had touched her like this "multiple times," but observed she did not "have an exact number." Asked whether it was five or 10 times, J.H. stated: "I'm not really sure, but I'm pretty sure it was more than five times." J.H. added: "[H]e usually just did the same things when he told me ... to go to his bedroom." She also specified she would get a chocolate every time. Regarding the time frame applicable to these acts, she testified: "I'm thinking it was—could have been about when I was in first and second grade."
The prosecutor asked J.H.: "When his hands were pulling down your pants, did you ever try to stop him?" J.H. answered, "No." Asked whether she ever told him to stop, J.H. said: J.H. then confirmed that appellant did stop when she told him to stop that last time.
The prosecutor also asked J.H.: "Did [appellant] touch your tutu in any other room besides his bedroom?" J.H. responded: "I think one time, he put me on the washing machine." The washing machine was located in the garage and appellant "grabbed [her] hand" and "took [her] there." She added: "[In the garage], he—he picked me up, and he put me on the washing machine, and then he took off my underwear and my pants, and he started touching my tutu." J.H. clarified that appellant was facing her asshe sat on the washing machine and he touched her tutu "[w]ith his mouth." "It felt very weird." The incident "wasn't very long." He also gave her a chocolate; he kept chocolates in a high cabinet in the garage, out of reach of the children. J.H. noted:
J.H. did not tell her grandmother about these incidents because "[she] was scared, and [she] was nervous." She explained: "I was afraid that he might have—might hurt someone or do—or hurt me." She added: "I just thought something like that would happen if he—if he knew that I told someone because he told me not to tell anyone." Consequently, she did not tell anyone until she finally confided in her mother. The acts stopped after J.H. informed her mother of their occurrence.
The prosecutor asked J.H. whether she had told the police officers and forensic interviewer—who spoke to her after her mother became aware of the situation—that appellant would put his mouth on her tutu. J.H. responded: "No, I didn't, and I did not say that because I was very scared, and I was afraid, and I didn't—I was—I just—I'm not sure what to do, so I didn't tell the truth at that time, but ...." In her forensic interview, J.H. indicated that appellant had touched her tutu with his hand; in actuality "he touched [h...
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