People v. Lopez ( 2022 )

Filed 3/14/22
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
B317228
THE PEOPLE,
(Kern County
Plaintiff and Respondent, Super. Ct. No. BF131896A)
v.
JOSE ANTONIO LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern
County, Stephen Schuett, Judge. Affirmed with directions.
Hilda Scheib, under appointment by the Court of Appeal,
for Defendant and Appellant.
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of (1) parts B and C of the Factual and Procedural Background
(however, the headings for parts B and C of the Factual and
Procedural Background are to be published); (2) parts A and B of
the Discussion (however, the headings for parts A and B of the
Discussion are to be published); and (3) all numbered
subheadings.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Michael P.
Farrell, Senior Assistant Attorney General, Louis M. Vasquez,
Supervising Deputy Attorney General, and Lewis A. Martinez,
Jennifer Oleska, and Ian Whitney, Deputy Attorneys General, for
Plaintiff and Respondent.
__________________________
INTRODUCTION
Jose Antonio Lopez fled to Mexico after his two step-
granddaughters accused him of sexually abusing them. Eight
years later Lopez was arrested in California. A jury convicted
Lopez on two counts of continuous sexual abuse of a child—one
for each step-granddaughter—and the trial court sentenced him
to two consecutive terms of 15 years to life.
Lopez contends that the delay in prosecution violated his
rights to a speedy trial, that substantial evidence did not support
either conviction, and that the court did not understand it had
discretion to impose concurrent sentences on the two convictions.
In the unpublished portion of the opinion, we conclude that the
trial court did not violate Lopez’s speedy trial rights and that
substantial evidence supported his convictions. In the published
portion, we conclude the trial court had discretion under Penal
Code section 667.61, subdivisions (c) and (i), 1 to impose
concurrent sentences. Therefore, we affirm the convictions on
both counts of continuous sexual abuse of a child, vacate the
sentences on those convictions, and direct the trial court to
1 Statutory references are to the Penal Code.
2
exercise its discretion whether to impose consecutive or
concurrent sentences on those convictions.
FACTUAL AND PROCEDURAL BACKGROUND
A. Lopez Is Arrested Eight Years After His Step-
granddaughters Accuse Him of Sexual Abuse
Karen R. is the mother of Daniela C. and Rebecca C. Lopez
was Karen’s stepfather and, thus, Daniela and Rebecca’s step-
grandfather. In February 2010 Karen reported to the Bakersfield
Police Department that Lopez had sexually abused Daniela, who
was eight years old at the time, and Rebecca, who was six.
Officer Felipe Juarez interviewed Daniela and Rebecca, each of
whom told the officer that Lopez had touched her vaginal area
and buttocks.
On February 17, 2010 Karen made a “pretext call”—a call
monitored by law enforcement and intended to elicit
incriminating information—to Lopez, accusing him of abusing
Daniela and Rebecca. Detectives Lance O’Nesky and Hector
Caldas interviewed Lopez later that day and informed him of the
nature of their investigation. Sometime between then and
March 8, 2010, Lopez went to Mexico.
In April 2010 the People filed a complaint charging Lopez
with two counts of continuous sexual abuse of a child under the
age of 14, in violation of Penal Code section 288.5, subdivision (a):
count 1 for sexual abuse of Daniela and count 2 for sexual abuse
of Rebecca. The superior court issued a warrant for Lopez’s
arrest.
Lopez was not arrested until August 6, 2018. On
August 28, 2018 the People filed an information charging Lopez
3
with the same two counts of continuous sexual abuse of a child.
For each count, the People alleged Lopez committed an offense
specified in section 667.61, subdivision (c)—which includes
continuous sexual abuse of a child (§ 667.61, subd. (c)(9))—
against more than one victim (see id., subd. (e)(4)). 2 Whether a
true finding on that allegation required the court to impose
consecutive terms is one of the issues in this appeal.
B. Lopez Files a Motion To Dismiss, Which the Trial
Court Denies
Lopez filed a motion to dismiss the charges, contending the
People violated his speedy trial and due process rights by waiting
eight years to arrest and arraign him. Lopez filed a declaration
stating he did not visit Daniela and Rebecca’s home in January or
February 2010, when some of the abuse allegedly occurred. He
argued the delay in bringing the case to trial prejudiced him
because, after a diligent search, he was unable to locate two
former co-workers whose testimony would have corroborated his
testimony or obtain records from a former employer that would
have supported his defense.
Lopez also stated in his declaration that in February 2010
he gave law enforcement his home address in Bakersfield and his
phone number. He said that he resided at the Bakersfield
address “for at least a year or two after February of 2010, and
had the same phone number for even longer,” but that law
enforcement never contacted him to follow up on the
2 The People also charged Lopez with two counts of willfully
and lewdly committing a lewd or lascivious act on a child under
the age of 14, in violation of section 288, subdivision (a). The jury
found Lopez not guilty on those counts.
4
investigation. Lopez stated: “At some point I went to Mexico,
however, this was years later and had nothing to do with
avoiding criminal prosecution.”
At the hearing on the motion to dismiss, Lopez admitted on
cross-examination that in fact he went to Mexico in March 2010,
within a few weeks after the detectives informed him of the
investigation. According to Lopez, he returned to the United
States in June 2014. Detective O’Nesky testified Karen told him
in March 2010 that Lopez went to Mexico and that he intended to
stay there for at least a year.
The court denied the motion to dismiss. The court found
Lopez “fled to Mexico once he was accused, which doesn’t bode
well for him.” The court also stated that, although law
enforcement could have done more to locate Lopez, there was no
prejudice from the delay because “we don’t know what his co-
workers would say.”
C. The Family Testifies at Trial
1. Karen Learns Lopez Abused Her Daughters
Karen testified that in 2010 she lived in a house with
Daniela, Rebecca, and her other children. Between 2006 and
February 2010 Lopez babysat Karen’s children two to three times
a month, occasionally spending the night. In February 2010
Daniela and Rebecca told Karen that Lopez had abused them.
2. The Jury Hears Evidence of Daniela’s Abuse
Daniela, who was 17 years old when she testified at trial,
stated Lopez abused her when she was seven and eight years old.
Although she could not recall all the details of the abuse, she
5
testified that on approximately five different occasions Lopez
rubbed her vagina over her clothes with his hands and that on
two to four occasions he touched her buttocks. Daniela also said
Lopez touched her chest, but she could not remember how many
times. In addition, Daniela testified that on one occasion she saw
Lopez without “his clothes on.” When asked how long Lopez
abused her, Daniela said, “About five months.” She said she
never saw Lopez again after she reported the abuse. Daniela
testified that she was nervous and uncomfortable talking about
the case and that she did not want to testify because it “happened
a long time ago and [she] put it past [her].”
Officer Juarez testified that when he interviewed Daniela
in 2010 she stated Lopez touched her “pee pee area” and “butt
area,” both over her clothes and directly on her skin. The People
also introduced the transcript of an interview with Daniela that
Detective Caldas conducted in September 2018, shortly after
Lopez was arrested. In that interview Daniela’s description of
the abuse was similar to her testimony at trial, but in the
interview Daniela stated Lopez had rubbed her vagina under her
clothing. In the interview she also described an incident she did
not testify about at trial, where Lopez took off Daniela’s
underwear and put Daniela’s hand on his penis. At trial Daniela
testified she told the truth during the interviews.
3. The Jury Hears Evidence of Rebecca’s Abuse
Rebecca, who was 15 years old when she testified at trial,
remembered three specific incidents, which she described as the
“traumatic” and “main” instances of abuse. In the first incident
6
Lopez got a blanket, put it over him and Rebecca, and rubbed
Rebecca’s chest area over her clothes.
In the second incident Lopez took Rebecca to her bedroom,
told Rebecca’s brother (who had followed them) to leave, and
locked the door. Lopez removed his pants, told Rebecca to
remove her clothes, and tried to remove Rebecca’s skirt. Rebecca
resisted and said, “No, I want to keep it on.” Daniela knocked on
the door, asked what they were doing, and said she was going to
get the keys to the bedroom. Lopez “freaked out” and put his
pants back on before anything else happened.
In the third incident, Lopez and Rebecca were lying on the
floor with a blanket over them, watching television. Lopez
started rubbing Rebecca’s chest and vagina over her clothes.
Lopez put Rebecca’s hand on his penis, also over his clothes. The
incident lasted five to 10 minutes. Rebecca testified that, after
she reported the abuse, she saw Lopez once in 2016 outside her
house, but otherwise did not see him until August 2018.
Rebecca did not remember the details of other instances of
abuse, but she testified that Lopez touched her vagina “a lot” of
times and that she touched his penis more than once. Officer
Juarez testified that, when he interviewed Rebecca in 2010,
Rebecca stated Lopez touched her vaginal area over her clothes
approximately five times. The People also introduced the
transcript of an interview of Rebecca that Detective O’Nesky
conducted in March 2010. During that interview Rebecca stated
Lopez grabbed her hand and placed it on his penis, over his
clothes, about 20 different times. Although Rebecca did not
remember her 2010 interviews with Officer Juarez and Detective
O’Nesky, she remembered that in 2010 she spoke to law
enforcement about what happened and that she told the truth.
7
Rebecca initially testified the abuse went on for a “couple”
of months, but then described a “couple” of months as “three or
four.” In addition, when the prosecutor asked her to estimate
how much time passed between the first and last incident, she
stated that it was “just a couple” of months; then that it was
“more than two, so three” months; and finally that it was “a good
two, three months . . . from the first time to the last.”
4. Lopez Testifies in His Defense
Lopez denied he ever touched Daniela or Rebecca sexually
or inappropriately or forced them to touch him sexually or
inappropriately. He also denied he ever took Daniela or Rebecca
into a bedroom alone.
Lopez testified that in 2010 he was dating a woman named
Silvia and in that year moved to Mexico to marry her. 3 Silvia did
not accompany him to Mexico, but later met him there. Lopez
admitted that he left his children, grandchildren, and job behind
in the United States when he went to Mexico and that he did not
see his children again until he returned to the United States in
June 2014. He stated his decision to go to Mexico had nothing to
do with the accusations against him.
D. The Jury Convicts Lopez, and the Trial Court
Sentences Him
The jury convicted Lopez on both counts of continuous
sexual abuse of a child and, for each count, found true the
allegation Lopez committed an offense specified in section 667.61,
3 Lopez explained that he was undocumented in 2010 and
that he was told “it would be better” to get married in Mexico
than in the United States to avoid potential punishment.
8
subdivision (c), against more than one victim, within the meaning
of section 667.61, subdivision (e)(4). The trial court sentenced
Lopez to consecutive prison terms of 15 years to life. Lopez
timely appealed.
DISCUSSION
A. The Trial Court Did Not Violate Lopez’s Speedy Trial
Rights
1. Applicable Law and Standard of Review
Article I, section 15 of the California Constitution
guarantees a criminal defendant the right to a speedy trial.
(See People v. Cowan (2010) 50 Cal.4th 401, 430.) The “speedy
trial guarantee under the state Constitution is triggered by the
filing of a felony complaint. . . . [S]uch a violation may be
premised ‘on delay occurring after the filing of the complaint and
before the defendant was held to answer the charge in superior
court.’” (People v. DePriest (2007) 42 Cal.4th 1, 27 (DePriest),
italics omitted; see People v. Horning (2004) 34 Cal.4th 871, 895
(Horning)). 4
Where, as here, “‘a defendant seeks dismissal based on
delay after the filing of the complaint and before indictment or
4 Lopez does not argue the trial court violated his right to a
speedy trial under the Sixth Amendment to the United States
Constitution. (See DePriest, supra, 42 Cal.4th at p. 26 [“[i]t is
settled that . . . [t]he filing of a felony complaint does not trigger
federal speedy trial protection” under the Sixth Amendment
because “the Sixth Amendment requires ‘formal accusation in the
court with jurisdiction over the prosecution of the charge’ . . . or
‘arrest with continuing restraint’ on such charge”].)
9
holding to answer on felony charges, a court must weigh “the
prejudicial effect of the delay on defendant against any
justification for the delay.” [Citations.] No presumption of
prejudice arises from delay after the filing of the complaint and
before arrest or formal accusation by indictment or information
[citation]; rather, the defendant seeking dismissal must
affirmatively demonstrate prejudice.’” (DePriest, supra,
42 Cal.4th at p. 27; see People v. Lowe (2007) 40 Cal.4th 937, 942;
Horning, supra, 34 Cal.4th at p. 895.)
“Whether preaccusation delay is unreasonable and
prejudicial to a defendant is a question of fact.” (People v.
Mirenda (2009) 174 Cal.App.4th 1313, 1330.) “‘We review for
abuse of discretion a trial court’s ruling on a motion to dismiss for
prejudicial prearrest delay [citation], and defer to any underlying
factual findings if substantial evidence supports them.’” (People
v. Jones (2013) 57 Cal.4th 899, 922; see People v. Garcia (2014)
223 Cal.App.4th 1173, 1177; Mirenda, at p. 1330.)
2. Substantial Evidence Supported the Trial
Court’s Finding That the Delay Did Not
Prejudice Lopez
Lopez contends that, contrary to the trial court’s finding he
failed to show prejudice, he “made a credible showing that he
would have been able to establish an alibi” through the testimony
of two former co-workers he could no longer locate. Substantial
evidence, however, supported the trial court’s finding.
To show prejudice, “a defendant claiming a speedy trial
violation under the California Constitution must show that the
delay has impaired the ability to defend against the charged
crime because, for instance, a witness has become unavailable,
10
evidence has disappeared, or the memory of a potential witness
has faded.” (People v. Lowe, supra, 40 Cal.4th at p. 945,
fn. omitted.) But “speculation about prejudice . . . because
witnesses and evidence are now unavailable is insufficient to
discharge defendant’s burden. [Citation.] A particular factual
context must be established in which a specific claim of prejudice
can be evaluated.” (Shleffar v. Superior Court (1986)
178 Cal.App.3d 937, 946.)
The trial court did not err in ruling Lopez failed to meet his
burden to establish a specific factual context showing prejudice.
Lopez argued primarily that, but for the People’s delay, he could
have presented evidence he did not abuse Daniela and Rebecca
on a specific date—February 8, 2010. Lopez argued in his motion
that the People alleged he committed abuse “on a specific date
(2/8/2010)” and that he did not visit the home of Daniela and
Rebecca at that time. And counsel for Lopez stated in a
supporting declaration he was unable to obtain employment
records or cell phone records from “on or around” February 8,
2010 or speak to family members who could “say with any
certainty where [Lopez] was, or went, on that specific date.”
But the People did not have to prove—indeed, did not
attempt to prove—Lopez abused Daniela or Rebecca on
February 8, 2010 or any other specific date. The People alleged
that Lopez abused Daniela at least three times between
October 23, 2006 and February 8, 2010 and that he abused
Rebecca at least three times between October 28, 2008 and
February 8, 2010. And the People presented evidence he abused
them multiple times over a five-month period, not necessarily on
February 8, 2010. Thus, evidence of where Lopez was and what
he was doing on February 8, 2010 was not particularly probative
11
of whether he sexually abused his step-granddaughters three or
more times between October 23 or 28, 2008 and February 8, 2010.
(See People v. Jones, supra, 57 Cal.4th at p. 923 [trial court did
not err in finding the defendant’s claimed loss of “two ‘important’
witnesses” because of a delay in filing charges did not prejudice
the defendant where the People had a strong case and it was
unclear the witnesses would have been available to testify];
Horning, supra, 34 Cal.4th at p. 894 [defendant failed to show
any particularized prejudice from his inability “to locate certain
alleged witnesses” where “he failed to show that any of these
persons were relevant to the case or could help him in any way”].)
Lopez contends that the two witnesses he identified could
have corroborated his testimony he was working seven days a
week in January and February 2010 and that therefore he did
not see Daniela or Rebecca during those two months. In his
declaration Lopez identified two former co-workers whom he
“usually socialized” with “after work” and who, according to
Lopez, “would most likely have been able to vouch for [his]
whereabouts on any given day and time . . . .” But again,
whether Lopez worked seven days a week during two of the
months the People alleged he abused Daniela and Rebecca was
not particularly helpful to his defense. Lopez did not explain why
it was impossible or even unlikely for him to have babysat
Daniela or Rebecca on a day he worked. And it was highly
improbable that two witnesses could have accounted for Lopez’s
whereabouts for nearly all of January and February 2010.
(See People v. Lewis (2015) 234 Cal.App.4th 203, 213 [the
“Supreme Court has repeatedly found speculative arguments
inadequate to establish the actual prejudice required for delayed
prosecution to constitute a due process violation”]; Shleffar v.
12
Superior Court, supra, 178 Cal.App.3d at p. 947 [defendant failed
to show prejudice where she “failed to establish by any competent
evidence, as opposed to speculation, surmise or conjecture, that
her ability to prepare a defense has been prejudiced”].)
Lopez’s argument on prejudice also suffers from a more
fundamental flaw. The only evidence Lopez submitted on the
issue of prejudice was his testimony that he worked seven days a
week and that two co-workers would have provided corroborating
testimony. The trial court, however, did not have to find Lopez’s
statements were credible. (See People v. Hannon (1977)
19 Cal.3d 588, 609 [in evaluating whether the prosecution
violated the defendant’s speedy trial rights, “the trial court was
not obliged to accept defendant’s uncorroborated assertion that
he resided with his parents”].) And there were serious questions
about Lopez’s credibility. Lopez stated in his declaration he did
not move to Mexico until “years” after the police informed him
that Daniela and Rebecca had accused him of abuse—presumably
to show the prosecution unreasonably delayed before arresting
him. At the hearing on his motion, however, Lopez admitted it
was not really “years”—it was closer to days (or, at most, a couple
of weeks).
3. The Trial Court Did Not Err in Ruling the
Justification for Delay Outweighed Any
Prejudice to Lopez
Even if Lopez had shown he suffered some nonspeculative
prejudice, the trial court did not err in ruling the reason for the
delay—Lopez’s decision to flee—outweighed any such prejudice.
Pretrial delay may be justified where the defendant’s actions
contribute to the delay, particularly where the defendant flees
13
the state to avoid prosecution. (See DePriest, supra, 42 Cal.4th at
p. 28 [delay between the filing of the complaint and the trial was
justified where the defendant fled to another state]; Horning,
supra, 34 Cal.4th at p. 895 [delay in bringing the defendant to
trial was “especially” justified while the defendant was in hiding
in another state].) 5
The trial court found Lopez fled to Mexico after Detectives
Caldas and O’Nesky told him that they were investigating claims
against him of sexual abuse. Substantial evidence supported the
trial court’s finding. As discussed, Lopez initially stated he did
not move to Mexico for years, but he later admitted he moved to
Mexico within a couple of weeks after the detectives interviewed
5 Some courts have held a “‘defendant who flees the
jurisdiction of a court for the purpose of avoiding prosecution
waives the right to a speedy trial.’” (People v. Garcia, supra,
223 Cal.App.4th at p. 1178; see People v. Perez (1991)
229 Cal.App.3d 302, 308.) Other courts, however, “have found
that a defendant’s flight is simply one of several pertinent factors
which must be considered as part of the court’s speedy trial
inquiry,” at least under the United States Constitution. (People
v. Hsu (2008) 168 Cal.App.4th 397, 404-405, disapproved on
another ground in K.R. v. Superior Court (2017) 3 Cal.5th 295,
313, fn. 10; see Doggett v. United States (1992) 505 U.S. 647, 656
[112 S.Ct. 2686, 120 L.Ed.2d 520] [the “government may need
time” to locate a defendant who “goes into hiding,” which would
be entitled to “great weight” in a court’s determination of whether
the government violated a defendant’s speedy trial rights].) The
People do not cite Garcia or Perez or argue Lopez waived his
speedy trial rights. At a minimum, the trial court properly
considered Lopez’s flight as a factor in determining whether the
reasons for the delay outweighed the prejudice to Lopez.
14
him. The chronology indicates Lopez fled after, and because of,
the allegations against him.
Lopez argues the trial court’s finding on flight was
erroneous because the People did not file the complaint until
April 2010, after he was already in Mexico. But the record shows
Lopez knew he was a suspect and charges were likely coming.
The People submitted the transcript of the detectives’ February
2010 interview with Lopez. During the interview, Detective
Caldas attempted to elicit a confession from Lopez, while Lopez
maintained he had not abused Daniela or Rebecca. At the
conclusion of the interview, Detective Caldas told Lopez, “You’re
a suspect of molesting children” and “I’ll call you later and I’ll tell
you how this . . . case is going.” Even if Lopez’s speedy trial right
under the California Constitution had not yet attached when he
fled in March 2010, there was substantial evidence that Lopez
fled California to avoid prosecution and that his flight
contributed to the prearrest delay. (See DePriest, supra,42 Cal.4th at p. 28 [defendant’s flight to another state justified
the prosecution’s pretrial delay, even though the prosecution did
not file the complaint until after the defendant was in the other
state].)
Lopez also argues he had to show only minimal prejudice
from the delay because the prosecution did “absolutely nothing
toward locating [him] or informing him of the charges against
him.” The factual premise of his argument is not correct. An
officer with the Bakersfield Police Department testified the court
issued a warrant for Lopez’s arrest on April 29, 2010. The officer
entered the warrant on the California Law Enforcement
Telecommunications System network (CLETS), which would
have notified any law enforcement officer in California who ran a
15
record check on Lopez of the warrant. True, as the trial court
found, the People could have taken more steps to bring Lopez to
trial sooner, such as attempting to locate Lopez in Mexico after
he fled. But the People did not have to show such heightened
diligence. As discussed, the issue is whether the prejudice to
Lopez outweighed the justification for the delay. Because Lopez
showed, at most, minimal prejudice, and because Lopez was
largely responsible for the delay, the trial court did not err in
denying the motion. (Cf. Horning, supra, 34 Cal.4th at p. 894 [no
violation of the defendant’s speedy trial rights where the
“[d]efendant’s actions contributing to the delay,” including “going
into hiding,” were “far more blameworthy than any government-
caused delay”].) 6
6 Lopez contends the delay also violated his due process
rights under the state and federal constitutions. The “‘right of
due process protects a criminal defendant’s interest in fair
adjudication by preventing unjustified delays that weaken the
defense’ . . . ‘[even] before the accused is arrested or the
complaint is filed . . . .’” (People v. Nelson (2008) 43 Cal.4th 1242,
1250.) But the “test of a state constitutional speedy trial
violation and a state constitutional due process violation
converge, so ‘“regardless of whether defendant’s claim is based on
a due process analysis or a right to a speedy trial not defined by
statute, the test is the same, i.e., any prejudice to the defendant
resulting from the delay must be weighed against justification for
the delay.”’” (People v. Contreras (2009) 177 Cal.App.4th 1296,
1305; see People v. Martinez (2000) 22 Cal.4th 750, 767; see also
Nelson, at p. 1251 [while “the exact standard under [the United
States] Constitution is not entirely settled,” the “law under the
California Constitution is at least as favorable for defendant . . .
as the law under the United States Constitution”].) The People
did not violate Lopez’s federal or state due process rights for the
same reasons they did not violate his speedy trial rights.
16
B. Substantial Evidence Supported Lopez’s Convictions
for Continuous Sexual Abuse of Daniela and Rebecca
1. Applicable Law and Standard of Review
Section 288.5, subdivision (a), provides: “Any person who
either resides in the same home with the minor child or has
recurring access to the child, who over a period of time, not less
than three months in duration, engages in three or more acts of
substantial sexual conduct with a child under the age of 14 years
at the time of the commission of the offense . . . or three or more
acts of lewd or lascivious conduct . . . with a child under the age
of 14 years at the time of the commission of the offense is guilty
of the offense of continuous sexual abuse of a child . . . .” To
convict a defendant of this crime, the prosecution must prove the
defendant committed “at least three acts of sexual misconduct
with the child victim over at least three months . . . .” (People v.
Rodriguez (2002) 28 Cal.4th 543, 550; see People v. Valenti (2016)
243 Cal.App.4th 1140, 1158 (Valenti); People v. Mejia (2007)
155 Cal.App.4th 86, 93-94 (Mejia).)
Lopez challenges the sufficiency of the evidence on the last
element, that he abused Daniela and Rebecca for at least three
months. To prove the abuse occurred over at least three months,
the “‘prosecution need not prove the exact dates of the predicate
sexual offenses . . . .’” (Valenti, supra, 243 Cal.App.4th at p. 1158;
see Mejia, supra, 155 Cal.App.4th at p. 97.) “‘Rather, it must
adduce sufficient evidence to support a reasonable inference that
at least three months elapsed between the first and last sexual
acts. Generic testimony is certainly capable of satisfying that
requirement, [but] “the victim must be able to describe the
17
general time period in which these acts occurred (e.g., ‘the
summer before my fourth grade,’ or ‘during each Sunday morning
after he came to live with us’), to assure the acts were committed
within the applicable limitation period.”’” (Valenti, at p. 1158;
see People v. Jones (1990) 51 Cal.3d 294, 316; Mejia, at p. 97.)
“‘That is, while generic testimony may suffice, it cannot be so
vague that the trier of fact can only speculate as to whether the
statutory elements have been satisfied.’” (Valenti, at p. 1158;
see Mejia, at p. 97.)
“‘When reviewing a challenge to the sufficiency of the
evidence, we ask “‘whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.’” [Citation.] Because the sufficiency of the
evidence is ultimately a legal question, we must examine the
record independently for “‘substantial evidence—that is, evidence
which is reasonable, credible, and of solid value’” that would
support a finding beyond a reasonable doubt.’ [Citation.] In
doing so, we ‘view the evidence in the light most favorable to the
jury verdict and presume the existence of every fact that the jury
could reasonably have deduced from that evidence.’” (People v.
Navarro (2021) 12 Cal.5th 285, 302; see People v. Morales (2020)
10 Cal.5th 76, 88.) “‘We must also “accept logical inferences that
the jury might have drawn from the circumstantial evidence.”’”
(Navarro, at p. 302; see People v. Flores (2020) 9 Cal.5th 371,
411.) “We do not question the credibility of a witness’s testimony,
so long as it is ‘not inherently improbable,’ nor do we reconsider
the weight to be given any particular item of evidence.”
(Navarro, at p. 302; see People v. Reed (2018) 4 Cal.5th 989,
1006.)
18
2. Substantial Evidence Supported Lopez’s
Conviction for Sexually Abusing Daniela
Substantial evidence supported the jury’s finding that
Lopez abused Daniela over at least three months. Daniela
testified Lopez touched her vagina five times, her buttocks more
than once, and her chest. She specifically testified the abuse
occurred for approximately five months, when she was seven and
eight years old. She also stated during her 2018 interview with
Detective Caldas, which occurred immediately after Lopez was
arrested, the abuse occurred for more than five months.
Viewing her testimony in the light most favorable to the
verdict, there was substantial evidence Lopez abused Daniela
over at least three months. As the Supreme Court has frequently
stated, “‘unless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient
to support a conviction.’” (People v. Brown (2014) 59 Cal.4th 86,
106; see People v. Elliot (2012) 53 Cal.4th 535, 585; People v.
Young (2005) 34 Cal.4th 1149, 1181.) Daniela’s testimony was
neither physically impossible nor inherently improbable. And
while her testimony about the length of time Lopez abused her
was generic, she described the general time period during which
the abuse occurred: over five months while she was seven and
eight years old. Nothing more was required. (See People v.
Ramirez Ruiz (2020) 56 Cal.App.5th 809, 832-833 [child’s
statement to a social worker that the defendant “had penetrated
her private part with his own the previous Friday and had first
done so three months earlier” was sufficient to support a
conviction under section 288.5]; see also People v. Jones, supra,
51 Cal.3d at p. 316[“Additional details regarding the time, place
19
or circumstance of the various assaults may assist in assessing
the credibility or substantiality of the victim’s testimony, but are
not essential to sustain a conviction.”].)
Lopez contends substantial evidence did not support the
jury’s finding he abused Daniela for at least three months
because Daniela, when asked by counsel for Lopez whether “a lot”
of her responses were “guessing,” she responded, “Yeah.” But it
is not clear Daniela meant she was “guessing” about the length of
time Lopez abused her. While Daniela had some trouble
remembering the details of the abuse that occurred years before
Lopez fled to Mexico and then returned to the United States, she
consistently maintained the abuse occurred for five months—both
during her trial testimony and during her interview with
Detective Caldas. The jury reasonably could infer that, while
Daniela was making an educated guess about some facts, she was
not guessing about the length of time the abuse occurred.
(See People v. Salazar (2016) 63 Cal.4th 214, 242 [“‘“‘An appellate
court must accept logical inferences that the jury might have
drawn from the evidence even if the court would have concluded
otherwise.’”’”].)
3. Substantial Evidence Supported Lopez’s
Conviction for Sexually Abusing Rebecca
Substantial evidence also supported the jury’s finding that
Lopez abused Rebecca over at least three months. Rebecca
initially testified the abuse occurred for a “long time.” When
asked by the prosecutor how many months the abuse occurred,
20
Rebecca responded “about a couple,” which she clarified to mean
“three or four.”
The prosecutor later asked Rebecca: “From the time of the
first time you were, we’ll say, touched in a sexual manner, to the
last time that you were touched, do you think there were more or
less than three months between those times?” Rebecca
responded: “I don’t understand that question. I’m sorry.” The
prosecutor asked the question again, using almost identical
words, and Rebecca responded, “No.” Rebecca then testified:
“Q: How much time do you think passed between the first
time he touched you and the last time he touched you sexually?
“A: It was just a couple months.
“Q: Can you give us estimate? Was it more than less than
two?
“A: It was more than two, so three.
“Q: And do you know— I don’t want you to guess—but do
you know if it was more or less than three, if you could tell us?
“A: About everything that happened after—
“Q: Correct. From the first touching to the last one?
“A: It was—yeah, a good two, three months that—from the
first time to the last.”
Lopez argues this testimony showed Rebecca could not
remember whether the abuse in fact occurred for at least three
months. The People also admit that at least one incident Rebecca
described during her testimony was not lewd or lascivious
conduct under section 288. 7 Therefore, according to Lopez, it was
7 Rebecca testified that, because Lopez was continuing to
abuse her, she stopped wearing skirts and dresses and started
wearing pants. Rebecca described an incident where Lopez
21
speculative for the jury to infer that, when Rebecca testified the
abuse occurred for two to three months, she was referring to two
to three months between instances of lewd or lascivious conduct
under section 288.5.
While Lopez identifies some potential weaknesses in the
People’s evidence, our role is not to determine whether those
weaknesses could have caused a rational trier of fact to have a
reasonable doubt. As discussed, we ask only “‘“‘whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential element[ ] . . . beyond a reasonable doubt.’”’” (People v.
Navarro, supra, 12 Cal.5th at p. 302.) And a rational trier of fact
could have believed Rebecca’s initial testimony that the abuse
occurred for three to four months over her later testimony that
the abuse occurred for two or three months. (See People v.
Collins (2021) 65 Cal.App.5th 333, 345 [“[a]s a general matter,
juries may accept some parts of a witness’s testimony and reject
other parts”].) “‘[I]t is for the trier of fact to consider internal
inconsistencies in testimony’ [citation] and it is for us when
reviewing for substantial evidence to resolve the inconsistencies
in favor of the verdict.” (Ibid.; see People v. Brown, supra,
59 Cal.4th at p. 106 [“‘Resolution of conflicts and inconsistencies
in the testimony is the exclusive province of the trier of fact.’”].)
That Rebecca’s testimony was equivocal in part does not change
the fact it was sufficient to support the verdict. (See People v.
Smith (2011) 198 Cal.App.4th 415, 427 [“[w]hile it is true that
there was some contradictory evidence concerning the extent of
picked her up, asked her why she was wearing pants, and told
her to change into a skirt. Rebecca did not remember Lopez
touching her inappropriately during this incident.
22
defendant’s molestation of Doe when she was eight years old,”
Doe’s testimony, though “internally inconsistent,” still
“constituted substantial evidence that defendant’s molestation of
Doe when she was eight years old involved substantial sexual
conduct”]; People v. Cortes (1999) 71 Cal.App.4th 62, 73-74
[substantial evidence supported the defendant’s conviction for
rape, even though “the victim gave inconsistent and conflicting
testimony”]; People v. Tereno (1962) 207 Cal.App.2d 246, 251
[the “‘mere fact that there are contradictions and inconsistencies
in the testimony of a witness, or that the truth of his evidence is
open to suspicion, does not render it inherently improbable’”].)
Resolving any inconsistencies in Rebecca’s testimony in favor of
the verdict, substantial evidence supported the jury’s finding the
abuse occurred for at least three months.
Moreover, there was at least one reason for the jury to find
Rebecca’s initial estimate of how long the abuse occurred more
credible: Rebecca was confused when she stated the abuse
occurred for two or three months. When first asked by the
prosecutor, Rebecca stated, without apparent hesitation, the
abuse occurred for three or four months. But when asked
whether there were “more or less than three months” from “the
first time” she was “touched in a sexual manner to the last time,”
Rebecca, before attempting to answer the question, admitted she
did not understand it. The jury reasonably could find her initial
testimony was stronger evidence. (See People v. Myers (1981)
125 Cal.App.3d 735, 745, fn. 4 [“confusion or lack of clarity on the
part of a witness does not make that witness’ testimony
inherently improbable”], disapproved on another ground in
People v. Wolcott (1983) 34 Cal.3d 92, 101.)
23
In addition, there was evidence corroborating Rebecca’s
statement the abuse occurred for three to four months (or
perhaps longer). Karen testified Lopez generally babysat the
girls a few times a month for several years. During her 2018
interview with Detective Caldas, Daniela said that, on days
Lopez did not abuse her (which Daniela estimated was every
other day Lopez babysat them), she saw Lopez take Rebecca into
a room. Daniela stated this conduct occurred during the same
five months Lopez abused her, from which the jury reasonably
could have inferred Lopez abused Rebecca during the same five
months he abused Daniela.
Mejia, supra, 155 Cal.App.4th 86, on which Lopez primarily
relies, is distinguishable. In that case the jury convicted the
defendant of abusing the victim between June 1, 2004 and
September 17, 2004. 8 (Id. at p. 93.) The victim testified the
defendant began abusing her sometime in June, continued
abusing her through July, and abused her twice in September.
(Id. at pp. 94-95.) The court in Mejia held the victim’s testimony
was not substantial evidence the abuse occurred for at least three
months because “the jury could only speculate that the first
incident occurred early enough in June to satisfy the 90-day
requirement expiring on September 17, 2004” and “there was no
evidence as to when defendant abused [the victim] in September.”
(Id. at p. 95.) Here, in contrast, Rebecca specifically testified
8 As stated, section 288.5 applies only where a person
engages in three or more acts of sexual abuse with a child “under
the age of 14 years at the time of the commission of the offense.”
(See § 288.5, subd. (a).) The victim in Mejia turned 14 on
September 18, 2004. (Mejia, supra, 155 Cal.App.4th at p. 94.)
24
Lopez abused her for three to four months. And as discussed,
there was evidence corroborating her testimony. 9
C. Remand Is Appropriate for the Trial Court To
Exercise Its Discretion Whether To Impose
Consecutive or Concurrent Sentences
Lopez argues the trial court failed to recognize it had
discretion to impose concurrent sentences on his two convictions.
The court sentenced Lopez under the one strike law in section
667.61, which “‘mandates an indeterminate sentence of 15 or 25
years to life in prison when the jury has convicted the defendant
of a specified felony sex crime [citation] and has also found
certain factual allegations to be true.’” (People v. Carbajal (2013)
56 Cal.4th 521, 534.) Section 667.61, subdivision (c), lists the
crimes to which the one strike law generally applies. Continuous
9 Lopez also asserts substantial evidence did not support his
conviction because Rebecca testified the abuse started when she
was six years old. The People alleged Lopez abused Rebecca until
February 8, 2010, which was approximately three months two
weeks after Rebecca’s sixth birthday. Therefore, according to
Lopez, the jury could only speculate about whether the abuse
occurred for at least three months. But a rational juror
reasonably could infer that, when Rebecca testified she was six
years old when Lopez started abusing her, she meant she was
approximately six years old, not necessarily that he only abused
her after her sixth birthday. And even if Lopez only abused
Rebecca after her sixth birthday, there was still over three
months for Lopez to abuse Rebecca. (See People v. Ennis (2010)
190 Cal.App.4th 721, 729 [a reviewing court may reject testimony
accepted by the trier of fact “‘only when it is inherently
improbable or incredible, i.e., “‘unbelievable per se,’” physically
impossible or “‘wholly unacceptable to reasonable minds’”’”].)
25
sexual abuse of a child in violation of section 288.5 is listed in
section 667.61, subdivision (c)(9), as one of those crimes. The one
strike law includes a provision requiring consecutive sentences
for some, but not all, of the offenses listed in section 667.61,
subdivision (c). That provision is section 667.61, subdivision (i),
which states: “For any offense specified in paragraphs (1) to (7),
inclusive, of subdivision (c), . . . the court shall impose a
consecutive sentence for each offense that results in a conviction
under this section if the crimes involve separate victims . . . as
defined in subdivision (d) of Section 667.6.” Lopez contends that,
because section 667.61, subdivision (c), states the court must
impose consecutive sentences for offenses listed in
subdivision (c)(1) to (7), and continuous sexual abuse of a child is
specified in subdivision (c)(9), the trial court had discretion to
impose concurrent sentences on his convictions.
Lopez’s interpretation of section 667.61 is correct. “‘The
expression of some things in a statute necessarily means the
exclusion of other things not expressed.’” (Le Francois v. Goel
(2005) 35 Cal.4th 1094, 1105; accord, People v. Gollardo (2017)
17 Cal.App.5th 547, 557.) Because section 667.61, subdivision (i),
requires a trial court to impose consecutive sentences for certain
offenses in section 667.61, subdivision (c)—namely, those listed in
subdivision (c)(1) to (7)—it does not require the court to impose
consecutive sentences for other offenses in the statute—namely,
subdivision (c)(8) and (9). (See People v. Zaldana (2019)
43 Cal.App.5th 527, 536 [because “section 288, subdivision (a)
does not fall within [subdivision (c)(1)-(7)]—it is listed in section
667.61, subdivision (c)(8)— . . . the court retains discretion to
impose concurrent or consecutive 25-year-to-life terms for the
three violations of section 288, subdivision (a)”], review granted
26
Mar. 18, 2020, S259731.) Section 667.61, subdivision (i), “by
implication leaves the decision to impose consecutive or
concurrent terms” for the nonspecified offenses in section 667.61,
subdivision (c), “to the sentencing court’s discretion under section
669.” (People v. Valdez (2011) 193 Cal.App.4th 1515, 1524;
see People v. Bradford (1976) 17 Cal.3d 8, 20 [under section 669
“a trial court has discretion to determine whether several
sentences are to run concurrently or consecutively”]; People v.
Woodworth (2016) 245 Cal.App.4th 1473, 1479-1480 [where a
statute “does not contain an express provision depriving the trial
court of the discretion afforded to it in section 669,” the trial court
has “discretion to choose between concurrent and consecutive
sentences”].) It’s hard to imagine a clearer expression of
legislative intent that the consecutive sentencing provision of
section 667.61, subdivision (i), does not apply to all nine offenses
listed in section 667.61, subdivision (c), than stating it only
applies to seven of them. (See People v. Cook (2015) 60 Cal.4th
922, 935 [“statutory language is the best indicator of the
Legislature’s intent”].)
The People ignore section 667.61, subdivision (i), entirely.
Instead, they cite section 667.6, subdivision (d)(1), which
provides: “A full, separate, and consecutive term shall be
imposed for each violation of an offense specified in
subdivision (e) if the crimes involve separate victims . . . .”
Section 667.6, subdivision (e), includes continuous sexual abuse
of a child in violation of section 288.5. (See § 667.6, subd. (e)(6).)
Therefore, according to the People, section 667.6 requires the
court to impose consecutive sentences on multiple convictions for
continuous sexual abuse of a child (presumably, regardless of
what section 667.61 says).
27
The People’s proposed interpretation of sections 667.6 and
667.61, however, renders section 667.61, subdivision (i),
superfluous. When interpreting a statute, “we do not consider
the statutory language ‘in isolation.’ [Citation.] Rather, we look
to ‘the entire substance of the statute . . . in order to determine
the scope and purpose of the provision’” at issue, and we “must
harmonize ‘the various parts of a statutory enactment . . . by
considering the particular clause or section in the context of the
statutory framework as a whole.’” (People v. Mendoza (2000)
23 Cal.4th 896, 907-908; see People v. Hernandez (2021)
60 Cal.App.5th 94, 105.) In so doing, “interpretations which
render any part of a statute superfluous are to be avoided.”
(Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164,
1207; see People v. Cole (2006) 38 Cal.4th 964, 980-981 [“The
rules of statutory construction direct us to avoid, if possible,
interpretations that render a part of a statute surplusage.”];
People v. Aguilar (1997) 16 Cal.4th 1023, 1030 [courts “generally
avoid a reading that renders any part of a statute superfluous”];
see, e.g., People v. Foley (2020) 56 Cal.App.5th 401, 410 [rejecting
a proposed interpretation of section 667.61, subdivision (e)(4),
because it “essentially eliminate[d]” a word from the statute and
made it “entirely superfluous”].)
The legislative history confirms that section 667.61,
subdivision (i), not section 667.6, subdivision (d), applies to
sentencing under the one strike law. Prior to 2006, section 667.6,
subdivision (d), required (as it does now) the court to impose
consecutive sentences for certain sex crimes where the crimes
involved separate victims or the same victim on separate
occasions. (See former § 667.6, subd. (d), as amended by
Stats. 2002, ch. 787, § 16.) At that time the one strike law did not
28
include a separate provision specifying when a trial court had to
impose consecutive sentences. (See former § 667.61, as amended
by Stats. 1998, ch. 936, § 9.) Thus, prior to 2006 it may have
been unclear whether a trial court had to impose consecutive
sentences when sentencing a defendant under the one strike law
for offenses listed in section 667.6.
But in 2006 the Legislature enacted the Sex Offender
Punishment, Control, and Containment Act, which among other
changes added subdivision (i) to section 667.61. (See Stats. 2006,
ch. 337, § 33.) 10 Section 667.61, subdivision (i), specified when a
trial court had to impose consecutive sentences under the one
strike law; it was (and still is) less inclusive than section 667.6,
subdivision (d)(1). As amended, section 667.6, subdivision (d)(1),
already required the court to impose consecutive sentences for
each of the crimes specified in section 667.61, subdivision (i).
(Compare former § 667.61, subds. (c)(1)-(7), (n)(1)-(6), as amended
by Stats. 2006, ch. 337, § 33 with former § 667.6, subd. (e)(1)-(8),
as amended by Stats. 2006, ch. 337, § 32.) Therefore, if the
Legislature intended section 667.6, subdivision (d), to apply (or
continue to apply) where the trial court sentenced a defendant
under the one strike law, there would have been no need to add
subdivision (i) to section 667.61. The Legislature could have
decided not to add a sentencing provision when it amended
section 667.61 in 2006, which would have left trial courts to apply
section 667.6, subdivision (d)(1), when sentencing a defendant
under the one strike law. But that’s not what the Legislature
10 The legislation also added continuous sexual abuse of a
child to section 667.6, subdivision (e), thereby making the
enhancements specified in section 667.6 applicable to that crime.
29
did. Instead, the Legislature added to the one strike law an
independent sentencing provision that directs the trial court to
impose consecutive sentences for some, but not all, of the crimes
subject to the one strike law. 11
The history of Senate Bill No. 1128, the bill that became
the Sex Offender Punishment, Control, and Containment Act of
2006, also indicates section 667.61, subdivision (i), governs trial
court discretion to impose consecutive or concurrent sentences
under the one strike law. As amended on March 2, 2006, the bill
added continuous sexual abuse of a child in violation of section
288.5 to the crimes specified in section 667.6, subdivision (e), and
section 667.61, subdivision (d). Continuous sexual abuse of a
child was initially listed in section 667.61, subdivision (c)(10),
rather than in section 667.61, subdivision (c)(9). And section
667.61 initially did not include the provision later enacted as
subdivision (i), listing the offenses for which the trial court had to
11 Had the Legislature intended section 667.6,
subdivision (d)(1), to apply whenever the trial court sentenced a
defendant under the one strike law, the Legislature could have
drafted section 667.61, subdivision (i), to read something like:
“The court shall impose a consecutive sentence for each offense
that results in a conviction under this section if required by
section 667.6, subdivision (d).” (See Vasquez v. State of
California (2008) 45 Cal.4th 243, 253 [“We may not rewrite the
statute to conform to an assumed intention that does not appear
in its language.”]; People v. Wilson (2020) 53 Cal.App.5th 42, 52
[same].)
30
impose consecutive sentences. (See Sen. Amend. to Sen. Bill
No. 1128 (2005-2006 Reg. Sess.) §§ 30-31, Mar. 2, 2006.) 12
But on May 26, 2006 the sponsor of the legislation
introduced an amended version of the bill that added a new
subdivision (i) to section 667.61 that, as discussed, specified when
the trial court had to impose consecutive sentences under the one
strike law. (See Sen. Amend. to Sen. Bill No. 1128 (2005-2006
Reg. Sess.) §§ 32-33, May 26, 2006.) The addition of new
subdivision (i) to section 667.61 indicates the Legislature
understood the one strike law was an “‘alternative and harsher
sentencing scheme for certain enumerated sex crimes’” (People v.
Acosta (2002) 29 Cal.4th 105, 118; see People v. Mancebo (2002)
27 Cal.4th 735, 741), to which other sentencing rules and
enhancements, such those in section 667.6, generally did not
apply. Thus, the Legislature had to add subdivision (i) to section
667.61 to prescribe when trial courts had to impose consecutive
sentences under the one strike law. (See Assem. Com. on Public
Safety, Analysis of Sen. Bill No. 1128 (2005-2006 Reg. Sess.), as
amended June 22, 2006, ¶ 84 [the bill “[s]pecifies that for certain
crimes listed in the One-Strike sex statute, an offender must be
12 The March 2, 2006 version of the bill would have added
lewd or lascivious act in violation of section 288, subdivision (a),
as section 667.61, subdivision (c)(9), and continuous sexual abuse
of a child in violation of section 288.5 as section 667.61,
subdivision (c)(10). (See Sen. Amend. to Sen. Bill No. 1128
(2005-2006 Reg. Sess.) § 31, Mar. 2, 2006.) The final version of
the bill renumbered the paragraphs of the subdivision so that
continuous sexual abuse of a child in violation of section 288.5
was listed as section 667.61, subdivision (c)(9). (See Stats. 2006,
ch. 337, § 33.)
31
sentenced consecutively if the crime involves separate victims or
the same victim on separate occasions”].)
Because the trial court may not have recognized it had
discretion to impose concurrent or consecutive sentences on
Lopez’s convictions for continuous sexual abuse of a child,
remand is appropriate to allow the trial court to exercise that
discretion. 13 On remand, the court must state its reasons for
imposing either concurrent or consecutive sentences. (See Cal.
Rules of Court, rule 4.406(b)(5).)
13 The trial court did not state why it was imposing
consecutive sentences. Although we ordinarily presume the trial
court understood its sentencing discretion where the record is
silent (People v. Lee (2017) 16 Cal.App.5th 861, 867), we decline
to do so here because the application of section 667.6,
subdivision (d)(1), to the one strike law was arguably unsettled,
the court gave no indication it believed it had discretion to impose
concurrent sentences, and the court did not state its reasons for
imposing consecutive sentences.
32
DISPOSITION
The convictions on both counts of continuous sexual abuse
of a child are affirmed. The sentences on those convictions are
vacated, and the trial court is directed to exercise its discretion
whether to impose consecutive or concurrent sentences on those
convictions.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
33