People v. Torres CA2/7 ( 2014 )

Filed 6/17/14 P. v. Torres CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B246363
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA124164)
v.
RAYMOND TORRES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J.
Higa, Judge. Reversed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Dana M. Ali and Toni R. Johns
Estaville, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Raymond Torres was convicted after a jury trial of two counts of committing
forcible lewd acts on a child under 14 years of age, two counts of forcible penetration
with a foreign object and one count of forcible oral copulation. The victim was Torres’s
stepdaughter, Gabrielle. Torres contends there is insufficient evidence he used force to
commit any of the offenses and, even if there was, Gabrielle’s general testimony about
the sexual abuse was insufficient to support convictions for more than one count each of
forcible lewd conduct and forcible penetration. We agree there is insufficient evidence
Torres used force to commit the lewd acts, reverse the convictions on those two counts
and direct the trial court to enter judgment finding Torres guilty of two counts of the
lesser included offense of committing a lewd act on a child under 14. Torres’s
convictions on the other three counts are affirmed, and the matter is remanded for
resentencing consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Torres was charged by information with committing multiple sexual offenses
against his daughter Krystal as well as Gabrielle. With respect to Krystal, Torres was
charged with three counts of forcible sexual penetration with a foreign object (Pen. Code,
1
§ 289, subd. (a)(1)(A)) (counts 1, 2 and 3); and one count of forcible rape (§ 261,
subd. (a)(2)) (count 4). As to Gabrielle, he was charged with three counts of committing
lewd acts by force on a child under 14 (§ 288, subd. (b)(1)) (counts 5, 6 and 12); two
counts of forcible rape (§ 261, subd. (a)(2)) (counts 7 and 8); two counts of forcible
sexual penetration with a foreign object (§ 289, subd. (a)(1)(A)) (counts 9 and 10); and
one count of forcible oral copulation (§ 288a, subd. (c)(2)) (count 11). It was specially
alleged there were multiple victims within the meaning of the “One Strike Law.”
(§ 667.61, subds. (b), (e).)
Torres pleaded not guilty and denied the special allegation.
1 Statutory references are to the Penal Code.
2
2. The Evidence at Trial
a. Gabrielle’s testimony
Twenty-one years old at the time of trial, Gabrielle testified Torres became part of
her family when she was two years old. She considered Torres her father and described
him as a “good dad.” When Gabrielle was nine years old, Krystal, who was 15 or 16 and
had been living with her mother, moved into the home Gabrielle shared with Torres, her
mother, sister and brother on Gard Avenue in Norwalk. After Krystal moved in,
according to Gabrielle, everything changed: Torres became “angry and just weird”
although Krystal was the target of the brunt of his anger. Torres also began touching
Gabrielle over her clothing in a “more aggressive, more touching-type” way while they
were playing, which they did “all the time.” Gabrielle explained, “[I]t would be like a
tickling-type play, if I was laying down he would touch in between my legs, tickle inside
of your thigh but it would go from the inside of my thigh up . . . to touch . . . my vagina.”
When this occurred, Gabrielle would move Torres’s hand and stop playing.
When Gabrielle was 12 years old the family, except Krystal, moved into a
one-bedroom apartment on Imperial Highway in Norwalk. Torres would watch Gabrielle
and her siblings, both of whom are autistic, during the day while their mother worked.
After the move Torres and Gabrielle’s relationship changed. Torres became possessive.
If the two were out alone, Torres would put his arm around Gabrielle and say, “[P]eople
are jealous saying that they want you. I got you.” One night Gabrielle, who slept on the
couch in the living room, was asleep on her stomach when Torres pulled down her pants
and touched her buttocks. As he was moving his hand toward her vagina, Gabrielle, who
was feigning sleep, moved. Torres jumped back, but then continued touching her. As
Gabrielle kept her legs closed, Torres touched as much of her vagina as he could reach.
After this incident Torres sexually abused Gabrielle after she had gone to sleep
“once or so a week” for the year and a half they lived on Imperial Highway. Torres’s
actions varied although Gabrielle always pretended she was repositioning herself in her
sleep to minimize the contact. Sometimes Torres kissed her, pushed his penis against her
buttocks and vagina or put his fingers between her vaginal lips. Once he put his penis
3
inside her vagina; on another occasion he put his mouth on it. Often Torres touched her
on evenings after they had fought during the day—physically or just verbally, with Torres
cursing at her—because Torres was upset there was a “male presence” around her. When
Gabrielle babysat certain children, Torres would tell Gabrielle’s mother Gabrielle was
sleeping with the father. Gabrielle explained, “He would always accuse me of some type
of sexual act or something like that. Always telling me that I’m wearing clothes to
provoke people, or I’m—I’m trying to have sex with this person or the people that I’m on
the phone with, I’m trying to have sex with.” This confused Gabrielle, whose mother
would “separate us and tell him . . . to calm down, and me to calm down, and to be a
bigger person. She’s like, you know, he gets in his moods.”
Gabrielle explained she would lie on the couch in shock while Torres was
touching her. She did not tell him to stop because she “didn’t really know how to
approach the situation, because that was my dad. . . . [W]ho do you go to when you
argue [with] this person and somebody’s telling you to be the bigger person, like, you
can’t expect somebody to believe that somebody would do that to somebody.”
When Gabrielle was 13 years old, the family moved to St. Louis. Torres
continued to sexually abuse her until he moved out two years later. Although there is
conflicting testimony whether Gabrielle told Krystal about the abuse, Gabrielle did talk
about it with a counselor she began seeing in St. Louis. She also wrote about the abuse in
her journal, but threw the journal away when she was 18 years old as a “letting it go type
thing.” The first time she talked to law enforcement was in 2012 after Krystal reported
her own sexual abuse by Torres to the authorities.
b. Krystal’s testimony
Krystal was seven or eight years old when she, her mother and her sister moved
out of the home they shared with Torres in San Bernardino. Krystal remembered Torres
had touched her vagina over her clothes while he was tickling her, which made her
uncomfortable, before they moved.
Krystal had limited contact with Torres until she was 15 years old when she
moved away from her mother and into the apartment on Gard Avenue. Krystal and
4
Torres argued frequently, and Torres was mean to her. Torres also began touching her at
night while she was sleeping in bed with Gabrielle. Torres pulled down Krystal’s pants
and rubbed in between her vaginal lips. He would sometimes masturbate, and once
ejaculated in her hair. She also testified on one occasion he penetrated her with his penis,
causing her to bleed. Although Krystal saw a doctor the next day, she did not tell her
stepmother or the doctor what had happened because she was afraid Torres might harm
someone in the family. (During the time Torres lived with Krystal’s mother in San
Bernardino, he used to hit Krystal as well as her mother and sister.) Torres kicked
Krystal out of the house after she graduated from high school. Krystal finally reported
the sexual abuse to law enforcement in 2010 because she needed closure and “couldn’t
live with [herself] knowing that [Torres] worked at a school.”
After the People rested, one of the counts of forcible rape of Gabrielle (count 8)
was dismissed for insufficient evidence. (§ 1118.1.)
3. The Verdict and Sentencing
As to Krystal, the jury found Torres not guilty of forcible rape (count 4) and was
unable to reach a verdict on the three counts of forcible penetration with a foreign object
(counts 1, 2 and 3). With respect to Gabrielle, the jury found Torres guilty of two counts
of committing forcible lewd acts on a child under 14 occurring between January 28, 1999
2
and January 28, 2000 (counts 5 and 6), two counts of forcible penetration with a foreign
object occurring between January 28, 2003 and January 28, 2004 (counts 9 and 10) and
one count of forcible oral copulation occurring between January 28, 2003 and January 28,
2004 (count 11). The jury was unable to reach a verdict on one of the counts of forcible
lewd conduct (count 12) and the forcible rape charge (count 7). The jury found not true
the multiple victim allegation.
2 Although the information alleged count 6 was committed between January 28,
2002 and January 28, 2003, the court told the jury the date range for the offense was the
same as that for count 5—between January 28, 1999 and January 28, 2000—and the
verdict forms reflected that date range.
5
After hearing a victim impact statement from Krystal but not Gabrielle, who was
not emotionally able to make one, and considering the probation report, the trial court
sentenced Torres to an aggregate state prison term of 36 years, comprised of consecutive
3
terms of eight years each for counts 5 and 6 (the upper term), eight years for count 9 (the
middle term) and six years each for counts 9 and 10 (the middle term). The court
dismissed counts 1, 2, and 3 in furtherance of justice (§ 1385) because the jury was split
11 to one for acquittal. The People dismissed counts 7 and 12.
DISCUSSION
1. Standard of Review
To assess a claim of insufficient evidence in a criminal case, “we review the whole
record to determine whether any rational trier of fact could have found the essential
elements of the crime or special circumstances beyond a reasonable doubt. [Citation.]
The record must disclose substantial evidence to support the verdict—i.e., evidence that
is reasonable, credible, and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we
review the evidence in the light most favorable to the prosecution and presume in support
of the judgment the existence of every fact the jury could reasonably have deduced from
the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
3 Section 288, subdivision (b)(1), was amended effective September 9, 2010 to
increase the punishment for committing a forcible lewd act on a child under 14 to five,
eight or 10 years. (See Stats. 2010, ch. 219, § 7.) Eight years was the upper term when
Torres committed the offense in 1999.
6
verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357; accord, People v. Manibusan
(2013) 58 Cal.4th 40, 87.)
2. Substantial Evidence Supports Torres’s Convictions for Forcible Penetration
with a Foreign Object and Forcible Oral Copulation; There Is Insufficient
Evidence He Used Duress To Commit Lewd Acts on Gabrielle
a. Governing law
Section 288, subdivision (a), proscribes committing lewd acts upon a child under
4
the age of 14 years. If the lewd act is committed by use of force or duress, it is an
aggravated form of the offense punished under subdivision (b)(1) of section 288. The use
of force or duress also aggravates the offenses of oral copulation (§ 288a, subd. (c)(2))
and sexual penetration with a foreign object (§ 289, subd. (a)(1)(A)).
Force used in this context means physical force that is “‘substantially different
from or substantially greater than that necessary to accomplish the lewd act itself.’”
(People v. Soto (2011) 51 Cal.4th 229, 242; accord, People v. Griffin (2004) 33 Cal.4th
1015, 1027.) Duress means a direct or implied threat of force, violence, danger, hardship
or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to either
perform an act that otherwise would not have been performed or to acquiesce in an act to
which one otherwise would not have submitted. (See People v. Leal (2004) 33 Cal.4th
999, 1004.) Circumstances including the age of the child and his or her relationship to
the defendant should be considered. (See People v. Soto, supra, 51 Cal.4th at p. 246 &
fn. 9); see also CALCRIM Nos. 1015 [oral copulation], 1045 [sexual penetration], 1111
5
[lewd or lascivious act on child under 14 years of age].) “[D]uress is measured by a
4 The elements of the offense are a person touched the body of a child; the child was
under 14 years of age; and the touching was done with the specific intent to arouse,
appeal to, or gratify the lust, passions, or sexual desires of that person or the child. (§
288, subd. (a); see also CALCRIM No. 1110; CALJIC No. 10.41.)
5 The court instructed the jury with CALJIC Nos. 10.10, 10.30 and 10.42, the
predecessors to CALCRIM Nos. 1015, 1045 and 1111. The jury was also instructed with
CALJIC No. 10.41 that committing a lewd act on a child under 14 years is a lesser
included offense of the aggravated crime.
7
purely objective standard”; it is “not dependent on the response exhibited by a particular
victim.” (Soto, at p. 246.)
b. Forcible penetration with a foreign object and forcible oral copulation
when Gabrielle was 12 to 13 years old
Torres contends there was no evidence he used duress when he sexually violated
Gabrielle during the year and one half they lived in the apartment on Imperial Highway—
for example, that he struck her, directly or indirectly threatened her, physically controlled
her or did anything to overcome her resistance, or warned her she would jeopardize the
family if she reported the abuse. Evidence Torres hit Gabrielle or used physical force
greater than that necessary to accomplish his crimes was not required to convict Torres of
the aggravated offenses. Such conduct would qualify as “force.” The People’s theory in
this case was that Torres accomplished his crimes by use of duress, which includes not
only a direct or implied threat of physical harm, but also threat of hardship or retribution.
(See People v. Leal, supra, 33 Cal.4th at pp. 1008-1010 [duress includes threat of
hardship]; see also CALJIC No. 10.30 [sexual penetration must be “accomplished against
a victim’s will by means of duress, or fear of immediate and unlawful bodily injury”]
(italics added).)
Gabrielle’s testimony describing Torres’s treatment of her and the circumstances
under which the family lived in their home on Imperial Highway constituted substantial
evidence supporting a finding of an implied threat of hardship sufficient to coerce a
reasonable 12 year old to acquiesce to Torres’s weekly acts of sexual abuse. Torres,
whom Gabrielle considered a father, was responsible for “watch[ing] the family,”
including Gabrielle’s two autistic siblings, while her mother was at work. Before they
moved to Imperial Highway, Gabrielle and Torres had gotten along well although
Gabrielle saw him act with irrational anger toward Krystal, which confused her. Once
they moved, however, Torres began acting like a jealous boyfriend toward Gabrielle,
accusing her of trying to sexually provoke men. They fought both physically and
verbally, with Torres cursing at her, often triggered when Gabrielle was around other
men, including the fathers of children she babysat. When Gabrielle’s mother witnessed
8
the fights, she would tell Gabrielle—the 12 year old—to be the bigger person because of
Torres’s “moods,” a reaction that inhibited her from telling Torres to stop. It was often
on evenings after daytime fights had occurred that Torres sexually abused Gabrielle.
Because “the focus must be on the defendant’s wrongful act, not the victim’s
response to it,” (People v. Soto, supra, 51 Cal.4th at p. 246), Gabrielle was not required
to testify Torres’s actions caused her to be fearful or directly caused her to acquiesce to
his evening sexual advances. (See People v. Cochran (2002) 103 Cal.App.4th 8, 14
[“fact that the victim testified the defendant did not use force or threats does not require a
finding of no duress; the victim’s testimony must be considered in light of her age and
her relationship to the defendant”].) Measured by the requisite objective standard, the
jury was justified in finding Torres’s behavior created a pervasive and coercive climate of
duress that did not abate simply because the day had turned into evening.
c. Lewd conduct when Gabrielle was nine years old
Although the evidence is at least minimally sufficient to sustain the jury’s finding
Torres used duress to abuse Gabrielle during the time she was 12 or 13 years old, there is
no corresponding evidence of duress when Gabrielle was nine years old and Torres
touched her vagina during the tickling game he played, notwithstanding the power
imbalance between young Gabrielle and the man she considered her father. (See People
v. Hecker (1990) 219 Cap.App.3d 1238, 1251 [while recognizing that “all sex crimes
with children are inherently coercive[,]” the Legislature has determined “that defendants
who compound their commission of such acts by the use of violence or threats of
violence should be singled out for more particularized deterrence”]; accord, People v.
Espinoza (2002) 95 Cal.App.4th 1287, 1321.) To be sure, Torres became “angry and just
weird” after Krystal moved in, but his anger was primarily directed at Krystal. Gabrielle
got along with him, and they played “all the time.” When Torres touched Gabrielle’s
vagina during the tickling game, she stopped playing and “the game was over.” Indeed,
Gabrielle was not even certain for some time that he had done anything wrong. She
testified, “It would just be, you know, oh, ha ha, you’re playing, you’re playing, and all
of a sudden something happens and you touch me, or it was never something that I really
9
thought was—not bad, I’m not saying I condoned it at the same time, but it was always
like maybe I’m not, maybe I’m over-thinking it, or maybe it was something else.” She
also testified, “it didn’t make me feel comfortable.”
No doubt, Torres committed a lewd act when he touched Gabrielle’s vagina,
whether she understood it at the time or not: At some level there were moments she must
have realized this kind of tickling was wrong because she would stop playing. Although
the lewd act was committed as soon as Torres touched Gabrielle’s vagina with the intent
to arouse himself, as the jury necessarily found, she did not acquiesce to the act as a
result of Torres’s use of force or duress as required for a finding of the aggravated form
of the offense. Consequently, we direct the trial court to reverse Torres’s convictions on
counts 5 and 6 and enter a conviction on two counts of the lesser included offense of
committing a lewd act on a child under 14 years of age. (See § 1181, subd. 6 [“[w]hen
the verdict or finding is contrary to law or evidence, but if the evidence shows the
defendant to be not guilty of the degree of the crime of which he was convicted, but
guilty of a lesser degree thereof, or of a lesser crime included therein, the court may
modify the verdict, finding or judgment accordingly without granting or ordering a new
trial”]; see also § 1260 [“court may . . . modify a judgment or order appealed from, or
6
reduce the degree of the offense or attempted offense”].)
6 Torres also contends the trial court committed prejudicial sentencing error when it
allowed Krystal to present a victim impact statement even though the jury had found
Torres not guilty of, or could not reach a verdict on, the charges involving her; relied on
an outdated probation report; and imposed a $240 restitution fine when the minimum fine
applicable at the time of the offenses was $200. We need not address these issues
because we remand the matter for resentencing. On remand the court is directed to order
a supplemental probation report (see Cal. Rules of Court, rule 4.411(c) [“court must order
a supplemental probation officer’s report in preparation for sentencing proceedings that
occur a significant period of time after the original report was prepared”]; Advisory Com.
com., 23 pt. 1B West’s Ann. Codes, Rules (2006 ed.) foll. Rule 4.411(c), pp. 235-236
[“[s]ubdivision (c) is based on case law that generally requires a supplemental report if
the defendant is to be resentenced a significant time after the original sentencing, as, for
example, after a remand by an appellate court, or after the apprehension of a defendant
who failed to appear at sentencing”]; conduct a sentencing hearing that excludes
consideration of Krystal’s victim impact statement; and assess a restitution fine in
10
3. Substantial Evidence Supports Torres’s Convictions on Two Counts of
Committing Lewd Acts upon a Child and Two Counts of Forcible Penetration
with a Foreign Object
Young victims of “resident child molester[s],” that is parents or other people
living in the home who commit multiple sexual offenses, “may have no practical way of
recollecting, reconstructing or identifying by ‘specific incidents or dates’ all or even any
such incidents.” (People v. Jones (1990) 51 Cal.3d 294, 305 (Jones).) Consequently, to
balance the defendant’s “legitimate due process rights” (id. at p. 313) with the need to
ensure “the resident child molester is not immunized from substantial criminal liability
merely because he has repeatedly molested his victim over an extended period of time”
(id. at p. 305), “nonspecific or ‘generic’” testimony may constitute sufficient evidence of
multiple sexual offenses if certain criteria are met: “The victim, must describe the kind of
act or acts committed with sufficient specificity, both to assure that unlawful conduct
indeed has occurred and to differentiate between the various types of proscribed conduct
(e.g. lewd conduct, intercourse, oral copulation or sodomy)[;] . . . the number of acts
committed with sufficient certainty to support each of the counts alleged in the
information or indictment (e.g., ‘twice a month’ or ‘every time we went camping’)[; and]
. . . the 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. Additional details
regarding the time, place 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.” (Id. at p. 316.)
accordance with former section 1202.4, subd., (b)(1), in effect at the time Torres
committed the offenses. (See People v. Klatt (2014) 225 Cal.App.4th 906, 921 [“Under
the version of the statute applicable at the time of his offenses, the statutory minimum
restitution fine for a felony conviction was $200. (Former § 1202.4, subd. (b)(1) as
amended by Stats. 1994, 1st Ex. Sess. 1994-1995, ch. 46, § 4, p. 8755.) (Former
§ 1202.4, subd. (b)(1), Stats. 1994, ch. 46, § 4.) The Legislature later raised the
minimum amount to $240, starting January 1, 2012. (§ 1202.4, subd. (b)(1), Stats. 2011,
ch. 358, § 1.)”].)
11
Conceding that touching Gabrielle’s vagina while he was tickling her was a lewd
act, Torres contends there was insufficient evidence he did it more than once (counts 5
and 6). He argues Gabrielle merely stated they repeatedly played the tickle game, not
that he touched her vagina during the game more than once. (See People v. Davis (2013)
57 Cal.4th 353, 360 [factual finding must be inference drawn from evidence not mere
speculation as to probabilities without evidence].) Torres’s portrayal of Gabrielle’s
testimony is distorted. Read in context, it is clear Gabrielle testified Torres touched her
vagina on more than one occasion during the tickle game. After explaining Torres would
stop touching her vagina if she moved away, the prosecutor asked, “How often would
that happen when you were age nine?” Gabrielle responded, “Whenever we were at the
house . . . just playing. We would play all the time. Like I said, I got along with him and
we were close, and we would always just play around with each other. I couldn’t give
you an exact amount of times, but it was like a progression, a slow progression.” Indeed,
based on Gabrielle’s testimony, the People showed great restraint in charging Torres with
only two counts of committing a lewd act during that period.
Similarly without merit is Torres’s argument there was insufficient evidence of
two counts of forcible penetration with a foreign object when Gabrielle was 12 or
13 years old (counts 9 and 10). Gabrielle testified Torres sexually abused her about once
a week during the year and a half they lived in the apartment on Imperial Highway.
Although she described each incident as “different”—sometimes he would put his fingers
inside her vaginal lips or kiss her or rub his penis against her buttocks—her testimony
was sufficient to support the inference he penetrated her with his finger on at least two
7
occasions during this period of weekly sexual abuse. After the prosecutor asked
Gabrielle to describe Torres’s “use of fingers on your vagina,” the following exchange
occurred from which it is clear Gabrielle was describing multiple incidents:
7 Sexual penetration with a foreign object includes penetration of the labia majora
with a finger. (See People v. Quintana (2001) 89 Cal.App.4th 1362, 1366, 1371; § 289,
subd. (k)(1), (2).)
12
“A: [H]e would come into the room and, you know, touch on me. And then he
would try to put his finger like that but then I would move. I would always move,
because I noticed that it would, you know, make him jump up. But sometimes he
wouldn’t; he’d like move a little bit, but then he’d—like his hand would stay there . . . .
It didn’t make sense to me because I was asleep, but it was my way of—
“Q: Now, I see when you said sleep you put your fingers up in the air like air
quotes. Were you pretending to be asleep?
“A: I could never go to sleep.
[¶] . . . [¶]
“Q: How far would he get with his fingers?
“A: In between—he would go in between the—I guess the lips and the vaginal
opening.”
That Torres penetrated her vaginal lips with his fingers more than once is further
supported by the immediately following testimony during which Gabrielle volunteered
Torres had orally copulated her only once. The prosecutor asked, “Did he ever use his
mouth on you?” Gabrielle replied, “My pants would be down and he’d push my butt up,
and like my legs like this, and then he would put his mouth on me. He only did that one
time though.”
Considered in toto Gabrielle’s testimony was sufficient to meet the standard
promulgated by the Jones Court for finding Torres guilty of at least two counts of sexual
penetration with a foreign object. Gabrielle described the type of conduct involved
(penetration with his finger), its frequency (on some occasions during the year and one-
half course of weekly incidents) and the fact such conduct occurred during the limitations
period (when she was between 12 and 13 years old). “Nothing more is required to
establish the substantiality of the victim’s testimony in child molestation cases.” (Jones,
supra, 51 Cal.3d at p. 316; cf. People v. Matute (2002) 103 Cal.App.4th 1437, 1447,
1449 [victim’s testimony her father “continuously forced sexual intercourse on her from
the time she was 12 until she was 16, until he was arrested”—up to several times a
week—was sufficient to support 15 counts of forcible rape, a number of counts
13
prosecutor described as “rather conservative . . . [o]ne count for each month that [J.M.
suffered rapes at the hands of . . . her father”].)
DISPOSITION
The judgment is reversed with respect to the convictions on counts 5 and 6, and
the court directed to enter a guilty verdict on two counts of the lesser included offense of
committing a lewd act on a child under 14. The other convictions are affirmed. The
matter is remanded for resentencing, including assessment of the restitution fine.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
14