THE PEOPLE, Plaintiff and Respondent, BENJAMIN ROJAS, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. No. F11904625 W. Kent Hamlin, Judge.
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Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
A Fresno County jury found Benjamin Rojas guilty of sexually abusing his young stepdaughter in violation of Penal Code sections 288.5 and 288.7 (all further statutory references are to the Penal Code). Rojas was sentenced to 40 years to life in prison pursuant to section 288.7, subdivisions (a) and (b). A 12-year prison term was imposed for the section 288.5 conviction and stayed pursuant to section 654.
Appellant’s claims fall into three general categories: instructional error, procedural error, and sentencing error. With respect to instructional error, his briefs contain multiple arguments stemming from the trial court’s use of a modified version of CALCRIM No. 207. We address these arguments in turn as they pertain to each of his three counts of conviction. The claims of procedural error and sentencing error are moot in light of our conclusion that the conviction under section 288.7, subdivision (a) must be reversed. However, this partial reversal of the judgment invalidates the stay that was ordered
pursuant to section 654. We therefore remand the matter for resentencing on the section 288.5 conviction. The judgment is otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Rojas was charged by information with oral copulation or sexual penetration of a child under the age of 10 years (§ 288.7, subdivision (b); Count 1), sexual intercourse or sodomy with a child under the age of 10 years (§ 288.7, subdivision (a); Count 2), and continuous sexual abuse of a child under the age of 14 years (§ 288.5; Count 3). Each offense involved Rojas's stepdaughter, who was born in December 2002. As pleaded in the information, count 1 (Count 1) occurred “[o]n or about August 6, 2011, ” when the victim was eight years old. Counts 2 and 3 allegedly occurred “[o]n or about December 1, 2006 through August 5, 2011, ” when the victim was between the ages of four and eight. Rojas was between 35 and 40 years old during the relevant time period.
All charges were tried before a jury in March 2013. Given the nature of the issues raised on appeal, we will provide an abbreviated summary of the underlying facts. Additional information concerning the claims of instructional error is provided in the Discussion.
On or about August 6, 2011, Rojas’ wife awoke in the middle of the night and found herself alone in bed. After getting up and searching through the house, she located Rojas in her daughter’s room. He was naked, and her daughter was clothed only from the waist up. According to the mother’s trial testimony, the child accused Rojas of touching her vaginal area with his fingers. She also said that Rojas had previously molested her “a few times.” A witness who spoke to Rojas’ wife two days after the incident recalled that she claimed the victim told her Rojas had “used his mouth” while touching her.
The victim was questioned by police and interviewed by professionals who specialize in investigating allegations of sexual abuse. She told police that Rojas penetrated her using his fingers and penis on the night her mother walked in on them. The victim also reported that Rojas had abused her in a similar fashion approximately 10 times, beginning when she was ...