California Court of Appeals, Second District, First Division
FOR PARTIAL PUBLICATION [*]
from a judgment of the Superior Court of Los Angeles County,
No. KA112281 Robert M. Martinez, Judge. Affirmed in part and
reversed in part with directions.
Kahn, under appointment by the Court of Appeal, for Defendant
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney
General, Scott A. Taryle, and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
convicted defendant Bonifacio Cruz Cadena of six counts of
lewd acts upon a child: three acts against each of his two
nieces. (Pen. Code, § 288, subd. (a).) The jury also
found true the special circumstance allegation that he
committed the acts against more than one victim. (§
667.61, subds. (b) & (e).) Pursuant to the “One
Strike” law (§ 667.61), the trial court sentenced
him to an aggregate term of 30 years to life in state prison,
consisting of consecutive 15 years-to-life terms on two
counts-one for each victim-and concurrent 15-years-to-life
terms on the remaining four counts.
contends the following: (1) There was no substantial evidence
to support the finding that he committed more than two lewd
acts on each victim; (2) His sentence violates the
constitutional prohibition against cruel or unusual
punishment; (3) His counsel was constitutionally deficient
for failing to object to expert witness testimony on child
sexual abuse accommodation syndrome; (4) The trial court
should be afforded an opportunity to strike the multiple
victim enhancement; and (5) The trial court miscalculated his
presentence custody credit. We agree that the evidence
supported findings as to only two lewd acts on each victim
and that his sentence is unconstitutionally excessive. We
therefore vacate the convictions on two counts, reverse the
judgment, and direct the court to hold a new sentencing
AND PROCEDURAL BACKGROUND
2014, defendant was 44 years old and married with two
children. The four of them shared an apartment with
defendant's sister, his sister's husband (Mario), and
their five children, including twin sisters G. and M. All
seven children slept in the living room, with G. and M.
sharing a bed.
the summer of 2014, when G. and M. were 11 or 12 years old,
the girls would sometimes wake up around 3:00 a.m. to see
defendant near their bed. Once, M. awoke to find defendant
removing a blanket that covered her. Defendant told her that
he was trying to kill a bug he had seen. On other occasions,
G. and M. would awaken and find defendant touching them over
their clothes on their stomachs or their
“vagina[s].” This made G. feel
“uncomfortable” because she had “never been
touched there.” M. also felt “uncomfortable,
” as well as “confused” because defendant
had “always [been] respectful” toward them.
M. conferred and learned that defendant had touched the other
in the same way. They told their father, Mario, who then
installed an inconspicuous video camera on the girls'
bed. The camera subsequently recorded video of someone's
arm and a hand touching and rubbing M. on top of her clothes
in her pubic area for about 12 seconds. The video does not
show the perpetrator's face. At trial, Mario said he
recognized the arm in the video as defendant's.
confronted defendant and asked, “Why was he molesting
[Mario's] children?” According to Mario, defendant
initially denied the accusation, but ultimately admitted to
touching the girls, asked Mario to forgive him, and promised
“that he was not going to do that anymore.” Mario
agreed to forgive him.
continued to live in the apartment with the others, and did
not touch the girls again. For a while, G. did not
“really talk” to defendant. But they eventually
began talking again.
than one year after defendant last touched the girls, G. told
a tutor at her middle school about the
incidents. The tutor informed child protective
services personnel, who contacted the police.
a police interview, defendant admitted he had touched the
girls on their legs or their vaginas one or two times, and
only over their clothes. When asked why he touched them,
defendant stated: “I didn't have any intention of
doing harm or anything, just, I don't know, the devil
came to my mind. I don't know.” He stated that he
regrets his actions and that he had asked Mario for
forgiveness and said it would not happen again, and it has
not. He and the girls, defendant stated, now talk and
“get along well.” Defendant added that he has
“changed” and “it won't happen, not
even with any other person.”
M. testified about the touching incidents at trial. G. said
that defendant touched her on her stomach or vagina
“two to three times.” M. testified he touched her
stomach and vagina “like, three or two times.”
She described the touching as grabbing or rubbing. G. also
said that defendant “hadn't done anything to
[them]” since Mario confronted him, and
“everything was fine.” M. testified that she felt
conflicted about the criminal prosecution because although
defendant “did a wrong, ” he “knew he did a
wrong, ” and he “accepts it.”
Jayme Jones, an expert on child sexual abuse, testified that
child sexual abuse accommodation syndrome (CSAAS) is a model
that provides insight into why children do or do not disclose
sexual abuse. Dr. Jones described five components of CSAAS:
(1) express or implied secrecy concerning the incident; (2)
the child's helplessness; (3) accommodation of the abuse;
(4) delayed or partial disclosure; and (5) recanting. Dr.
Jones did not interview G., M., or any of the witnesses in
the case, and did not offer any opinion as to whether G. or
M. was a victim of sexual abuse.
testified at trial that he did not touch the “private
areas” of G. or M. He said he admitted doing so during
the police interrogation because he understood it would help
him “when [he went] to see the judge.” The hand
that is shown in the video recording of someone touching M.,
he stated, was not his hand.
wife, children, and parents testified that defendant is a
youth leader in their church, is respected by others, treats
others with respect, and has never shown any tendency to
touch children in a sexual manner. He has worked with
children in a church choir for about 10 years and no one has
alleged that he molested any of the children.
found defendant guilty of six counts of lewd acts upon a
child and found true the special circumstance allegation that
he committed the acts against more than one victim. (Pen.
Code, §§ 288, subd. (a), 667.61, subds. (b) &
to a probation officer's report submitted in connection
with the sentencing hearing, defendant had been convicted in
1991, when he was 21 years old, of driving under the
influence of alcohol, and driving with a suspended license.
(Veh. Code, §§ 14601.1, subd. (a), 23152, subds.
(a) & (b).) Defendant had no other criminal history prior
to the convictions in this case.
probation report includes a statement by Mario to the
probation officer “that he, his daughters, and his
family have forgiven the defendant” and that “the
defendant should not go to prison.” Mario added that
“his daughters have had an evaluation and two
counseling sessions and both are fine.”
trial court sentenced defendant under the One Strike law
(§ 667.61) to an aggregate term of 30 years to life in
state prison, consisting of consecutive 15-years-to-life
terms on two counts, one for each victim, and concurrent
15-years-to-life terms on the remaining four counts.
No Substantial Evidence Supported Two of the Lewd Conduct
was convicted of three counts of lewd conduct involving each
child, for six total counts. Yet G. and M. testified that
each child was only touched “two or three” times,
or “two to three” times. Defendant contends
evidence that he touched the children two or three times each
does not support a conviction for touching either one a third
time. The Attorney General does not appear to disagree, but
argues additional evidence supported the convictions.
(a) of section 288 makes it a felony to “willfully and
lewdly commit any lewd or lascivious act... upon or with
the body, or any part or member thereof, of a child who is
under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child.” “The
elements of section 288, subdivision (a) are: (1) a lewd
touching[, ] (2) of a child under 14 years of age[, ] (3)
with the intent of sexual arousal.” (People v.
O'Connor (1992) 8 Cal.App.4th 941, 947.)
considering a claim of insufficiency of evidence, a reviewing
court must determine ‘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.' ” (People v. Earp (1999) 20
Cal.4th 826, 887.) To support each count of lewd and
lascivious conduct alleged in an information, the
“victim... must describe the kind of act or acts
committed” and “the number of acts
committed with sufficient certainty... (e.g., ‘twice a
month' or ‘every time we went camping').”
(People v. Jones (1990) 51 Cal.3d 294, 316.)
because testimony by the girls that defendant touched each of
them two or three times is certain as to only two instances
of unlawful conduct, not three, it supports convictions on
only two counts each. For the jury to have found defendant
guilty of a third count of lewd conduct as to either G. or M.
there had to have been other evidence of such conduct.
addition to G. testifying that defendant touched her stomach
or vagina “two or three” times, M. testified that
she saw defendant “like, reaching over my, like, twin
sister, I guess, trying to touch her or something.” The
Attorney General argues that this testimony supports
defendant's conviction on a third count for committing a
lewd act upon G. We disagree. It is unclear whether M. was
describing one of the two instances of lewd touching that G.
had already related or a third instance. And M. did not
testify that defendant actually touched G., only that he was
“trying” to touch her “or something.”
Even if he had ...