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People v. Cadena

California Court of Appeals, Second District, First Division

August 27, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
BONIFACIO CRUZ CADENA, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

          APPEAL 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.

          Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier 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.

         A jury 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).)[1] 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.

         Defendant 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 hearing.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 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.

         During 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].”[2] 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.

         G. and 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.

         Mario 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.

         Defendant 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.

         More than one year after defendant last touched the girls, G. told a tutor at her middle school about the incidents.[3] The tutor informed child protective services personnel, who contacted the police.

         During 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.”

         G. and 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.”

         Dr. 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.

         Defendant 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.

         Defendant's 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.

         A jury 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) & (e).)

         According 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.

         The 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.”

         The 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.

         Defendant timely appealed.

         DISCUSSION

         I. No Substantial Evidence Supported Two of the Lewd Conduct Counts

         Defendant 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.

         Subdivision (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.)

         “In 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.)

         Here, 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.

         In 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 ...


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