People v. Torres CA2/1

Filed 10/30/13 P. v. Torres CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B242735

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA095414) v.

JOSE NAPOLEON TORRES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Steven D. Blades, Judge. Affirmed. ______ Eber N. Bayona for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent. ______

An information, dated December 1, 2011, charged Jose Napoleon Torres with three counts: (1) sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a)1) (count 1); (2) commission of a lewd act on a child under the age of 14 years (§ 288, subd. (a)) (count 2); and (3) continuous sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a)) (count 3). After trial, the jury found Torres guilty on count 2, but not guilty on counts 1 and 3. The trial court sentenced Torres to a state prison term of six years, the midterm punishment for a violation of section 288, subdivision (a). Torres appealed, contending (1) the evidence is insufficient to support his conviction on count 2; (2) the trial court erred by failing to give a unanimity instruction; and (3) the trial court did not properly state on the record its sentencing reasons. We reject his contentions and thus affirm the judgment. DISCUSSION 1. Substantial Evidence Supports Torres’s Conviction on Count 2 In reviewing a challenge to the sufficiency of the evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citation.]” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.) Substantial evidence is that which is “reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Torres contends the evidence is insufficient to support his conviction on count 2 for committing a lewd act on a child under the age of 14. We disagree. According to the evidence, viewed in the light most favorable to the judgment, on January 6, 2011, Joanna, who was 10 years old, was a foster child living in the home Torres shared with his wife and adopted son. Luis and his sister Jennifer, two other foster children, also lived in the home at the time. On the afternoon of January 6, when Torres’s wife was at work,