California Court of Appeal Mar 18, 2016 No. E062209Unpublished
Filed 3/18/16 P. v. Gutierrez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062209
v. (Super.Ct.No. INF1300505)
LUIS ANGEL GUTIERREZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Rafael A. Arreola, Judge.
(Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed with directions.
Alan S. Yockelson for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Luis Angel Gutierrez of one count of unlawful sexual
intercourse with a person 10 years of age or younger (Pen. Code1 § 288.7, subd. (a);
count 1), two counts of committing a lewd and lascivious act upon a child under the age
of 14 years (§ 288, subd. (a); counts 2 and 3), and two counts of misdemeanor child
molestation (§ 647.6, subd. (a); counts 4 and 5). Defendant (born in 1947) was charged
with and convicted of offenses against two minor victims, sisters referred to in our record
as Jane Doe (born in 2001; counts 1, 2, and 3) and Mary Doe (born in 1998; counts 4 and
5). The trial court imposed an indeterminate sentence of 25 years to life in state prison
with respect to count 1, as well as an aggregate determinate sentence of eight years on the
remaining counts, to be served concurrently.
On appeal, defendant raises five claims of error, arguing that: (1) the trial court
abused its discretion by admitting evidence of four uncharged sexual offenses against
Mary Doe; (2) the evidence in support of one of defendant’s convictions under section
647.6 was insufficient; (3) the court gave the jury conflicting instructions with respect to
the motive element of the section 647.6 offenses; (4) the evidence in support of
defendant’s conviction under section 288.7, subdivision (a), was insufficient; and (5) the
abstract of judgment and the minute order of the sentencing hearing do not accurately
reflect the trial court’s oral pronouncement of sentence. The People concede that the
abstract of judgment and minute order should be corrected, and we agree. We affirm the
judgment in all other respects.
1 Further undesignated statutory references are to the Penal Code.
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I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was a long-time friend of the family of the two victims. Jane Doe
testified at trial that on a morning in 2011, when she was nine years old, she was left
alone in the family home with defendant, who had spent the night there. She was
sleeping in her sister’s bedroom when defendant entered the room shirtless, took off his
shorts, and lay down next to her. He took off her shorts, and put his arms around her. He
pulled her underwear down by the waistband, and she felt “his private part . . . [o]n [her]
private part.” She saw him hold his “private part” with his hand “towards [her],” and felt
it moving and rubbing against her “private part” skin to skin. She specified that by
“private part” she meant the part of the body that “pee” comes from. She felt “pressure”
from the rubbing, but when asked by defense counsel to clarify that defendant never
“stuck his private part inside [her] private part,” she responded: “Just on the top.” She
agreed that the rubbing was “[j]ust around on the outside.” When asked whether she
“could feel his private part up against the area on [hers] where the pee comes from,” she
responded “No.” When asked whether the rubbing was “inside or outside of that,” she
answered: “It was outside.” Defendant eventually ejaculated, after which Jane Doe “ran
to the restroom and locked it.”
Jane Doe also testified at trial that, in approximately the same time frame—at trial,
she could not remember whether it was a separate incident—defendant had held her
down and licked one of her breasts.
In addition to Jane Doe’s trial testimony, the jury also heard an audio recording,
made by her parents, of her initial disclosure of the abuse to them. On the recording, Jane
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Doe responds in the affirmative when her father asked her (in Spanish) “did he put
something in your private area?” Later in the recording, Jane Doe says “He put
something in my private parts.”
A nurse forensic examiner testified as an expert witness on behalf of the
prosecution. In response to a hypothetical question, she opined that a child who
described rubbing and a feeling of pressure against “the hole where the pee comes from”
would likely be referring to the opening of the vagina, an area that is “past the external
genitalia,” that is, beyond the labia majora.2 She also discussed a form of conduct,
described by analogy to a hot dog in a bun, where there is sexual contact beyond the labia
majora, but without penetration into the vagina.
After Jane Doe disclosed the abuse to her parents, Mary Doe disclosed that
defendant had also touched her inappropriately several times. She testified at trial that
one such incident occurred when she was in the sixth grade. She was getting into the
passenger seat of a car, while defendant was sitting in the driver’s seat. As she did so, he
“put his hand on [her] upper thigh close to [her] private area.” Defendant’s fingers were
“close to being in between [her] legs.” She felt “very uncomfortable,” but did not say
anything. She estimated that defendant moved his hand away after less than 10 minutes:
as Mary Doe described it at trial, eventually “he looks down, and I looked down, and
that’s when he moved his hand.”
2 “The external female genitalia are referred to as the ‘vulva’ and ‘“include the labia majora, labia minora, clitoris, and vestibule of the vagina.”’” (People v. Quintana (2001) 89 Cal.App.4th 1362, 1371.)
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On another occasion, when Mary Doe was about 13 years old, defendant and his
wife came to the victims’ family’s house to play a game. Mary Doe was not interested in
playing, and went to her parents’ bedroom to lie down. A few minutes later, defendant
came into the room and, after a conversation, Mary Doe reluctantly agreed to come out to
play. As she attempted to leave the room, defendant blocked the doorway, and as she
tried to push past him, he kissed her on the mouth. Mary Doe testified that the kiss
involved only lips, no tongue, but it “was something [defendant] shouldn’t have done. It
was not a greeting kiss.” When defendant stopped, Mary Doe went past him, and sat
down at the table where the families were playing the game. But shortly thereafter, she
went to the bathroom to cry, and to clean her mouth.
In addition to the charged offenses, described above, Mary Doe testified regarding
four uncharged sexual offenses by defendant. On one occasion, at defendant’s house, the
then 12-year-old Mary Doe asked defendant why he took so many medications, after
observing him take some pills. Defendant responded by taking her into the master
bedroom, having her close the door, and then lowering his pants past his groin—
purportedly to show her a scar, but in the process exposing his penis to her.
Mary Doe also testified regarding another incident, when she was between 11 and
13 years old, when she was riding in defendant’s car, and told him that she could not wait
until she could drive. Defendant told her that he could show her how to drive. He pulled
the car over, and sat her on his lap in the driver’s seat; he continued to control the car
with his legs, and they both had their hands on the steering wheel. When they travelled
over a speed bump, Mary Doe was discomforted by the way defendant pushed up into
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her. Also, before arriving back home, defendant stopped the car, and lifted her off his lap
and onto the passenger seat. Instead of lifting her, for example, with his hands under her
arms, he did so initially with his hands around her rib cage; he then “slid his hands up to
[her] breasts,” and lifted her to the passenger seat with his fingers covering her breast
area.
On another occasion, the victims’ family and defendant’s family had travelled
together to Las Vegas, and were staying in adjoining hotel rooms. Mary Doe was
sleeping on a pullout couch with her sisters, and woke up at about 3:00 a.m. to find
defendant sitting at a table watching them sleep. A few hours later, defendant woke
Mary Doe up, asking if she wanted to watch a World Cup soccer game that was on
television with him. She agreed. Mary Doe was wearing a tank top, and as her attention
was on the game, she felt defendant kiss her bare shoulder—more than just a “peck on
someone’s shoulder,” because she felt wetness and saliva.
The fourth uncharged incident occurred at defendant’s house. Mary Doe walked
past defendant, who was sitting on a couch; as she did so, he slapped her on the bottom.
Defendant’s trial was held over two days in August 2014. The jury returned its
verdict, finding defendant guilty on all five charged counts, on August 18, 2014. The
trial court sentenced defendant on September 22, 2014. It imposed the mandatory
indeterminate sentence of 25 years to life with respect to count 1. It also imposed a six-
year prison term for count 2 and two years for count 3, with the sentence for count 3 to be
served consecutive to count 2. Both of these determinate sentences, however, were
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ordered to run concurrent to the indeterminate sentence for count 1. The court also
imposed 365-day sentences for both count 4 and count 5, both to run concurrently.
II. DISCUSSION
A. The Evidence of Uncharged Sexual Offenses Was Properly Admitted.
Defendant contends that the trial court abused its discretion by admitting Mary
Doe’s testimony regarding the four uncharged sexual offenses, arguing that “the acts she
testified to were not objectively offensive and the prosecution presented no evidence that
the acts were sexually motivated . . . .” We find no abuse of discretion.
Character or disposition evidence is generally inadmissible to prove a defendant’s
conduct on a specified occasion. (Evid. Code, § 1101, subds. (a), (b).) Evidence Code
section 1108 creates an exception: “In a criminal action in which the defendant is
accused of a sexual offense, evidence of the defendant’s commission of another sexual
offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the
evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code,
§ 1108, subd. (a).) To be admissible pursuant to Evidence Code section 1108, the
uncharged misconduct must constitute one of the sexual offenses enumerated in Evidence
Code section 1108, subdivision (d)(1). “The trial court must make a preliminary
determination of whether the proffered evidence is sufficient for the jury to find, by a
preponderance of the evidence, that the defendant committed an enumerated offense.”
(People v. Jandres (2014) 226 Cal.App.4th 340, 353.)
As relevant here, annoying or molesting a child under Penal Code section 647.6 is
one of the offenses specified in Evidence Code section 1108. (Evid. Code, § 1108, subd.
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(d)(1)(A).) A violation of Penal Code section 647.6, subdivision (a) requires proof of the
following elements: “(1) the existence of objectively and unhesitatingly irritating or
annoying conduct; (2) motivated by an abnormal sexual interest in children in general or
a specific child; (3) the conduct is directed at a child or children, though no specific child
or children need be the target of the offense; and (4) a child or children are victims.”