People v. Mendoza-Heredia CA4/3

Filed 7/27/22 P. v. Mendoza-Heredia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G060001

v. (Super. Ct. No. 17CF2807)

ALFREDO MENDOZA-HEREDIA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed. Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, A. Natasha Cortina, Acting Assistant Attorney General, Eric A. Swenson and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Alfredo Mendoza-Heredia was charged and convicted of ten counts of child molestation involving the daughter of his longtime girlfriend and the daughter’s cousin. The testimony at trial revealed he regularly abused both victims over several years. The jury was given a unanimity instruction as to all counts except for count six, which related to oral copulation. On appeal, Mendoza-Heredia argues the court erred by failing to give the instruction on count six. We conclude that any such error was harmless. Based on the evidence and arguments presented at trial, there is no rational basis to conclude the jury could have found some acts of oral copulation occurred but others did not. As such, we affirm the judgment.

I FACTS AND PROCEDURAL HISTORY A. The Charges In February 2018, Mendoza-Heredia was charged with ten counts of child molestation pertaining to two victims. As to the first victim, M.L., he was charged with six counts occurring between May 3, 2011, and May 2, 2017. Five of these counts were for committing forcible lewd acts on a child under 14 years old (§ 288, subd. (b)(1)), including touching her vagina over clothing (count one), touching her vagina on the skin (count two), touching her breasts (count three), causing her to touch his penis (count four), and putting his mouth on her vagina (count five). Count six was for aggravated sexual assault on a child involving oral copulation (§ 269, subd. (a)(4)). Mendoza-Heredia was charged with four counts relating to the second victim, K.C., occurring between October 21, 2007, and October 20, 2013. Three were for committing lewd acts on a child under 14 years old (§ 288, subd. (a)), including touching her vagina over clothing (count seven), touching her vagina on skin (count eight), and touching her breasts (count nine). Count ten was for attempted lewd act on a child under 14 years old, involving placing his penis on the victim’s mouth (§§ 288, subd. (a), 664).