Filed 1/9/20 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEX LOPEZ,

Defendant and Appellant.

F076526

(Super. Ct. No. VCF306882)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Alex Lopez appeals from his convictions on 22 counts of lewd conduct with a minor. Lopez argues one of the counts of conviction was time barred and another conviction was not supported by substantial evidence. We agree and reverse both of these convictions. The judgment is otherwise affirmed.

FACTS AND PROCEDURAL HISTORY

Lopez was charged, in a second amended information, with 22 counts of lewd conduct with a minor. (Pen. Code, § 288, subd. (a).) The information included, as to all counts (except counts 7 and 8), allegations of substantial sexual contact under section 1203.066, subdivision (a)(8). The information also alleged, as to all counts, that Lopez committed the offenses against multiple victims, thereby triggering the enhanced penalties specified in the One Strike Law. (§ 667.61, subds. (b) & (e).) A jury convicted Lopez on all counts and found the enhancement allegations to be true. Lopez was sentenced to a separate term of 15 years to life on each count, for a total term of 330 years to life.

The charges against Lopez were based on his molestation of five children in his extended family, specifically four nieces and one nephew (all by marriage). Four of these children—B, Br., K, and N—were siblings and the children of a sister of Lopez’s wife. The fourth child, T, was the daughter of another sister of Lopez’s wife. The molestation came to light years after it occurred. Consequently, all but one of the complaining witnesses were adults at the time of trial; the remaining complaining witness was a teenager.

The parties have detailed in their briefs the evidence adduced at trial. However, since most of the issues in this appeal do not turn on the trial evidence, we will not repeat the facts here. To the extent the record evidence is relevant to the resolution of a claim, we will summarize the pertinent facts in the section addressing that claim.

DISCUSSION

I. Time-Barred Count (Count 8)

Lopez was charged in count 8 with lewd conduct (“hand to breast”) with T. Count 8 was the sole count involving T, whose date of birth was July 1984. The information alleged the conduct at issue in count 8 occurred between July 16, 1994, and July 15, 1995. T testified at trial that when she was nine or 10 years old, Lopez touched her breasts with his hands. The jury was instructed, and the prosecutor argued in closing, with respect to count 8, that Lopez molested T between July 16, 1993, and July 15, 1995. The People acknowledge that while Lopez was charged in the information with molesting T between July 16, 1994, and July 15, 1995, “the beginning of the range was ultimately extended to July 16, 1993, to conform with the evidence presented at trial.”

Lopez argues his conviction on count 8 must be reversed because this count was time barred. The People concede the point. We agree with the parties and reverse the conviction.

As an initial matter, the parties agree that the basic statute of limitations applicable to section 288, subdivision (a) offenses is six years. (See People v. Ortega (2013) 218 Cal.App.4th 1418, 1428 (Ortega).) The parties also concur that, when an offense is alleged to have occurred within a range of dates as opposed to a specific date, the statute of limitations runs from the earliest point at which the offense was potentially committed. (People v. Simmons (2012) 210 Cal.App.4th 778, 789; accord Ortega, supra, at p. 1432.) Furthermore, the People candidly acknowledge that the basic six-year statute of limitations applicable to the offense charged in count 8 expired on July 16, 1999.

Effective January 1, 2001, the Legislature enacted an alternative limitations period for specified sex crimes, including section 288, subdivision (a) offenses. This alternative scheme extended to 10 years, the limitations period applicable to section 288, subdivision (a) offenses, so long as the basic six-year limitations period had not expired as of January 1, 2001. (Ortega, supra, 218 Cal.App.4th at pp. 1428-1429.) The alternative limitations period does not apply here since, as the People concede, “as to count 8, the [basic six-year] statute of limitations expired on July 16, 1999, prior to the [subsequent] extension of the limitations period.”

Lopez’s conviction on count 8 is reversed. Our conclusion renders moot Lopez’s secondary argument that his sentence on count 8 was prohibited by the ex post facto clauses of the United States and California Constitutions.

II. Sufficiency of Evidence as to Count 10

Lopez was charged, in counts 9 and 10, with lewd acts on N. Lopez contends the evidence was sufficient to support only one conviction for a lewd act on N, necessitating reversal of his conviction on count 10. We agree with Lopez that the evidence supports only one conviction for a lewd act against N. Accordingly, we reverse Lopez’s conviction on count 10.

A. Background

The evidence supporting counts 9 and 10 consisted of the respective testimony of N and a police officer who had elicited, in 2014, a pretrial statement from N.

N was born in 1990 and was 27 years old at the time of trial in 2017. She testified Lopez molested her when she was “probably like seven maybe” and would spend the night at Lopez’s house (Lopez was married to, and lived with, N’s aunt). N explained: “I remember being asleep in their living room … [¶ ] … and I woke up and I saw him to the right, and he was sitting – and he was watching us sleeping. My sister and my cousin were also sleeping … [¶ ] … And I fell back asleep and then I woke up again, and he – I saw his face over me, and he was – he was touching me.” N and the prosecutor then had the following exchange:

“Q. Okay. And what part of his body was touching you?

“A. His hand on my vagina.

“Q. And what, if anything, did you do when you woke up and found his hand on your vagina?

“A. I was kind of in and out of sleep. I closed my eyes, and I think I fell back asleep.

“Q. And did you say anything to him at that time?

“A. I did not, no.

“Q. Did he say anything to you at that time?

“A. No.

“Q. And can you describe what his hand was doing to your vagina?

“A. He was touching me, but I can’t really remember, like exactly what he was doing –

“Q. Okay. So –

“A. – ‘cause I was asleep.

“Q. – do you remember if his fingers were inside your vagina or outside?

“A. I don’t remember exactly, no.

“Q. Was he touching your skin or your – on the outside of your clothing?

“A. I don’t remember.

“Q. And how many times did that happen to you when you were a child?

“A. That was the one time I can remember for sure.

“Q. Okay. And now, do you remember other times that it happened without knowing a lot of details?

“A. It would – it would mostly be I would wake up and felt like something happened when I was asleep, but I couldn’t remember exactly what happened.

“Q. Okay. And the times that you were – these times – sorry, I think you just said it, but these times that you would wake up, you had previously been asleep?

“A. Right.”

[¶ ] … [¶ ]

“Q. [D]o you remember talking to the detective over the phone and telling her that it happened on more than one occasion where – when you would spend the night at your uncle’s house?

“A. I think I told her what I told you, that I felt like something had happened, but that was the one time – there was a one time that I – I remember waking up and seeing him.

“Q. Okay. So you have that one clear, like very vivid memory of that happening?

“Q. Yeah, right.

“A. And then other times that –

“Q. Yeah, very vague because I was sleeping.”

The police officer who had taken a pretrial statement from N also testified. This police officer had the following exchange with the prosecutor:

“Q. And did [N] indicate to you that something had happened between her and Alex Lopez?

“A. Yes.

“Q. And approximately how old was she when that happened?

“A. About six, seven years old.

“Q. Okay. And what did she tell you about that incident?

“A. Um –

“THE COURT: Counsel.

“[DEFENSE COUNSEL]: Objection, hearsay.

“THE COURT: Counsel, I think it’s just going to be limited as to the quantity.

“[THE PROSECUTOR]: Okay.

“Q. And did she – without giving me any facts, did she describe an incident of sexual touching?

“A. Yes.

“Q. And how many times did she say that sexual touching happened?

“A. One time that time.

“Q. Okay. And did she describe it happening any other times beside that – that one time?

“A. If I may refresh my memory?

“Q. Yes, if it will help you to refresh your recollection, it’s on page 5 of that report, report number three.

“A. Yes, she did tell me that it had happened on more than one occasion.”

B. Analysis

When considering the sufficiency of the evidence to support a conviction on appeal, we apply the substantial evidence standard of review, viewing the evidence in the light most favorable to the judgment to determine whether a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thompson (2010) 49 Cal.4th 79, 113; People v. Halvorsen (2007) 42 Cal.4th 379, 419; People v. Blakeslee (1969) 2 Cal.App.3d 831, 837 (Blakeslee) [“on appeal the test of the sufficiency of the evidence is whether proof of guilt is substantial, is of solid value, and reasonably inspires confidence”].)

In People v. Jones (1990) 51 Cal.3d 294 (Jones), our Supreme Court held that convictions for lewd acts under section 288 may properly be based on nonspecific or “‘generic’” testimony from the victim, i.e., “testimony describing a series of essentially indistinguishable acts of molestation,” as long as the victim’s testimony described the nature of the sexual acts, the frequency of the acts, and the general time period for the acts. (Jones, supra, at pp. 299-300, 314; People v. Cissna (2010) 182 Cal.App.4th 1105, 1124; People v. Tomkins (2010) 185 Cal.App.4th 1253, 1261 [“Generic testimony about child molestation may be sufficient to support a conviction, if such testimony ‘describe[s] the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct.’”)

Here, the police officer testified that, during the investigation into the instant matter, N told the officer that some kind of sexual incident between Lopez and her occurred more than one time. The court had ruled that the police officer could not testify as to the nature of the incidents but only as to the “quantity.”

N was 27 years old at the time of trial. She testified Lopez molested her when she was “probably like seven maybe.” The prosecutor asked N to clarify the statement N gave to the police officer who had recently investigated the instant matter. N explained she remembered “one time” when she woke up in the night and saw Lopez touching her vagina. She could not remember additional details about even this incident. As for any other incidents of molestation, N said her memory was “very vague because [she] was sleeping.” Earlier in her testimony, when asked how many incidents of vaginal touching occurred, N made clear that the one incident she had described was “the one time I can remember for sure.” She said she told the police officer, with regard to any other incidents of molestation that, “[she] felt like something had happened, but [the incident she had described] was [the] one time that [she] remember[ed] waking up and seeing [Lopez].”

We conclude the record as a whole does not disclose substantial evidence to reasonably support a conclusion, beyond a reasonable doubt, that Lopez touched N’s vagina on at least two separate occasions. (See People v. Johnson (1980) 26 Cal.3d 557, 576 [in reviewing sufficiency of the evidence, the court “‘must resolve the issue in the light of the whole record–i.e., the entire picture … put before the jury–and may not limit [its] appraisal to isolated bits of evidence’”]; People v. Bassett (1968) 69 Cal.2d 122, 138-139 [substantial evidence “‘cannot be deemed synonymous with “any” evidence,’” rather, such evidence “‘must be of ponderable legal significance’”]; People v. Kraft (2000) 23 Cal.4th 978, 1053 [substantial evidence is “evidence that is reasonable, credible and of solid value”].)

While the police officer testified that N told him some sexual contact occurred on more than one occasion, N herself was questioned at trial about her statement to the police officer and clarified and contextualized what she told the officer. Specifically, N candidly clarified that her statements about any incidents of molestation besides the incident she described at trial were based on “very vague” memories and feelings, rather than something she remembered had happened. Under these circumstances we cannot say, given Lopez’s conviction on count 9 for lewd conduct with N, that the additional conviction on count 10 is supported by substantial evidence. (See People v. Bassett, supra, 69 Cal.2d at p. 139 [“The prosecution’s burden is a heavy one: ‘To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty. The trier must therefore have reasonably rejected all that undermines confidence.’”].) In short, on this record, no reasonable juror could find, beyond a reasonable doubt, that Lopez sexually molested N on two separate occasions. (See ibid. [“‘substantial’ evidence” is “evidence that reasonably inspires confidence and is of ‘solid value’”]; Blakeslee, supra, 2 Cal.App.3d at p. 837 [“Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.”].)

Lopez’s conviction on count 10 is reversed.

III. B’s Mental Health Records

Counts 1-7 charged Lopez with lewd acts on B. B was born in 1997 and was 20 years old at the time of trial. B testified she was molested by Lopez numerous times when she was between the ages of four and 10. Most of the acts of molestation occurred during visits to Lopez’s house, including overnight stays. B did not report the abuse to her parents because she was afraid. In January 2014, when she was in the 11th grade, B suffered a mental breakdown in a bathroom at her school. She informed a school counselor about the abuse and the police were alerted, triggering the instant investigation.

Defense counsel subpoenaed mental health records from Kaiser Permanente (Kaiser), where B sought treatment during the period following her mental breakdown in school. Defense counsel specifically requested discovery of statements made by B, as reflected in her mental health records, that were inconsistent with her accusations against Lopez, as well as any mental health diagnosis or conditions relevant to her credibility or ability to be truthful. Kaiser delivered 92 pages of records to the court during the trial. The court reviewed, in camera, the records—which were sealed—for relevant and discoverable material. The court determined the records were not inconsistent with the trial evidence but, rather, corroborated it.

Lopez requests us to “independently review the sealed record” (identified as Courts Exhibits 1 and 2), to determine whether it contains “relevant information” that should have been released to defense counsel by the trial court. The People have “no objection” to Lopez’s request. We have reviewed the mental health records in question and determined the trial court correctly concluded the records contain no information relevant to defense counsel’s discovery requests.

DISPOSITION

The convictions on counts 8 and 10, along with the related sentences, are reversed. Retrial on these counts is barred. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the above changes and to forward it to the appropriate correctional authorities.

SMITH, J.

WE CONCUR:

POOCHIGIAN, Acting P.J.

DETJEN, J.