Filed 9/2/16 P. v. Moreno-Perez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                         G050551

         v.                                                            (Super. Ct. No. 12CF1024)

RAUL MORENO-PEREZ,                                                     OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Affirmed as modified.
                   David L. Annicchiarico, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and
Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
              Raul Moreno-Perez appeals from a judgment after a jury convicted him of
kidnapping to commit a sexual offense and forcible oral copulation and found true
kidnapping enhancements. Moreno-Perez argues the following: (1) insufficient evidence
supports his conviction for kidnapping to commit a sexual offense; (2) the trial court
erred when sentencing him for kidnapping to commit a sexual offense and the sentence
should be stayed; and (3) his criminal protective order must be stricken. Although we
agree with Moreno-Perez’s sentencing contention, a point the Attorney General concedes,
his other contentions have no merit. We affirm the judgment as modified.
                                         FACTS
              Alma C. was born and raised in Mexico. In June 2001, Alma moved to
Garden Grove to live with her aunt and she got a job distributing flyers. She did not
speak English at the time. In November of that year, 19-year-old Alma finished working
at 6:00 p.m. and waited at a bus stop in the City of Orange. There was a pharmacy
behind the bus stop. At the time, the sun had set and the only light came from the
pharmacy.
              While Alma waited at the bus stop, a man driving a van stopped to talk to
her. She ignored him, and he drove away. The man drove by again, but he did not stop
or say anything. The next thing she knew, the man approached her and was standing
beside her at the bus stop. The man was Hispanic and looked to be about her age. He got
close to her and asked her in Spanish if she wanted a ride. She said, “No.” The man said
she should not think ill of him, “that he was only going to give [her] a ride.” She again
refused because she did not know him. He said his name was “Raul.”
              Moreno-Perez was insistent and “kept on telling [her] that he was going to
give [her] a ride.” Alma continued to decline because she did not know him. Frightened
by his persistence, she looked at the young man sitting at the bus stop. The young man
did not say anything.



                                             2
              After Alma continuously refused a ride from Moreno-Perez, he got closer,
grabbed the inside of her elbow, and pulled her to his van parked approximately 15 feet
away near the pharmacy. She complied out of fear but did not scream. He opened the
passenger door, said he would hit her if she did not get in, and pushed her onto the seat
with both hands. He got into the driver’s seat and drove towards Garden Grove. Alma
was frightened and remained silent. Moreno-Perez did not speak either.
              During the drive, Moreno-Perez called someone and said he was on his
way. When Alma asked where they were going, Moreno-Perez said he was going to pick
up some friends. While driving, she saw he was looking for something. When he turned
onto Palm Street, she said she lived nearby on Buaro Street and asked to be let out of the
van. He turned onto Buaro Street and pulled into a shopping center where he parked in
the alley behind the stores. It was dark, and there were no other cars nearby.
              When Alma opened the passenger door to get out, Moreno-Perez was
standing in front of her preventing her from leaving unless she would “be with him,”
which she understood to mean have sex with him. She tried to leave, but he grabbed her
shoulders, slid open the back seat door, forced her in, and threatened to hit her if she did
not “go along with it.” She cried and begged for him to let her leave. Inside the van, he
called someone and said “he was already there.” After he hung up, Moreno-Perez told
her it would be better if she just did it with him quickly before his friends arrived.
              While in the back of the van, Moreno-Perez forced Alma to kneel on the
floor in front of his exposed erect penis. When she struggled, he slapped her.
Moreno-Perez said he would let her go if she performed oral sex on him. He grabbed her
hair and forced her to orally copulate him for several minutes. He then pulled down her
pants and underwear, brought her onto his lap, and pulled her body down on top of him.
She cried and pushed him away. His penis touched her vagina about three times. She did
not know if he actually penetrated her. Suddenly he said, “I can’t do this,” threw her onto
the seat, and told her to leave quickly before his friends arrived.

                                              3
                Alma pulled up her pants and underwear and ran to the house where she
lived with her aunt. She told her aunt that a man had slapped and groped her, but she did
not recount the entire incident. Alma’s aunt called the police. Officer Miguel Cuenca
responded to the call. Alma told Cuenca what happened to her. She was taken to a
hospital for a sexual assault examination. Her clothing and underwear were collected at
the hospital.
                In 2002, a forensic scientist performed tests on Alma’s underwear. The
scientist found two biological stains. The spermatozoa was analyzed for DNA, and the
DNA profile was entered in a database.
                Ten years later, the DNA sample from Alma’s underwear was matched to a
DNA sample from Moreno-Perez. When police showed Alma a six person photographic
lineup, including a photo of Moreno-Perez as he looked in 2001, she was unable to
identify anyone.
                An information charged Moreno-Perez with kidnapping to commit a sexual
offense (Pen. Code, § 209, subd. (b)(1), all further statutory references are to the Penal
Code (count 1)), and forcible oral copulation (§ 288a, subd. (c)(2) (count 2)).
As to count 2, the information alleged Moreno-Perez kidnapped Alma and the movement
substantially increased the risk of harm (§ 667.61, subds. (a) & (d)(2)), and he kidnapped
Alma in violation of section 209 (§ 667.61, subds. (b) & (e)(1)). Before trial, the trial
court issued a three-year criminal protective order pursuant to section 136.2. The court
ordered the criminal protective order sealed pursuant to section 293. The order was set to
expire on April 11, 2015.
                At trial, Alma’s testimony was similar to what she told Cuenca despite
some details she did not remember. On cross-examination, Alma could not remember
how Moreno-Perez knew to drive directly towards her house in Garden Grove. She
thought Moreno-Perez might have been watching her because “every day [she] was at
that bus stop and every day [she] would go that way at the same time.” Further, she

                                              4
could not recall whether she told Cuenca that Moreno-Perez slapped her in the face when
she refused to walk to the van.
              Cuenca testified Alma told him that Moreno-Perez initially asked her if she
was going to Garden Grove and she answered, “Yes.” Moreno-Perez said he was going
that way and would give her a ride, but she declined. Cuenca further testified that as
Moreno-Perez pushed Alma towards the van, he slapped her when she tried to pull away.
Alma also told him that Moreno-Perez had punched her in the stomach.
              The jury found Moreno-Perez guilty of counts 1 and 2 and found true the
allegations. On July 25, 2014, the trial court sentenced Moreno-Perez to prison for
25 years to life on count 2 pursuant to the section 667.61, subdivisions (a) and (d)(2),
enhancement. The court imposed a concurrent term of seven years to life for count 1.
Pursuant to section 654, the court stayed the sentence for the section 667.61,
subdivisions (b) and (e)(1), enhancement.
                                       DISCUSSION
Sufficiency of the Evidence
              Moreno-Perez argues insufficient evidence supports his conviction for
count 1 because there was no evidence he intended oral copulation from the time the
kidnapping began. We disagree.
              “‘In reviewing a challenge to the sufficiency of the evidence, we do not
determine the facts ourselves. Rather, we “examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
[Citations.] We presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review
applies to cases in which the prosecution relies primarily on circumstantial evidence . . . .
[Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment

                                              5
may not be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility.’ [Citations.] ‘Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]”
(People v. Brown (2014) 59 Cal.4th 86, 105-106 (Brown).)
               A person is guilty of kidnapping if he “forcibly, or by any other means of
instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and
carries the person into another country, state, or county, or into another part of the same
county . . . .” (§ 207, subd. (a).) The crime of kidnapping for oral copulation is a type of
aggravated kidnapping set forth in section 209, subdivision (b)(1). Section 209 “requires
movement of the victim that is not merely incidental to the commission of the [sexual
offense] and that increases the risk of harm to the victim over and above that necessarily
present in the [sexual offense] itself.” (People v. Martinez (1999) 20 Cal.4th 225, 232.)
               “[A]ggravated kidnapping by definition requires proof of specific intent.”
(People v. Dominguez (2006) 39 Cal.4th 1141, 1151, fn. 6.) The defendant must have the
specific intent to commit oral copulation at the time the kidnapping begins. (See People
v. Davis (2005) 36 Cal.4th 510, 565-566 [discussing aggravated kidnapping for
robbery].) Intent is rarely susceptible of direct proof and usually must be inferred from
the facts and circumstances surrounding the offense. (People v. Thomas (2011)
52 Cal.4th 336, 355.)
               Here, the record includes sufficient evidence from which the jury could
reasonably conclude Moreno-Perez intended to sexually assault Alma at the time he
kidnapped her. The entire course of conduct supports a finding Moreno-Perez kidnapped
Alma with the purpose to commit sexual assault. At the beginning of the incident,
Moreno-Perez drove by Alma twice and told her that he was going to give her a ride
multiple times. When Alma refused, he grabbed her arm, pulled her to his van, and
pushed her inside. His aggressiveness demonstrates an unlawful intent beyond merely

                                                6
seeking a friend. Additionally, his conduct in the van demonstrates that from the outset
he planned to sexually assault Alma.
              In the van, Moreno-Perez called someone and said he was on his way.
After Moreno-Perez parked the van, he called someone and said “he was already there.”
When he hung up, Moreno-Perez told Alma that she would be better off if she had sex
with him before his friends arrived. Later, apparently frustrated and expressing some
remorse, Moreno-Perez told Alma to leave before his friends arrived. Based on his
conduct and statements, the jury could reasonably conclude Moreno-Perez planned from
the outset to sexually assault Alma.
              Moreno-Perez cites to a number of facts and asserts he sought only a
companion and intended to drive Alma home and he did not intend to commit sexual
assault until after the movement began. The jury heard this evidence and Moreno-Perez’s
explanation for what occurred and rejected his defense. In essence, Moreno-Perez
improperly asks this court to reweigh the evidence and conclude contrary to the jury.
This we cannot do. (Brown, supra, 59 Cal.4th at pp. 105-106.) Thus, there was
sufficient evidence supporting Moreno-Perez’s conviction for count 1.
Sentence
              Moreno-Perez contends, and the Attorney General concedes, the trial court
erred by imposing a concurrent sentence on count 1 because he could not be punished for
the same kidnapping that was used to trigger section 667.61’s “One Strike” law. We
accept the Attorney General’s concession.
              Section 209, subdivision (d), states: “Subdivision (b) shall not be construed
to supersede or affect [s]ection 667.61. A person may be charged with a violation of
subdivision (b) and [s]ection 667.61. However, a person may not be punished under
subdivision (b) and [s]ection 667.61 for the same act that constitutes a violation of both
subdivision (b) and [s]ection 667.61.” (See People v. Byrd (2011) 194 Cal.App.4th 88,
102.)

                                             7
              Although section 209, subdivision (d), does not express which sentence
should be stayed, we conclude the shorter sentence for count 1 should be stayed. Staying
the lesser sentence is consistent with section 667.61’s purpose and intent as noted in
People v. Luna (2012) 209 Cal.App.4th 460 (Luna). “Section 667.61 ‘was enacted to
ensure serious and dangerous sex offenders would receive lengthy prison sentences upon
their first conviction.’ [Citation.] Heightened sentences are intended when ‘the nature or
method of the sex offense “place[d] the victim in a position of elevated vulnerability.”
[Citation].’ [Citation]. ‘Circumstances that elevate a victim’s vulnerability and fall
within the one strike statutory scheme include sex offenses where the attacker: kidnapped
the victim. . . .’ [Citation].” (Luna, supra, 209 Cal.App.4th at p. 471.) Additionally,
when staying a sentence pursuant to section 654, the proper procedure is to stay the lesser
term. (People v. Beamon (1973) 8 Cal.3d 625, 639-640.)
              Based on the jury’s finding Moreno-Perez kidnapped Alma with the intent
to commit a sexual offense and the movement substantially increased the risk of harm to
Alma, the heightened sentence is appropriate. We modify Moreno-Perez’s sentence to
stay the seven years to life sentence on count 1.
Criminal Protective Order
              Moreno-Perez contends the criminal protective order pursuant to section
136.2 must be stricken or corrected to reflect an expiration date of July 25, 2014, the date
the trial court sentenced him. Moreno-Perez claims that because the order provides that it
expires three years after the date of issuance (April 11, 2015), he could potentially be
charged with violating the order between July 25, 2014, the date of sentencing, and April
11, 2015, the date the criminal protective order expired. Not so.
              The authority in section 136.2 for a protective order exists only during the
pendency of a criminal case. (People v. Ponce (2009) 173 Cal.App.4th 378, 383
(Ponce); People v. Selga (2008) 162 Cal.App.4th 113, 118 [same]; People v. Stone
(2004) 123 Cal.App.4th 153, 159 [same].) This is consistent with the purpose of

                                             8
section 136.2, “‘to protect victims . . . in connection with the criminal proceeding in
which the restraining order is issued in order to allow participation without fear of
reprisal.’ [Citation.]” (Ponce, supra, 173 Cal.App.4th at p. 383.) Here, the April 11,
2012, criminal protective order was no longer in effect upon sentencing on July 25, 2014.
Thus, no further action is required.
                                       DISPOSITION
              Moreno-Perez’s sentence of seven years to life sentence on count 1 is
stayed. The clerk of the superior court is directed to prepare an amended abstract of
judgment reflecting the modified sentence and to forward a copy of the amended abstract
of judgment to the Department of Corrections and Rehabilitation, Division of Adult
Operations. As modified the judgment is affirmed.




                                                  O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




                                              9
