Filed 2/8/16 P. v. Zelaya CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143200
v.
DANNY ZELAYA,                                                        (Contra Costa County
                                                                     Super. Ct. No. 051409002)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         A jury convicted appellant Danny Zelaya of five counts of sexually abusing his
girlfriend’s niece, Jane Doe, over a period of three years. Zelaya argues that there was
insufficient evidence that the sexual penetration supporting his conviction pursuant to
Penal Code section 288.7, subdivision (b)1 was committed when the victim was 10 years
old or younger. He further contends his sentence of 15 years to life for this offense
constitutes cruel and unusual punishment under both the federal and state constitutions.
We affirm.
                                                            II.
                        FACTUAL AND PROCEDURAL BACKGROUND
         The Contra Costa County District Attorney filed an information charging Zelaya
in counts one and three with sexual acts with a child 10 years old or younger (§ 288.7,


         1
             All further undesignated statutory references are to the Penal Code.


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subd. (b)), and in counts two, four, five, and six with lewd acts upon a child under age 14
(§ 288, subd. (a)).2 At trial, the information was amended to allege for counts two, four,
five, and six, Zelaya engaged in substantial sexual conduct pursuant to section 1203.066,
subdivision (a)(8).
       Evidence at Trial
       Zelaya was the boyfriend of Jane Doe’s aunt, E. Zelaya and E. lived in three
locations: the first was an apartment on North Broadway Avenue in Bay Point, then a
house on Vista Way in Antioch, followed by another house on Texas Street in Antioch.
E. testified that they lived in the Bay Point apartment from approximately March 2010
until August 2010. She and Zelaya moved to the Texas Street house in approximately
May 2013. E. would regularly babysit Jane Doe and her sister.
       Jane Doe’s mother (mother) noticed a change in Jane Doe’s behavior in 2013.
Jane Doe had become angry, she wanted to spend time alone, and her grades dropped at
school. In fall 2013, mother found Jane Doe crying in her room and Jane Doe told her
Zelaya had been touching her. Jane Doe said it started in Bay Point (in 2010). Mother
reported the abuse to the police.
       Antioch Police Department Sergeant Santiago Castillo conducted a recorded
interview of Jane Doe. In the interview, which was played for the jury, she described the
abuse. She said the first touching occurred when she was eight years old. She said
Zelaya pulled her into the bedroom and said “Let me touch you.” He touched her breasts
under her shirt and touched her on “top and bottom” on her bare skin. He told her “[t]his
is our secret” and she should not tell anyone or he would go to jail. She said it happened
at the Bay Point apartment more than 20 times when she was eight and nine years old.
She said it stopped between ages nine and ten when E. and Zelaya moved to a different
house, and then started again in their current house. In his current house, he touched her

       2
         Zelaya was also charged with two counts of forcible lewd acts upon a child
under age 14 (§ 288, subd. (b)(1)) for conduct related to Jane Doe 2 (Jane Doe’s sister),
but he was not convicted of these counts at trial. Zelaya was also acquitted of one count
(count three, § 288, subd. (b)) related to Jane Doe.


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under her clothing on her vagina. Zelaya encouraged her to touch his penis but she
refused. Jane Doe stated that it happened “pretty much every time” she saw Zelaya.
       Jane Doe was also interviewed at the Children’s Interview Center (CIC) and the
recording was played for the jury. Jane Doe stated that Zelaya began touching her when
she was eight years old. She described the first incident when she was eight years old in
the bedroom as Zelaya unzipping her shorts. She said the shorts were “really tight” so he
had to unzip the zipper. Then he was “squishing” her under her clothes and touching her
“deep hole pocket” or her “heiny.” She said the first time he “squished” her breasts
touching her skin and “squish[ed]” her vaginal area over her panties. She said when she
was 10 years old, Zelaya sucked her breasts. When she was 10 and 11, he began rubbing
her under her panties.
       When the interviewer asked Jane Doe if Zelaya ever put his hands inside her body
when he was rubbing her underneath her panties, she said that on one occasion, he put his
finger in her “guts.” She said it happened when her aunt asked Zelaya to go to the
Mi Pueblo grocery store and he took her with him. She said that Zelaya told her that if
she let him touch her, he would buy her chips. She said: “He would go in the guts and
get the juicy thing and squishy and slimy thing and eat it.” She then said that “sometimes
when I pee I forget to wipe” and it leaves something “slimy.” The interviewer said that it
was okay to forget to wipe and Jane Doe responded, “Well, I’m eleven years old, I’m not
supposed to forget.” The interviewer asked her what she was wearing, and she responded
“the same shorts, the tight shorts.” She said Zelaya undid the zipper.
       At the time of trial Jane Doe was 11 years old (she was born in 2002). Jane Doe
testified that Zelaya and E. had lived in three places: an apartment and two houses. She
testified Zelaya touched her at the apartment and the last house. During trial, Jane Doe
was emotional so she was unable to explain the details of the touching. She testified that
Zelaya touched her in a car when they went to a “Mexican store.” She did not remember
how old she was when it happened, but it was when Zelaya lived at the Bay Point
apartment. Her Aunt E., however, testified that she never sent Zelaya to the store with



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Jane Doe. E. explained that the children never rode in the car with her or Zelaya because
they did not have car seats.
       The jury heard two recorded interviews between Zelaya and Sergeant Castillo.
When Zelaya was initially interviewed at his home, he immediately admitted his conduct.
He admitted the abuse began at the Bay Point apartment and continued for three years.
He initially agreed that he had touched Jane Doe more than 50 times, but later in the
interview, he said it only happened a few times. He admitted to touching her under her
shirt and on the outside of her panties, but claimed he never touched her vagina. He later
said that he may have touched inside her panties one time. He explained that he touched
her because he would “start feeling something weird in my body.” He said there
something bad inside of him and he cannot control it. He repeatedly said that Jane Doe
was not lying. Zelaya stated that he would “have to pay with jail for what I did.”
       Dr. Jim Carpenter, a pediatrician specializing in child abuse pediatrics, testified
about the structure of female genitalia and the sexual maturation of girls. During his
testimony, he explained some girls enter puberty as early as eight or nine years old and
some as late as 17 or 18 years old. He said the average age is between 9 and 12 years
old. He said that prepubertal girls may have vaginal discharge; it is often the first sign of
puberty. He testified 11 years old is a “common age” for discharge to be present.
       Zelaya’s Section 1118.1 Motion
       During trial, Zelaya made a motion for judgment of acquittal pursuant to section
1118.1 for counts one and three because there was no evidence that Jane Doe was 10
years old or younger when the sexual penetration occurred. The prosecutor argued that
Jane Doe testified that the touching in the car occurred when Zelaya lived at the Bay
Point apartment in 2010 when Jane Doe was under the age of 10. The court denied the
motion, stating there was sufficient evidence for the counts to go to the jury.
       Jury Verdict
       The jury found Zelaya guilty of count one: sexual acts with a child 10 years or old
or younger (§ 288.7, subd. (b)), and counts two, four, five and six: lewd acts upon a child
under age 14 (§ 288, subd. (a)). The jury acquitted Zelaya of count three (§ 288.7, subd.


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(b)) and counts seven and eight (§ 288, subd. (b)(1)) related to Jane Doe 2. The jury
found not true that in counts two, four, five, and six, Zelaya engaged in substantial sexual
conduct pursuant to section 1203.066, subdivision (a)(7) against more than one victim.
The jury further found not true that Zelaya was guilty of two or more sex offenses against
more than one victim pursuant to section 667.61, subdivision (e)(4).
       Sentencing
       At the sentencing hearing, the prosecutor read a letter from Jane Doe’s mother
addressing the impact the abuse had on her daughters and her family. She described Jane
Doe as having great difficulty overcoming the incident. Jane Doe “loses all interest in
her normal routine and lives in an imaginary world.” Mother stated she felt guilty for
what happened to her daughters and felt as though she cannot move forward with her life.
       The prosecutor argued that although Zelaya has no criminal history and
acknowledged the crimes, his conduct in victimizing Jane Doe occurred over a period of
three years. The prosecutor requested a sentence of 29 years to life. Zelaya’s counsel
argued for sentence of 15 years to life. He contended that although all crimes involving
abuse of a child are egregious, this case did not involve sexual intercourse, threats, or use
of force.
       The court found: “[I]t is hard to argue about the severity of the conduct by the
defendant when one sees the [e]ffect of the conduct on Jane Doe. It is such a tragedy.”
The court found that Zelaya took advantage of a position of trust as a family member and
the crimes were committed at different times in different places over a period of years.
The court noted, in mitigation, Zelaya had no criminal record and there was an early
acknowledgment of wrongdoing. The court stated “while it was a little chilling [to hear]
Mr. Zelaya’s description of how he feels when he saw a woman—young, young, woman,
a girl of Jane [Doe’s] age, how that made him feel physically, it also was a certain
frankness and directness that we don’t hear from sex offenders either until they’ve
undergone quite a bit of treatment.”
       The court then imposed a total sentence of 21 years to life. The sentence consisted
of an indeterminate term of 15 years to life on count one and determinate terms of six


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years for counts two, four, five, and six. For counts two, four, five, and six, the court
selected the mid-term of six years for each count, but ordered the six-year terms to be
served concurrently. The court further ordered the determinate six-year term as to count
two to run consecutively to the indeterminate term of 15 years to life on count one.
                                             III.
                                       DISCUSSION
       A.     The Evidence was Sufficient to Establish Count One
       Zelaya argues that there was insufficient evidence that Jane Doe was younger than
10 years old when he sexually penetrated her. The incident that established count one
was a trip to the grocery store where Zelaya inserted his finger into Jane Doe’s vagina.
Zelaya contends there was conflicting testimony as to when this incident occurred and it
may have been when Jane Doe was 11 years old.
       In reviewing Zelaya’s claim of insufficiency of the evidence, “we review the
entire record in the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) “We view the
evidence in the light most favorable to the prosecution, and presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence. . . .” (People v. Griffin (2004) 33 Cal.4th 1015, 1028, citing People v. Ochoa
(1993) 6 Cal.4th 1199, 1206 (Ochoa).)
       Section 288.7 subdivision (b) provides: “Any person 18 years of age or older who
engages in oral copulation or sexual penetration, as defined in Section 289, with a child
who is 10 years of age or younger is guilty of a felony and shall be punished by
imprisonment in the state prison for a term of 15 years to life.” (§ 288.7, subd. (b).) The
statute defines sexual penetration as “the act of causing the penetration, however slight,
of the genital or anal opening of any person” for the purpose of sexual arousal or
gratification. (§ 289, subd. (k)(1).) Thus, “sexual penetration” does not have to be



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vaginal penetration but only penetration of the labia, not the vagina. (See People v.
Quintana (2001) 89 Cal.App.4th 1362, 1371.)
       For purposes of section 288.7, a child is “10 years of age or younger” if the minor
has not yet reached his or her 11th birthday as of the time of the sexual assault. (People
v. Cornett (2012) 53 Cal.4th 1261, 1265-1266.)
       The prosecution presented substantial evidence that the sexual penetration
occurred when Jane Doe was younger than 11 years old. Jane Doe testified at trial
Zelaya touched her in a car when they went to a “Mexican store.” She did not remember
how old she was when it happened, but it was when Zelaya lived at the Bay Point
apartment. The testimony at trial established Zelaya lived at the Bay Point apartment
when Jane Doe was eight years old.
       During the CIC interview, Jane Doe described the incident when Zelaya touched
her under her panties and put his finger in her “guts.” She again said it happened in the
car when they went to the Mexican grocery store. She said: “He would go in the guts and
get the juicy thing and squishy and slimy thing and eat it.” The CIC interviewer did not
ask her how old she was when this occurred, but Jane Doe described that she was
wearing “the same shorts, the tight shorts.” She had earlier described the “tight shorts”
when discussing the very first time Zelaya touched her at the Bay Point apartment. She
said when she was eight years old, she had on tight shorts and he had to unzip the zipper
to be able to touch her panties.
       From Jane Doe’s testimony, viewing the evidence in the light most favorable to
the prosecution, the jury could reasonably conclude that the sexual penetration occurred
when Jane Doe was eight years old. At trial, she testified the incident occurred when
Zelaya lived at the Bay Point apartment in 2010 when Jane Doe was eight years old.
Also, both at the CIC interview and at trial, Jane Doe described the penetration as
happening on the car ride to the Mexican grocery store. In the CIC interview, she
described wearing the same tight shorts as when Zelaya first touched her at age eight.
       Zelaya’s argument to the contrary is that Jane Doe’s description of vaginal
discharge was consistent with a girl at the onset of puberty, not an eight year old. Zelaya


                                             7
relies on the testimony of Dr. Carpenter that girls begin to have a white discharge when
they enter puberty. However, Dr. Carpenter explained that girls may enter puberty as
early as eight years old, or as late as 17 or 18 years old. He said the average age is
between 9 and 12 years old. He also testified that “prepubertal” girls may have vaginal
discharge. While he stated that 11 years old is a “common age” for discharge to be
present, it could be present earlier. As respondent makes clear, Dr. Carpenter did not
testify about when Jane Doe began puberty.
       There was also evidence that the substance Jane Doe referred to during the
incident was urine and not vaginal discharge. Jane Doe stated “sometimes when I pee I
forget to wipe” and it leaves something “slimy.” The interviewer said that it was okay to
forget to wipe and Jane Doe responded “Well, I’m eleven years old, I’m not supposed to
forget.” Zelaya interprets this to mean that the incident must have happened when she
was 11 years old. However, it could also be reasonably interpreted that she has
sometimes forgotten to wipe for months or years and she should no longer forget because
she was now 11 years old at the time she testified.
       The jury heard all the evidence and as a rational trier of fact could find Zelaya
guilty of sexual penetration of a child under 10 years old. (See Ochoa, supra, 6 Cal.4th
at p. 1206 [“ ‘The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ”].) Resolving all conflicts in favor of the
prosecution, we conclude there was sufficient evidence to support Zelaya’s conviction on
count one.
       B.     Zelaya’s Sentence Does Not Constitute Cruel and Unusual Punishment
       Zelaya contends that his sentence constitutes cruel and unusual punishment under
both the United States and California Constitutions.
       Zelaya’s sentence of 15 years to life on count one was mandated by statute.
(§ 288.7, subd. (b).) The court imposed a total sentence of 21 years to life consisting of
15 years to life on count one, and a mid-range term of six years on counts two, four, five



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and six, with the six-year term as to count two to run consecutive to the 15-year term as
to count one.
       A punishment violates the Eighth Amendment if it involves the “unnecessary and
wanton infliction of pain” or if it is “grossly out of proportion to the severity of the
crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) “[I]n California a punishment
may violate article I, section 6, of the Constitution if, although not cruel or unusual in its
method, it is so disproportionate to the crime for which it is inflicted that it shocks the
conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8
Cal.3d 410, 424, fn. omitted.) Under Lynch we examine (1) the nature of the offender,
(2) compare the punishment with the penalty for more serious crimes in the same
jurisdiction, and (3) compare the punishment with the penalty for more serious crimes in
other jurisdictions. (Id. at pp. 425–427.)
       Zelaya contends neither the circumstances of the offense nor his personal
characteristics justify a sentence of 15 years to life on count one. He argues the offense
was not aggravated because there was no sexual intercourse, no weapons used, no threats,
and no physical harm to the victim. Zelaya was a young man in his early 20’s and he had
no criminal record.
       The court addressed a similar argument in People v. Alvarado (2001) 87
Cal.App.4th 178 (Alvarado.) The defendant was convicted of rape of an elderly woman
during the commission of a burglary and sentenced pursuant to statute to the mandatory
term of 15 years to life. He argued that his troubled background, lack of a criminal
record, and sincere remorse militated for a more lenient punishment. (Id. at p. 199.) The
court concluded that despite his age and the fact he acknowledged his actions upon being
caught, his callous assault of a vulnerable victim warranted harsh punishment. (Id. at
pp. 199-200; see also People v. Estrada (1997) 57 Cal.App.4th 1270 [holding a sentence
of 25 years to life for forcible rape in the course of a burglary was not cruel and unusual
punishment where the defendant, who had no prior felony convictions, used no weapon,
made no threats and expressed remorse].)



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       Zelaya relies on In re Rodriguez (1975) 14 Cal.3d 639 (Rodriguez) to argue his
punishment is disproportionate to the crime. The defendant in Rodriguez was convicted
of violating section 288 (committing a lewd or lascivious act on a child under age of 14)
and sentenced to an indeterminate term of one year to life. (Id. at p. 642.) The defendant
filed a writ of habeas corpus after serving 22 years, arguing the indeterminate penalty of
one year to life in prison constituted cruel and unusual punishment in violation of the
federal and state Constitutions. (Id. at pp. 642–643.) Our Supreme Court held the
indeterminate sentence under section 288 on its face was not unconstitutional. (Id. at
p. 648.) But the law, as applied to the defendant, “has resulted in the imposition of cruel
and unusual punishment.” (Id. at p. 651.)
       The high court concluded that the defendant’s fondling of a six-year-old child,
although not “trivial,” was not committed in a violent manner or with a weapon, lasted
only a few minutes, and caused the victim no harm. (Rodriguez, supra, 14 Cal.3d at
pp. 654–655.) The defendant was 26 years old when he committed the offense, had a low
IQ of about 68 and was functionally illiterate and unskilled. (Id. at p. 644, fn. 6.) The
court believed “[h]is conduct was explained in part by his limited intelligence, his
frustrations brought on by intellectual and sexual inadequacy, and his inability to cope
with these problems.” (Id. at p. 655.) The defendant had no criminal history “apart from
problems associated with his sexual maladjustment.” (Ibid.) The court held the 22 years
he had already served was disproportionate to the offense considering shorter maximum
terms imposed for more serious crimes. (Ibid.) The court concluded because the
defendant had already served a term which was disproportionate to the offense, his
continued imprisonment would constitute cruel and unusual punishment. (Ibid.)
       Rodriguez is distinguishable. Nothing in the record suggests Zelaya possesses a
low IQ, is illiterate or unskilled, or coping with problems of sexual inadequacy. Perhaps
as important as any distinguishing facts are that, unlike Rodriguez, where the assault was
a single act lasting three minutes, here the sexual misconduct occurred over a period of
three years, and the victim demonstrably and understandably suffered greatly from her
ordeal. Rodriguez does not hold the indeterminate life sentence under section 288 is


                                             10
unconstitutional, but that the 22 years the defendant had served was disproportionate to
his offense. Here, the minimum term of 15 years imposed upon Zelaya for count one is
not unconstitutional under Rodriguez.
       Zelaya compares his sentence to someone convicted of murder and claims his
sentence is unconstitutionally disproportionate. Zelaya, however, fails to recognize that
he was convicted of not one but five felonies. “[T]he commission of a single act of
murder, while heinous and severely punished, cannot be compared with the commission
of multiple felonies. [Citation.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 826.)
Zelaya repeatedly molested Jane Doe, a vulnerable child, over a period of three years.
According to Jane Doe, Zelaya touched her every “pretty much every time” she saw him.
       But, contrary to the authorities cited by Zelaya, there are a host of cases with
similar sentences for sexual assault that have been upheld on appeal. (See Alvarado,
supra, 87 Cal.App.4th 178 [upholding a life term for rape committed during a burglary
against a challenge the sentence was cruel and unusual punishment]; People v. Meneses
(2011) 193 Cal.App.4th 1087, 1093–1094 [upholding sentence of 15 years to life for a
defendant convicted of a single lewd act with a 12 year old who became pregnant];
People v. Cartwright (1995) 39 Cal.App.4th 1123 [upholding indeterminate term of 375
plus a determinate term of 53 years for sexual assault charges; People v. Retanan (2007)
154 Cal.App.4th 1219 [upholding sentence of 135 years to life against a cruel and
unusual punishment challenge for defendant’s sexual assaults of three young girls].)
       “[G]reat deference is ordinarily paid to legislation designed to protect children,
who all too frequently are helpless victims of sexual offenses.” (In re Wells (1975) 46
Cal.App.3d 592, 599.) Zelaya’s punishment “merely reflects the Legislature’s zero
tolerance toward the commission of sexual offenses against particularly vulnerable
victims. It does not, however, render a defendant’s sentence excessive as a matter of law
in every case.” (Alvarado, supra, 87 Cal.App.4th at pp. 200–201.)3


       3
        Zelaya does not address the third factor identified in In re Lynch, supra, 8
Cal.3d 410: his penalty compared to the same offense in other jurisdictions.


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      Zelaya has failed to demonstrate that his sentence is so disproportionate to his
crimes that it shocks the conscience or offends fundamental notions of human dignity.
(See People v. Dillon (1983) 34 Cal.3d 441, 477–478.)
                                           IV.
                                    DISPOSITION
      The judgment is affirmed.




                                                 _________________________
                                                 RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
STREETER, J.




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