Filed 10/1/14 P. v. Flores CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065273

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN303121)

RICHARD FLORES,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Kathleen M. Lewis, Judge. Reversed in part, affirmed in part, and remanded with

directions.

         Thomas Owen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and

Respondent.
       The appellant in this case, Richard Flores molested his granddaughter on a

continual basis for approximately eight years since she was six and one-half years old.

       A jury convicted Flores of 26 counts of felony child molestation including the

offenses of aggravated sexual assault (Pen. Code,1 §§ 288a, subd. (c)(2); 269,

subd. (a)(4)), sexual penetration by force (§§ 269, subd. (a)(5); 289, subd. (a)(1)) and 20

counts of lewd acts on a child under the age of 14 (§ 288, subd. (a)(1)). The jury also

found true enhancements as to numerous counts under section 1203.066,

subdivision (a)(8).

       The court sentenced Flores to an indeterminate term of 90 years to life,

consecutive to a determinate term of 46 years.

       Flores appeals challenging only the sufficiency of the evidence to support counts

11 and 12 which alleged oral copulation of the victim by Flores at a residence on Rush

Street. After reviewing the record we agree there is no evidence that acts of oral

copulation of the victim by Flores occurred prior to the family's move away from that

house. Accordingly, we must reverse those two convictions and vacate the true finding

on the enhancement alleged as to those counts. We will remand the case to the trial court

to modify the sentence by removing the two consecutive two-year terms for counts 11

and 12. We will direct the court to modify the abstract of judgment accordingly and

forward the amended abstract to the Department of Corrections and Rehabilitation. We

will affirm the balance of the judgment.



1      All further statutory references are to the Penal Code unless otherwise specified.
                                             2
                                 STATEMENT OF FACTS

        In this appeal, Flores does not challenge the sufficiency of the evidence to support

the 24 felony convictions other than counts 11 and 12. Further, Flores does not challenge

the admissibility of the evidence or the credibility of the victim. Accordingly, we will

only set forth a brief summary of the facts to provide context. We will discuss the facts

of counts 11 and 12 in the discussion section of this opinion.

        The victim in this case, S., was removed from her parents in 2000. She was placed

with her grandparents, Flores and his wife, at a house on Rush Street in Oceanside in

2002.

        When S. was in the first grade, Flores began molesting her. The molestations

occurred weekly. The types of molestations included touching, digital penetration and

forced oral copulation of Flores by S.

        When S. was in the fifth grade the family moved to a residence on Kiva Lane.

The molestation continued on a regular basis and also included oral copulation of S. by

Flores and attempts by Flores to penetrate her vagina with his penis.

        In 2011, when S. was 15, friends persuaded her to report the abuse.

                                         DISCUSSION

        Flores contends the evidence is insufficient to prove counts 11 and 12. These

counts alleged acts of oral copulation by Flores on S. while the family lived on Rush

Street. During S.'s testimony she was questioned about certain acts of molestation

occurring at the Rush Street house. During direct examination she testified:



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         "Q: Let's talk for a few minutes about oral copulation. And I want to
         focus right now with you to him. Was there ever a time where your
         mouth came in contact with his penis?"

         "A: Yes.

         [¶] . . . [¶]

         "Q: How often did this type of conduct happen with your mouth
         coming in contact with his penis?

         "A: On Rush?

         "Q: Yes.

         "A: I don't recall.

         "Q: To the best of your ability, was it similar to him touching your
         breasts and your vaginal area?

         "A: No, it was not as often.

         "Q: Was it more than once?

         "A: Yes.

         "Q: Was it more than twice?

         "A: Yes.

         "Q: Was this oral contact from you to him, was this happening when
         you first lived at the Rush Street address or later on?

         "A: Later on.

         "Q: But still more than twice just in this home?

         "A: Yes."

The questioning continued:

         "Q: So let's talk about kind of the reverse of that. Did his mouth
         ever come in contact with your vaginal or genital area?

                                           4
          "A: I don't recall any times on Rush.

          "Q: Do you recall times at another location?

          "A: Yes.

          "Q: Where was that?

          "A: Kiva.

          "Q: But you don't recall that specifically at Rush Avenue?

          "A: I do not."

       As we will explain, we have not found any testimony by S. or any other witness

that acts of oral copulation of S. by Flores occurred while the family lived at the Rush

Street house.

                                  A. Standard of Review

       When we review a claim of insufficiency of the evidence to support a conviction

we apply the familiar substantial evidence standard of review. Under that standard we

review the entire record, drawing all reasonable inferences in favor of the jury's decision.

We do not weigh the evidence or make credibility decisions. Rather we seek to

determine whether there is substantial evidence in the record from which a reasonable

jury could have found each element of the alleged offense to have been proved beyond a

reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson

(1980) 26 Cal.3d 557, 578; People v. Ledesma (2006) 39 Cal.4th 641, 721.)




                                             5
                                         B. Analysis

       The record demonstrates that S. did not testify about any acts of oral copulation by

Flores while the family lived at the Rush Street house. The People do not disagree with

Flores assertion that there is no testimony from the victim identifying oral copulation by

Flores until the family moved to the Kiva Lane house. Rather, the People, relying on

People v. Jones (1990) 51 Cal.3d 294, 314 (Jones), contend that "generic" testimony by a

victim that describes acts recurring over a period of time can support convictions. We

find the principles of Jones are not applicable to the evidence in this case.

       The court in Jones, supra, 51 Cal.3d 294 dealt with a number of questions relating

to charging child molestation offenses, including those involving multiple acts of

molestation occurring over time. In that case the offenses were charged as occurring

from one date to a later date, such as January to November of a particular year. The court

explained that the child has to describe the particular type of activity involved, but it is

not necessary to always have precise dates in cases of continuing molestation. Thus, in

Jones so called "generic" testimony of the nature of the acts and their frequency over a

specified time period could support a conviction for the continuing molestation over the

time period. (Id. at p. 314.) That holding does not impact the case before us.

       There was generic testimony relating to acts occurring at the Rush Street house

and the acts later at the Kiva Lane house. There is no problem with that testimony nor is

there a challenge here to the sufficiency of such evidence to support the multiple counts

of sexual molestation. The difference here is in the manner of the pleading of the

offenses in counts 11 and 12.

                                               6
       In count 11 Flores was charged with a violation of section 288, subdivision (a) as

follows: Count 11: "to wit: father2 orally copulates victim's vagina at Rush Street

house, FIRST time. Count 12 similarly alleged: "to wit: father orally copulates victim's

vagina at Rush Street house, LAST time."

       In this case, contrary to Jones, supra, 51 Cal.3d 294, the charges of a specific type

of molestation, i.e., oral copulation by Flores in counts 11 and 12 were "generic" to the

time period S. lived with the family at the Rush Street house, and not a generalized

allegation that Flores committed this type of act regularly or over many years. Rather,

the charges in those counts focus on a specific, albeit lengthy period of time. Having

such allegations in mind, we have been unable to find any evidence in this record that

Flores orally copulated S. at any time prior to the move to Kiva Lane. On the contrary,

the only evidence at trial was that S. denied such conduct occurred during that time

period. Thus, this is not a case of the sufficiency of generic testimony about a type of act

occurring in a defined time period. Rather, this is a case where there is no evidence,

direct, circumstantial or "generic" to support counts 11 and 12. Therefore we have no

choice but to reverse the convictions on those counts.

                                      DISPOSITION

       The convictions on counts 11 and 12, together with the enhancement alleged in

each of the two counts, are reversed for insufficient evidence. The case is remanded to

the superior court with directions to modify the judgment by striking the sentences for



2      Although Flores was S.'s grandfather he and his wife adopted S. in 2004.
                                             7
those counts and to modify the abstract of judgment accordingly. The court is directed to

forward the amended abstract to the Department of Corrections and Rehabilitation. In all

other respects the judgment is affirmed.




                                                                HUFFMAN, Acting P. J.

WE CONCUR:


                  McDONALD, J.


                       AARON, J.




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