Filed 2/5/14 P. v. Mendoza CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B247144
                                                                          (Super. Ct. No. 2009009533)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

VINCENT RAY MENDOZA,

     Defendant and Appellant.




                   Vincent Ray Mendoza appeals the judgment entered following a court trial
in which he was convicted of continuous sexual abuse of a child under the age of 14 (Pen.
Code,1 § 288.5) and two counts each of committing a lewd act on a child (§ 288, subd.
(a)), luring (§ 288.3, subd. (a)), and misdemeanor child molestation (§ 647.6, subd. (a)).2
Appellant was sentenced to 30 years in state prison. He contends the evidence is
insufficient to support his conviction for continuous sexual abuse. We affirm.




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

       2 The trial court struck allegations that appellant committed lewd and lascivious
acts against more than one victim (§ 667.61, subd. (e)(4)), and that one of his victims was
under the age of 14 (§ 1203.066, subd. (a)(8)).
                        FACTS AND PROCEDURAL HISTORY
              Appellant's niece D. was born in 1994. When D. was between the ages of
five and seven, appellant touched her inappropriately on numerous occasions. The
incidents occurred while D. was staying with her grandmother T., who is appellant's
mother. On 10 to 20 different occasions, appellant took D. into the bathroom, pulled her
pants and underwear down to her knees, and touched her vagina and buttocks. Appellant
also took off his pants and underwear. On a couple of times, appellant took D.'s hand and
placed it on his penis. He told D. not to tell anyone about the incidents.
              As D. got older, she tried to avoid appellant and wore non-revealing
clothing when she saw him. During this time, appellant would call D. on her cell phone
and tell her that he wanted to see her again so he could touch her.
              Appellant also sexually abused D.'s younger sister M. When M. was seven
or eight years old, appellant began making comments about touching her vagina and
asked her if he could do so. He also asked M. if she had boyfriends and whether she let
them touch her. On one occasion, M. and appellant were sitting on the couch when he
pulled her over and touched her vaginal area over her clothing for several minutes. On
another occasion, appellant reached under M.'s clothes and touched her vaginal and chest
areas. M. yelled at appellant to stop, and he told her not to yell at him. Appellant
subsequently called M. and told her not to tell her parents what he had done. During the
same period, appellant would call M. and ask when he could see her and touch her again.
              Appellant continued calling D. at her home for several years, asking if he
could see her. When D. entered the ninth grade, appellant began calling her on her cell
phone and asking if he could see her and "touch [her] down there." He also asked
whether she wore a bra and had "hair down there."
              D. reported the abuse to her mother in November 2008. D.'s mother asked
M. if appellant had also touched her, and she verified that he had. D.'s parents confronted
appellant about the abuse.
              Prior to appellant's arrest, D. made a phone call to him that was
surreptitiously recorded by the police. During the call, appellant apologized for touching

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D. and acknowledged that he "touch[ed her] vagina" on four or five different occasions.
Appellant also acknowledged molesting M. and "put[ting his] finger in her vagina."
Appellant admitted that he knew his conduct was wrong. He also admitted that he tried
to touch D. and M.'s younger sister R., but she "wouldn't let" him do so.
               When appellant was interviewed by the police following his arrest, he
admitted touching D.'s vagina on three or four different occasions while they were in the
bathroom at his mother's house. He also admitted touching M.'s vagina three or four
times in the same manner. Appellant further acknowledged exposing his penis to a
neighborhood girl on four or five different occasions. Appellant said he had reported the
abuse to his brother, who is D. and M.'s father, and told him "I know it's a sin and I know
it's foolish and it's stupid."
               Appellant admitted to the police he had been sexually excited by his
victims' pre-pubescence. He also said he was able to distinguish between adults and
children with regard to his sexual desires, and knew it was wrong to molest children.
               Several months after appellant pled not guilty to the charges, his attorney
declared a doubt regarding his competency. Three doctors were appointed to evaluate
appellant pursuant to section 1368. Following a hearing, the court found appellant to be
competent and set the matter for a preliminary hearing. After defense counsel once again
declared a doubt as to appellant's competency, the court appointed a doctor to reevaluate
appellant. The court also received a report from appellant's treating psychiatrist, Dr.
David Gudeman. After considering the doctors' reports, the court found appellant
incompetent to stand trial and suspended the proceedings pending appellant's treatment at
Patton State Hospital. About four months later, appellant was declared competent to
stand trial in accordance with a certificate of restoration of his mental competence
(§ 1372). The matter was set for trial and appellant waived his right to a jury.
               The parties stipulated that the evidence at trial would consist of the victims'
recorded police interviews, the recording of D. and appellant's phone call, the police
reports, other extrajudicial statements made by the victims, and neuropsychiatric
evaluations commissioned by the defense. The evaluations recounted that appellant had

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suffered a traumatic brain injury in 1982 as the result of a motor vehicle accident that
occurred while he was driving under the influence of alcohol. Appellant was in a coma
for two months after the accident and required years of rehabilitation. He is permanently
disabled as a result of his injuries and cannot live independently. When he was evaluated
on February 10, 2010, he was able to identify current events and facts and recited
numerous details about his childhood and adult history before and after the accident.
              With regard to appellant's cognitive presentation, it was reported that he
"was able to comprehend all the directions provided and worked collaboratively
throughout the evaluation. He asked questions when he did not fully understand the task
and would request to have the evaluator slow down if he felt rushed while making his
responses. He was able to quickly switch tasks and was very compliant." Although
"[h]is thought processes were generally linear, coherent and goal-directed . . . [, h]e
demonstrated signs of executive dysfunction including some disinhibition, impulsivity
and inattention." His intellectual functioning was "in the borderline impaired range."
Appellant's I.Q. was 75, which "is only a few points higher that the Mentally Retarded
range" and "reflects a dramatic decline from an estimate of his premorbid abilities which
was in the average range." It was also noted that appellant "demonstrated limited insight
and a lack of concern of the consequences of his upcoming legal proceedings."
              The evaluators ultimately concluded that appellant "demonstrated
significant neurocognitive compromise and meets the criteria for dementia associated
with traumatic brain injury (ICD 290.0)." The evaluators further concluded that appellant
"does not have the neurocognitive capacity to safely function in the prison system. If
[appellant] is sentenced, we strongly urge the court to consider [appellant's] safety and
recommend his placement in a medically-oriented rehabilitative setting rather than the
general prison population." Another psychiatrist who evaluated appellant on October 30,
2009, concluded that he "is not mentally capable of making right judgment or to control
his impulses due to his head injury."
              Dr. Gudeman also testified as an expert on appellant's behalf. Dr.
Gudeman stated that appellant's injury damaged the areas of his brain that are responsible

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for judgment, inhibitions, and certain motor abilities, yet did not affect the areas
responsible for emotions. As a result of these injuries, appellant cannot filter out
unwanted ideas or stop himself from acting inappropriately.
              Dr. Gudeman opined that appellant was unable to formulate the desire or
intent to sexually arouse himself or the victims of his molestation. Because full sexual
desire implicates the brain's judgment functions, appellant's injuries prevented him from
formulating the mental processes necessary for such desire or intent.
              Dr. Gudeman met with appellant 29 times. During their visits, appellant
never gave a "solid answer" as to what he had done to his nieces. Only 5 to 10 percent of
their time was spent discussing appellant's sexual interests. Dr. Gudeman concluded that
appellant was "asexual" because he was not motivated to discuss sex, other than to state
he was not sexually interested in his wife. The doctor made no further attempt to explore
whether appellant had any sexual interest in children. He did not require appellant to
undergo neuropsychological testing because he believed that such tests are based on
statistics and are not subtle enough for examination of an individual patient.
              Dr. Gudeman opined that if appellant had molested his nieces and told them
not to tell their parents, he may have believed it was what the people around him wanted
him to do. The doctor further opined that appellant's underlying sexual desire is low,
although his brain injury damaged his ability to control whatever desires he had.
              At the conclusion of the trial, the court found appellant guilty on all
charged counts. The court reasoned: "I am convinced that [appellant's] brain injury did
not prevent him or interfere with his inability [sic] to act willfully, nor did it prevent him
or interfere with his ability to form the specific intent required for any of the crimes for
which he is charged and convicted. [¶] As argued by the People, if [appellant's] brain
injury was causing him to act uncontrollably or without volition, you'd expect the
criminal acts to occur in an unplanned manner, out in the open, not with stealth. But it's
very clear [appellant] made efforts to commit these offenses in secret. That seems to
contradict the suggestion that these were uncontrollable urges. [¶] The fact that
[appellant] molested [D.] in the bathroom . . . demonstrates that he not only could control

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when and where his inappropriate conduct took place, but also that it was planned and not
spontaneous. [¶] If [appellant] could not control his behavior, the Court would ask why
would he tell [D.] and [M.] not to tell their parents. It's incredulous [sic] for the Court to
entertain the notion that [appellant's] brain injury would also cause him to tell the girls to
keep it a secret. [¶] [Appellant's] brain injury I can't imagine in any way, shape or form
would also cause him to call them in an attempt to lure them into further inappropriate
conduct." The court also noted: "I did listen to the defense expert's testimony, and I'm
not persuaded by it with respect to whether [appellant] could form the requisite intent
required for the crimes charged."
                                       DISCUSSION
              Appellant contends the evidence is insufficient to support his conviction for
continuous sexual abuse of D. He claims the evidence of his brain damage precluded a
finding that his conduct was lewd and lascivious.
              In reviewing the sufficiency of evidence to support a conviction, we
examine the entire record and draw all reasonable inferences therefrom in favor of the
judgment to determine whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Streeter (2012) 54 Cal.4th 205, 241.) '"An appellate court must accept logical
inferences that the jury might have drawn from the evidence even if the court would have
concluded otherwise.'" (Ibid.) Our review does not redetermine the weight of the
evidence or the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.)
Reversal is not warranted unless "' . . . upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18
Cal.4th 297, 331.)
              Section 288.5, subdivision (a) provides in relevant part that "[a]ny person
who either resides in the same house with the minor child or has recurring access to the
child, who over a period of time, not less than three months in duration, engages in three
or more acts of substantial sexual conduct with a child under the age of 14 years at the
time of the commission of the offense, as defined in subdivision (b) of Section 1203.066,

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or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a
child under the age of 14 years at the time of the commission of the offense is guilty of
the offense of continuous sexual abuse of a child . . . ."
              For purposes of section 288.5, substantial sexual conduct is defined as
"penetration of the vagina or rectum of either the victim or the offender by the penis of
the other or by any foreign object, oral copulation, or masturbation of either the victim or
the offender." (§ 1203.066, subd. (b).) Lewd or lascivious conduct is any act done "with
the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of
[the offender] or the child . . . ." (§ 288, subd. (a).) A conviction under section 288.5
based on substantial sexual conduct is a general intent crime, requiring only a showing
that the defendant acted willfully, i.e., intended to engage in the particular conduct. A
conviction based on lewd or lascivious conduct is a specific intent crime, which requires
the prosecution to prove the defendant intended to commit the act for the purpose of
sexual gratification. (People v. Warner (2006) 39 Cal.4th 548, 557; People v. Whitham
(1995) 38 Cal.App.4th 1282, 1292.)
              Appellant's attack on the sufficiency of the evidence only challenges the
"lewd and lascivious conduct" theory of guilt. Although appellant notes the court as trier
of fact concluded that appellant's brain injury did not interfere with his "ability to form
the specific intent required for any of the crimes for which he is charged and convicted,"
the court also found that the injury did not affect is ability "to act willfully[.]" Moreover,
the prosecutor argued that appellant was guilty of engaging in both substantial sexual
conduct and lewd or lascivious conduct. As the prosecutor stated, the undisputed
evidence that appellant touched D.'s vagina on three to five separate occasions was
sufficient by itself to convict him under section 288.5 on the theory that he continuously
engaged in substantial sexual conduct with the child. (See People v. Chambless (1999)
74 Cal.App.4th 773, 782-787, interpreting former Welf. & Inst. Code, § 6600.1 ["[A]ny
contact, however slight of the sexual organ of the victim or the offender would be
sufficient to qualify as masturbation and in turn as substantial sexual conduct"].)


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              The evidence is also sufficient to support appellant's conviction of
continuous sexual abuse of a child on the theory that he engaged in three or more acts of
lewd or lascivious conduct. In arguing otherwise, appellant focuses exclusively on the
evidence he offered to prove that his brain injury rendered him incapable of forming the
requisite intent to act for the purpose of sexual gratification. He fails however, to
acknowledge the evidence that supports a contrary conclusion. Most notably, appellant
admitted being sexually excited by the fact that his victims were pre-pubescent. He also
admitted knowing that his conduct was wrong, and further demonstrated that knowledge
by committing the abuse clandestinely and telling his victims to keep it a secret. All of
this evidence belies the testimony of appellant's psychiatrist, who acknowledged that he
and appellant had only briefly discussed appellant's sexual interest. In light of the
discrepancies between appellant's proffered evidence and his own admissions, the court
as trier of fact could logically infer that appellant's brain injury did not interfere with his
ability to form the requisite intent to sexually abuse D. Appellant's claim of insufficient
evidence accordingly fails.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                            PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




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                                 Kevin DeNoce, Judge

                            Superior Court County of Ventura

                           ______________________________


             Richard C. Gilman, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Chung L. Mar,
Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.




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