Filed 2/6/14 P. v. Jaurique CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C069319

         v.                                                                      (Super. Ct. No. 11F01083)

LOUIS C. JAURIQUE,

                   Defendant and Appellant.




         A jury convicted defendant Louis C. Jaurique on four counts of lewd and
lascivious conduct with a child under the age of 14. The trial court sentenced him to an
aggregate of 12 years in prison.
         Defendant now contends (1) one of the convictions on count three or count four
must be reversed because there was insufficient evidence to support two distinct lewd
acts; (2) the trial court failed in its sua sponte duty to instruct that the act for each
conviction must be distinct; (3) in the alternative, if defendant is deemed to have forfeited


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his claim of instructional error, then he was denied effective assistance of counsel when
his lawyer failed to request a modified instruction; (4) defendant was also denied
effective assistance of counsel when his lawyer failed to object to the imposition of
consecutive sentences on counts three and four; and (5) the trial court should have stayed
sentence on count three or count four pursuant to Penal Code section 654.1
       We conclude (1) the convictions on counts three and four are supported by
sufficient evidence; (2) the trial court did not have a sua sponte duty to provide additional
instruction and it did not commit instructional error; (3) defendant’s trial counsel was not
deficient in failing to request a modified instruction; (4) even if defendant’s trial counsel
was deficient in failing to object to the consecutive sentences on counts three and four,
defendant has not established prejudice; and (5) substantial evidence supports the implied
finding of separate criminal objectives for each offense.
       We will affirm the judgment.
                                      BACKGROUND
       The victim lived with her great-grandmother from 1997 until 2007. Other
relatives also lived there, including defendant, the victim’s great-uncle. The victim’s
mother visited her regularly. The crimes occurred between 2002 and 2005, when the
victim was between six and nine years old.
       In May 2010, the victim informed her aunt that, years earlier, the defendant had
touched her sexually. The aunt called the victim’s mother and invited her to join the
conversation. The victim confirmed the molestation but did not provide details. The
victim said the only reason she reported the molestation when she did was that she was
scared for her five-year-old cousin, defendant’s granddaughter, whom defendant had
been treating “really nicely like he used to treat me.”




1 Undesignated statutory references are to the Penal Code.


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       The mother informed the great-grandmother but did not call police that day
because she feared they might lose the girl to “the system” and never see her again.
Eventually, however, the victim’s family contacted child protective services.
       A detective from the police department’s sexual assault child abuse unit conducted
an investigation. He arranged for the victim to be interviewed in early 2011 by a forensic
interview specialist at the safe center. The detective witnessed the interview and testified
at trial that the victim told the interviewer about an incident when she was between five
and nine years old, while her grandmother and defendant’s wife were working and she
and defendant were in his bedroom with the door closed. The victim said the defendant
placed his hand on her vagina but was interrupted when another aunt living in the house
knocked on the door. The victim testified at trial that defendant touched the inside of her
vagina.
       In testifying about the interview, the detective said the victim described another
incident when she was about eight years old. The victim said she and defendant were
alone in his bedroom when defendant touched both the inside and outside of her vagina.
At trial, the victim testified that she had been lying on defendant’s bed when he began
masturbating. But when asked if defendant touched her, she replied, “I don’t think so.”
       The victim was 15 years old at the time of trial. She answered questions
reluctantly. She said she had never discussed the details of the incidents prior to trial
except during the safe center interview. She had not given details to relatives and had
refused to talk to a counselor. She said defendant told her that if she told others about the
sexual incidents, he would get in trouble.
       Additional facts will be referenced in the discussion as relevant to the contentions
on appeal.




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       The jury convicted defendant on four counts of lewd and lascivious conduct with a
child under the age of 14 (§ 288, subd. (a) -- counts one, two, three and four).2 The trial
court sentenced defendant to 12 years in prison, consisting of six years on count one and
two consecutive years each for counts two, three and four.
                                      DISCUSSION
                                             I
       Defendant contends one of the convictions on count three or count four must be
reversed because there was insufficient evidence to support two distinct lewd acts. On
count three, the jury convicted defendant for placing his hand “on” the victim’s vagina;
on count four, the jury convicted defendant for placing his finger “in” the victim’s
vagina. The victim told the safe center interviewer that defendant “touch[ed] her vagina
on the inside and also [on] the outside” while they were on his bed and “everyone was at
work.” The jury had to have credited the victim’s interview statement in order to convict
defendant on counts three and four.
       Defendant argues, however, that there was no evidence the acts were distinct. He
claims there must be substantial evidence that he stopped touching one area of the
victim’s body before touching the other, as opposed to touching outside and inside in a
“single continuous motion.” We disagree.
       In reviewing the sufficiency of the evidence, we presume the existence of “every
fact the jury could reasonably deduce from the evidence” in support of the judgment.
(People v. Bloyd (1987) 43 Cal.3d 333, 346-347.) Moreover, “[e]ven in the absence of
testimony describing the precise sequence of the various acts,” a jury can reasonably




2 Count two of the information charged defendant with lewd and lascivious conduct with
a child under the age of 14 by use of force. (§ 288, subd. (b)(1).) The jury found him not
guilty of violating section 288, subdivision (b)(1), but found him guilty of the lesser
included offense of violating section 288, subdivision (a).

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conclude that multiple lewd acts and multiple violations of section 288 occurred.
(People v. Scott (1994) 9 Cal.4th 331, 348.) Specifically, this court held that when a
defendant “stopped rubbing an area and inserted his finger in [the victim’s] vagina, . . . he
stopped one lewd act and began another. There is no requirement that there be a delay
between the completion of one act and the commencement of another.” (People v.
Jimenez (2002) 99 Cal.App.4th 450, 456-457.)
        Here, there is sufficient evidence to support the convictions on counts three and
four.
                                               II
        Defendant next claims the trial court failed in its sua sponte duty to instruct the
jury that the act for each conviction must be distinct.
        The trial court instructed the jury with CALCRIM No. 1110, which sets forth the
elements of Penal Code section 288, subdivision (a). Later, during deliberations, the jury
asked why counts three and four were charged separately when they occurred on the
same day. The trial court responded in writing, without objection from counsel, as
follows: “You must base the decisions you make on the facts and the law provided to
you during the trial. First, you must determine the facts from the evidence received in the
trial, and not from any other source. Second, you must accept and follow the law as
stated in my instructions. [¶] The allegations are reflected in the verdict forms for each
of the counts. [¶] The Court directs you to continue with your deliberations.”
        Defendant claims the trial court should have instructed the jury with the following
additional language contained in the bench notes for CALCRIM No. 1110: “Each
individual act that meets the requirements of section 288 can result in a new and separate
statutory violation. [Citations.] For example, if a defendant fondles one area of a
victim’s body with the requisite intent and then moves on to fondle a different area, one
offense has ceased and another has begun. There is no requirement that the two be



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separated by a hiatus or period of reflection.” (Bench Notes to CalCRIM No. 1110
(Apr. 2011 Supp.), pp. 101-102.)
       The proposed language is consistent with our conclusion in part I, ante, and with
this court’s holding in People v. Jimenez, supra, 99 Cal.App.4th at pp. 456-457. In fact,
Jimenez is cited in the bench notes. Nonetheless, defendant argues that without the
additional bench note language, the jury might have found defendant guilty of separate
offenses because he touched different parts of the victim’s body. But the bench note
language would not instruct otherwise; it says touching separate places can lead to
separate offenses even if there has been no temporal interruption. In any event, the jury
was instructed with CALCRIM No. 3515 [multiple counts: separate offenses] and
CALCRIM No. 3550 [pre-deliberation instructions, including unanimity instructions].
       Under the circumstances, the trial court did not have a sua sponte duty to provide
additional instruction from the bench notes, and it did not commit instructional error.
                                             III
       Defendant further asserts that if he is deemed to have forfeited his claim of
instructional error, then he was denied effective assistance of counsel when his lawyer
failed to request a modification of CALCRIM No. 1110. Of course, we did not deem his
instructional error claim forfeited; we addressed it on the merits because he argued the
trial court breached a sua sponte duty. Nonetheless, to the extent he now contends his
trial counsel was ineffective for failing to request a modified instruction, we address that
claim in this part.
       To establish a violation of the constitutional right to effective assistance of
counsel, defendant must show that counsel’s performance failed to meet an objective
standard of reasonable competence and also that it undermined the adversarial process so
much that “ ‘the trial cannot be relied on as having produced a just result.’ ” (People v.
Mayfield (1997) 14 Cal.4th 668, 783-784, quoting Strickland v. Washington (1984) 466
U.S. 668, 686 [80 L.Ed.2d 674, 692-693].)

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       We have already explained that the bench note language was not required. Under
the circumstances, defendant’s trial counsel was not deficient in failing to request such
language. Moreover, there was no prejudice because the language was consistent with
the jury verdicts.
                                             IV
       Defendant asserts his trial attorney was also ineffective when he failed to object to
the imposition of consecutive sentences on counts three and four.
       The trial court imposed the middle term of six years on count one, and two
consecutive years each for counts two, three and four. After imposing sentence on the
first count, the trial court said: “In Counts Two through Four, they are all violations of
Section 288, sub[division] (a) of the Penal Code involving the same victim, but occurring
on separate occasions.” Defendant argues his trial attorney should have objected because
there is no evidence that counts three and four occurred on separate occasions.
       In addressing the criteria affecting consecutive or concurrent sentences, the
probation report said the crimes “involved separate acts of violence” (Cal. Rules of
Court, rule 4.425(a)(2)) and “were committed at different times and separate places,
rather than being committed so close in time and place as to indicate a single period of
aberrant behavior.” (Cf. Cal. Rules of Court, rule 4.425(a)(3).) For counts two through
four, the probation report recommended sentencing defendant to one-third the midterm,
or two years, on each count, to be served consecutively, pursuant to California Rules of
Court, rule 4.25(a)(2) and (3).
       We conclude that even if defendant’s trial counsel was deficient in failing to
object to the consecutive sentences, defendant has not established prejudice, because the
evidence establishes that the convictions on counts three and four did not involve “a
single period of aberrant behavior.” (Cal. Rules of Court, rule 4.425(a)(3).)
       There was no constitutional violation. (See People v. Mayfield, supra, 14 Cal.4th
at pp. 783-784.)

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                                             V
       Finally, defendant argues the trial court should have stayed sentence on count
three or count four pursuant to section 654. As we have explained, the jury convicted
defendant on count three for placing his hand on the victim’s vagina, and convicted him
on count four for placing his finger in the victim’s vagina.
       Section 654, subdivision (a) provides, in relevant part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” “The purpose of
section 654 is to ensure that a defendant's punishment is commensurate with his
culpability and that he is not punished more than once for what is essentially one criminal
act.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.) Determining whether a
course of criminal conduct is essentially one act, courts look to the defendant’s objective
and intent. (Id. at p. 1253.)
       In a case where sexual gratification was the single apparent motive, a defendant
was properly sentenced for each of three separate counts of the same sexual assault crime
when the victim twice pulled away and the defendant persisted. (People v. Harrison
(1989) 48 Cal.3d 321, 338.) “[S]ection 654 does not preclude separate punishment for
multiple sex offenses which, although closely connected in time and part of the same
criminal venture, are separate and distinct, and which are not committed as a means of
committing any other sex offense, do not facilitate commission of another sex offense,
and are not incidental to the commission of another sex offense.” (People v. Castro
(1994) 27 Cal.App.4th 578, 584-585.) But when a defendant has been convicted of sex




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crimes that are incidental to the commission of others, sentencing for the incidental
crimes is stayed. (People v. Perez (1979) 23 Cal.3d 545, 551.)3
       We agree with the Attorney General that this is a close question. But as defendant
acknowledges, we cannot assume that the fondling offense in count three is incidental to
the digital penetration in count four. (People v. Scott, supra, 9 Cal.4th at p. 347, fn. 9.)
When a trial court sentences a defendant to separate terms, a finding of separate criminal
objectives for each offense is implied. (People v. Islas (2012) 210 Cal.App.4th 116,
129.) We must affirm on review if the implied finding is supported by substantial
evidence. (Ibid.)
       The record indicates a distinct difference between the acts in count three and count
four. Count three involved defendant’s hand on the outside of the victim’s vagina; count
four involved the penetration of his finger inside her vagina. Just as in People v. Alvarez
(2009) 178 Cal.App.4th 999, the record here is “entirely susceptible of the interpretation”
that defendant used his hand on the outside of the victim’s vagina for the purpose of his
own arousal “and that, in doing so, he was not facilitating any other form of sexual
contact, although that is where things ultimately led.” (Alvarez, supra, 178 Cal.App.4th




3 After the trial court sentenced defendant in this case, the California Supreme Court
held that section 654 “does not bar multiple punishment for violations of the same
provision of law.” (People v. Correa (2012) 54 Cal.4th 331, 344.) That holding applies
prospectively (ibid.), but the Supreme Court relied on the reasoning of prior decisions,
namely that a “ ‘ “defendant who attempts to achieve sexual gratification by committing a
number of base criminal acts on his victim is substantially more culpable than a
defendant who commits only one such act.” ’ ” (Id. at p. 342, quoting People v.
Harrison, supra, 48 Cal.3d at p. 336.)

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at p. 1007.) Each lewd act was separate and distinct. Substantial evidence supports the
implied finding of separate criminal objectives for each offense.
                                     DISPOSITION
       The judgment is affirmed.


                                                               MAURO                  , J.


We concur:


             BLEASE                   , Acting P. J.


             HULL                     , J.




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