Filed 5/31/16 P. v. Yanez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050204

         v.                                                            (Super. Ct. No. 12WF3529)

VENANCIO YANEZ,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Kimberly
Menninger, Judge. Affirmed.
                   Nancy J. King, 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, Charles C. Ragland and
Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
              Appellant Venancio Yanez was convicted of continuous sexual abuse of a
child under the age of 14 and two counts each of sexually penetrating a child age 10 or
younger and committing a lewd act on a child under the age of 14. (Pen. Code, §§ 288.5,
subd. (a), 288.7, subd. (b), 288, subd. (a)).1 The jury also found the lewd acts constituted
substantial sexual conduct. (§ 1203.066, subd. (a)(8).) The trial court sentenced
appellant to prison for 15 years to life, plus 20 years. Appellant contends there is
insufficient evidence to support his conviction for continuous sexual abuse because the
record is devoid of substantial evidence he sexually abused the victim three or more times
over a period of at least three months. He also contends the trial court erred in failing to
instruct the jury on sexual penetration of a person under the age of 18 as a lesser included
offense of sexual penetration of a child age 10 or younger. Finding appellant’s
contentions unmeritorious, we affirm the judgment.
                                                  FACTS
              S.O. is appellant’s stepdaughter. She was born in June 1998, and from
2005 to 2012, she lived in Westminster with her mother, two younger siblings and
appellant. One day when S.O. was seven years old, appellant came into her room while
she was changing and touched her breasts and buttocks over her clothing. The touching
made S.O. uncomfortable, but she was too scared to tell anyone about it.
              In the wake of that incident, appellant touched S.O. inappropriately on
several other occasions. S.O., who was 15 years old at the time of trial, was unable to
recall the details of every incident. However, she testified the touching continued “pretty
much the same” during the time she was seven and eight years old. Sometimes appellant
“just touched [her] chest area,” and “sometimes he would just touch [her] butt.”
Sometimes he only touched over her clothing, and sometimes he went underneath her
clothing.


       1      All further statutory references are to the Penal Code.


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              When S.O. was nine, she and her family moved to Garden Grove, and
appellant’s abuse expanded to include her vaginal area. Appellant touched and digitally
penetrated S.O.’s vagina on multiple occasions when she was nine and ten years old.
One time during this period, appellant also had S.O. reach inside his pants and touch his
penis.
              When S.O. was 12 or 13 years old, her younger sister walked into her room
while appellant was molesting her. Her sister told their mother, who promptly kicked
appellant out of the house. But appellant moved back in two weeks later, after promising
to change his behavior. He and S.O.’s mother got married shortly thereafter, in June
2012, and things were fine for awhile.
              In November 2012, appellant relapsed and started touching S.O.
inappropriately again. S.O. told her mother about this, and on Christmas day 2012, they
went to the police and reported appellant. At an investigator’s behest, S.O. also made a
pretext call to appellant during which he apologized to her and promised not to touch her
again.
              Three days later, S.O. was interviewed by a member of the Child Abuse
Service Team (CAST). During the interview, S.O. said that starting at about the age of
seven, appellant touched her multiple times on her breasts and buttocks. And then after
she turned nine, he touched and/or penetrated her vagina about three times a week.
                                      DISCUSSION
                                Sufficiency of the Evidence
              Appellant was convicted of committing continuous sexual abuse against
S.O. between the time she turned seven (June 2005) and the time she turned nine (June
2007), in violation of section 288.5. That section makes it illegal for a person to commit
three or more acts of sexual abuse against a child under the age of 14 for a period of at




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least three months. (§ 288.5, subd. (a).) Appellant claims there is insufficient evidence
he abused S.O. in this fashion, but we disagree.2
                 “In reviewing the sufficiency of the evidence to support a criminal
conviction, we review the record ‘“in the light most favorable to the judgment to
determine whether it discloses substantial evidence – that is, 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.” [Citation.]’ [Citation.] We do not reweigh the
evidence or revisit credibility issues, but rather presume in support of the judgment the
existence of every fact that could reasonably be deduced from the evidence. [Citation.]”
(People v. Pham (2009) 180 Cal.App.4th 919, 924-925.) Where the circumstances
reasonably justify the jury’s findings, it does not matter that they might also reasonably
be reconciled with a contrary finding; reversal is not required unless there is no
hypothesis under which there is substantial evidence to support the verdict. (People v.
Manibusan (2013) 58 Cal.4th 40, 87.)
                 Appellant is correct that S.O. was unable to remember the exact dates on
which he sexually abused her. However, she testified the abuse started when she was
seven years old and continued “pretty much the same” until the time she turned nine.
Although the touching during this period was limited to S.O.’s breasts and buttocks, there
was considerable variance in terms of how it occurred from one time to another. On the
first occasion, appellant touched S.O.’s breasts and buttocks, but other times he touched
only her breasts, and still other times he touched only her buttocks. In addition,
sometimes the touching was exclusively over her clothing, and other times it included
skin-on-skin contact. Given the variety of ways in which the touching occurred, and the


         2        Although defense counsel conceded the section 288.5 charge in closing argument, that does not
obviate our duty to independently review the record and ensure the evidence was legally sufficient to justify
appellant’s conviction for that offense. (See Jackson v. Virginia (1979) 443 U.S. 307 [a conviction that lacks
substantial evidentiary support violates due process].)



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length of time over which it occurred, the jury could reasonably infer appellant sexually
abused S.O. at least three times over a period of three months or more. We therefore
reject his challenge to the sufficiency of the evidence.
                          Instruction on Lesser Included Offense
              Appellant also contends his two convictions for sexually penetrating a child
age 10 or younger (§ 288.7, subd. (b)) must be reversed because the trial court failed to
instruct the jury on the lesser included offense of sexual penetration of a person under the
age of 18 (§ 289, subd. (h)). Again, we disagree.
              Although appellant did not ask the court to instruct on this lesser offense,
“California law has long provided that even absent a request . . . a trial court must instruct
a criminal jury on any lesser offense ‘necessarily included’ in the charged offense, if
there is substantial evidence that only the lesser crime was committed.” (People v. Birks
(1998) 19 Cal.4th 108, 112.) “[A] lesser offense is necessarily included in a greater
offense if either the statutory elements of the greater offense, or the facts actually alleged
in the accusatory pleading, include all the elements of the lesser offense, such that the
greater cannot be committed without also committing the lesser.” (Id. at 117.)
              The primary difference between sections 288.7 and 289 is the age of
persons they are designed to protect. Section 288.7, subdivision (b) makes it illegal to
“engage[] in oral copulation or sexual penetration . . . with a child who is 10 years of age
or younger[.]” And section 289, subdivision (h) penalizes “any person who participates
in an act of sexual penetration with another person who is under 18 years of age[.]” In
this case, the information alleged appellant unlawfully engaged in sexual penetration with
a child age 10 or younger. Therefore, as respondent admits, section 289 was a lesser
included offense of section 288.7 under the accusatory pleading test.
              Nonetheless, there was not substantial evidence from which a reasonable
jury could conclude that only the lesser offense was committed. In particular, there was
not substantial evidence showing appellant sexually penetrated S.O. only after she turned

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11 years old. In fact, S.O. was quite clear in her testimony that appellant expanded his
abuse of her to include digital penetration of her vagina when she turned nine years old.
Describing the frequency of the abuse, she said the penetration occurred multiple times
when she was nine and ten years old. And during her CAST interview, S.O. reiterated
that after she turned nine, appellant touched and penetrated her vagina with his fingers
about three times per week. Thus, the evidence of sexual penetration centered around the
time S.O. was nine and ten years old. Although appellant continued to abuse S.O. until
she was 12 or 13 years old, it is exceedingly unlikely the jury would have concluded the
multiple instances of digital penetration she endured occurred only after the time she
turned 11. Because there was not substantial evidence to support this conclusion, the trial
court was not required to instruct the jury on the lesser included offense of sexual
penetration of a person under the age of 18.
                                      DISPOSITION
              The judgment is affirmed.



                                                   BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




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