Filed 11/18/15 P. v. Moreno CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068014
         Plaintiff and Respondent,
                                                                         (Kings Super. Ct. No. 12CM8517)
                   v.

EDGAR ANTONIO MORENO,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
         Julia Freis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
                                      INTRODUCTION
       Defendant pled no contest to a residential burglary charge and was placed on
probation. Defendant had also been charged with several crimes for allegedly raping the
victim, but all charges beyond the residential burglary were dropped after two mistrials.
       After a probation revocation hearing, defendant was found to have violated his
probation months later by sexually assaulting a different woman. The court sentenced
defendant to an aggravated term of six years, despite having apparently given an
indicated sentence of four years before the probation revocation hearing.
       Defendant contends (1) there is insufficient evidence he violated probation, (2) the
court considered improper matters in imposing an aggravated sentence, and (3) that a
traffic infraction conviction in a separate case was improper. We will reject the first two
contentions and decline to consider the third. We affirm the judgment.
                                      BACKGROUND
       On September 7, 2012, defendant was charged with residential burglary (Pen.
Code, § 459),1 assault with intent to commit rape (§ 220, subd. (a)), sexual penetration by
force (§ 289, subd. (a)(1)), kidnapping to commit rape (§ 209, subd. (b)(1)), two counts
of attempted oral copulation (§§ 664/288a, subd. (c)(2)), forcible sexual intercourse
(§ 261, subd. (a)(2)), and false imprisonment (§ 236) in a first amended information. The
information also alleged that defendant committed forcible sexual intercourse during the
commission of a first degree burglary, and kidnapped the victim substantially increasing
the risk of harm to her.2 (§§ 667.61, subds. (a), (d).) These alleged crimes concerned
victim, J.E.



       1   All further statutory references are to the Penal Code unless otherwise stated.
       2
       The charges outlined above were contained in a first amended information,
which was filed after the first of two mistrials.


                                               2.
       On September 10, 2012, after two mistrials,3 defendant pled no contest to the
residential burglary charge, and the remaining charges and allegations were dismissed.
On October 16, 2012, defendant was placed on probation for three years. One of the
terms of defendant’s probation was that he “[o]bey all laws.”
       On February 4, 2013, the government requested a hearing claiming that defendant
had violated his probation by sexually battering a woman named M.A.4 on or about
January 27, 2013. Defendant was also separately charged with sexual battery for the
same conduct in a misdemeanor complaint. (§ 243.4)
       The misdemeanor complaint and the violation of probation allegation were heard
simultaneously before a judge and jury in July 2013. Thereafter, the jury acquitted
defendant of sexual battery, but the trial court found that defendant had in fact committed
the sexual battery. Consequently, the court terminated probation and sentenced
defendant to a prison term of six years.
       After the court remanded defendant to the custody of the sheriff, it noted that
defendant “has a traffic case, and that’s case number A159064, and that is for, looks like
failure to stop in violation of Vehicle Code Section 22450 as an infraction.” Defendant
pled no contest and the court imposed several fines.




       3   The mistrials occurred in December 2011 and September 2012.
       4
      M.A. was an adult at the time of the incident, but her first name is arguably
uncommon so we have chosen to suppress it for privacy reasons.


                                             3.
                                          FACTS
       Defendant mounts a substantial evidence challenge against the trial court’s finding
that he violated his probation by sexually assaulting M.A. in 2013. Therefore, the
following facts are taken from the probation revocation hearing (i.e., the hearing at which
the allegedly insufficient evidence was adduced).
       Evidence concerning the J.E. incident was also admitted at the probation
revocation hearing as propensity evidence. Because the ultimate factual issue at the
probation revocation hearing was whether defendant sexually assaulted M.A., we begin
with the evidence concerning that incident and then proceed to describe the propensity
evidence concerning the earlier J.E. incident.
       A. M.A.
       On January 27, 2013, M.A. went to a small party in Avenal at the home of
someone named Javier. Not many people were there, but everyone was drinking.
       Defendant, whom M.A. had met on approximately two prior occasions, was also
there at some point. M.A. “may have said hi” to defendant but otherwise did not interact
with him at the party.
       Between 11:00 p.m. and 3:00 a.m., M.A. drank three glasses of wine. She began
to feel intoxicated and tired, so she left the house and went to her car around 3:00 a.m.
She asked another partygoer, Daniel,5 to come with her to the car, which was across the
street from the party. M.A. sat in the front passenger seat, and Daniel sat in the driver’s
seat. She closed her eyes and drifted in and out of sleep.
       About 10 minutes later, M.A. heard the car door open. She was awakened by the
feeling of someone’s hand caressing her vagina for four to five seconds. The person also
kissed her, forcing his tongue into her mouth. She opened her eyes and saw defendant.

       5We refer to the other partygoers by their first names to “give them some limited
measure of privacy ….” (Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1251,
fn. 1.)


                                             4.
She was startled, and defendant was scared. Defendant “backed off.” M.A. yelled,
“[W]hat the f[**]k?” No one else was in the car.
       M.A. began crying hysterically. Defendant got out of the car and went in the
opposite direction of the party. Two to five minutes later, M.A. saw defendant’s brother,
Antonio Moreno, run in the same direction defendant had gone. M.A. went back to the
party where Daniel and two other partygoers, Hailey and Mariah, approached her. M.A.
told Hailey and Daniel what had happened. After she told them about the incident,
nobody “ma[de] it an issue” (i.e., no one tried to figure out where defendant went), so
M.A. called her boyfriend, Steve.
       M.A. told Steve what had happened, and he came to pick her up. He wanted to
confront defendant, so he and M.A. went to defendant’s house. The confrontation lasted
“maybe” 15 or 20 minutes and there was “a lot of arguing.”6
       M.A. was embarrassed and did not immediately call the police. After the incident,
Hailey and Steve told M.A. about a “previous case” involving defendant. She eventually
called the police a couple days after the incident.
       M.A. had never given defendant permission to touch her.
       B. Steve’s Testimony
       Steve testified that M.A. called him after midnight early one morning in January.
Initially, he could not understand M.A. because she was crying. Eventually, she told him
that she was asleep in her car and woke up with defendant on top of her.
       Steve headed toward Avenal and called defendant. Steve said, “[W]hat the f[**]k
is your problem?” Defendant said, “[W]hat are you talking about, bro[?]” Steve told
defendant he knew what Steve was talking about. Defendant told Steve to “come over




       6This quotation concerning arguing was taken from the question posed by counsel
to which M.A. responded affirmatively.


                                              5.
here and let me tell you what really happened.” Defendant told Steve that he “wasn’t the
first one in the car.”
       C. Hailey
       Hailey attended the party at Javier’s house in January. Sometime after midnight
M.A. came inside the house crying. She told Hailey that “Tony’s brother” had “tried,
like, kissing her and he tried touching her.”
       D. Daniel
       Daniel testified that he walked M.A. to her car sometime after midnight. Daniel
sat in the driver’s seat, and she sat in the passenger seat while Daniel spoke with two
other people standing outside the car. After about five or 10 minutes, M.A. was asleep.
At that point, Mariah left the party upset, so Daniel and one of the people he had been
talking to left to follow her. Daniel left the driver’s door open.
       After a matter of minutes, Daniel returned and found M.A. still in the car. She
was “concerned” and said that defendant had touched her. Daniel “didn’t really pay
much attention” to M.A.’s comment because “she had drank, so I wasn’t really sure.”
       E. Mariah
       Mariah also attended the party at Javier’s house. Mariah did not see M.A. walk to
her vehicle and never saw her inside her vehicle. Mariah testified she did leave the party,
but she did not recall being upset or seeing anyone following her.
       F. Antonio Moreno
       Defendant’s brother, Antonio Moreno (Antonio),7 testified that he attended the
party at Javier’s house. Antonio spoke with defendant at the party. Defendant told
Antonio he was leaving and left the party between 2:00 and 2:30 a.m. Forty-five minutes
after defendant said he was leaving, Antonio first saw signs that M.A. was distraught.


       7
       Since he shares a last name with the defendant, we refer to Antonio Moreno as
“Antonio.” No disrespect is intended.


                                                6.
Antonio overheard M.A. telling her friends that defendant had tried to kiss her in the car.
She was “really emotional.” Antonio did not hear her say anything about defendant
trying to touch her “private parts.”8
       Antonio testified that Steve was his best friend. Steve called Antonio and said he
was going to “beat up” defendant at Antonio’s house. Antonio ran home and called
defendant. Steve came to the house and confronted defendant aggressively. Several
other partygoers had also come to Antonio’s house.
       G. Defendant
       Defendant testified that he went to Javier’s party around 1:30 a.m. He did not
drink and left around 2:30 a.m. About three to five minutes before he left, defendant
observed Daniel walk outside. Defendant went home, worked on homework and then
went to sleep around 3:45 a.m.
       Defendant was awakened at about 4:00 a.m. by a call from his brother, Antonio.
Antonio told him that M.A. had said defendant kissed her. Then Steve called and asked
“what the f[**]k was wrong with” him. Defendant said he did not know what Steve was
talking about. When defendant eventually tried to explain himself, Steve just threatened
him with physical violence.
       Antonio eventually arrived home and spoke with defendant. About 10 minutes
later, M.A. and Steve arrived at defendant’s house. Steve rushed toward defendant, but
Antonio got between the two. Defendant tried to talk, but Steve would not let him. M.A.
ran up to defendant and hit him in the face.
       At one point during the encounter at defendant’s house, Daniel told Steve that he
never saw defendant around the car. Steve said he did not believe Daniel.




       8   This quotation is from counsel’s question.


                                               7.
          H. Propensity Evidence: J.E.’s Testimony
       The prosecution also called J.E. concerning the January 2011 incident from which
defendant’s burglary conviction arose.
       In January 2011, J. was living in Avenal. One day, around 6:00 or 7:00 p.m.,
defendant was walking by J.’s house and asked for her son, N. She told defendant to
“hang on” because she was getting groceries out of her car. Defendant returned a “little
bit later” and knocked on the door asking for N. J. told him N. was in the shower.
       Later that night, J. fell asleep on her couch. She was awakened and felt someone
on top of her, pulling down her pajama pants. She struggled, grabbed her pants, trying to
pull them up and yelled for the person to stop. She felt scared and was hysterical.
       J. then felt something “trying to [be] insert[ed] into my rectum.” She did not
know whether it was an object, a penis, or fingers. She was screaming for her son.
       J. was eventually able to get up on the edge of the couch and sit up. Defendant
had his faced covered and was standing in front of her, holding her head. Defendant
pulled her face toward his groin and told her to “suck it.” She tried to bite defendant on
his thigh. Defendant struck her in the face, causing a “big ringing” in her ear.
       Defendant dragged J. by her hair down the hall to her bedroom. Defendant threw
her on the bed, pulled her head down toward his penis and told her to “suck it.”
Defendant pulled off her pants and underwear and began having sexual intercourse with
her. The intercourse was not consensual. The intercourse was painful for her, and she
was crying, asking him to stop.
       At one point during intercourse, defendant began licking J.’s neck. When that
happened, defendant’s face was no longer obstructed, and she was able to see that it was
defendant. After defendant ejaculated on her bed, he told J. not to look at him and left.
Shortly thereafter, J. moved to her mother’s house and never returned.




                                             8.
       I. Defendant’s Testimony
          1. Direct Examination
       Defendant testified that around 11:30 p.m. on the night in question, he was
walking down the street. J. was outside smoking a cigarette in her driveway. She asked
defendant where her son, N., was. Defendant said he thought N. was at a party. J. then
asked defendant if he could “give [her] a hand inside of the house.”
       Defendant followed J. into her house. Defendant could tell by “the way she was
talking [that] she was drunk.” Defendant also “believe[s]” he saw a bottle of wine on the
table. J. called defendant toward her and he kissed her. She did not seem frightened, did
not scream, and did not tell him to stop. J. then led defendant to her bedroom. She got
onto the bed, and defendant “believe[s]” she unzipped his pants. The two then had
consensual vaginal intercourse. J. made “moaning” sounds during intercourse, and did
not scream. “Toward the end” she said, “[F**k] Nick.” Defendant said it “started to
seem awkward.”
       After defendant ejaculated, he told J. he was leaving. Defendant “believe[s]” she
then asked where he was going. Defendant said he was going home, and she responded
that if he left, she would tell the cops that he had raped her. Defendant “got scared” and
walked out. She tried to grab him as he left the bedroom. Defendant reacted by telling
her to “back up” and swinging his elbow. Defendant “didn’t know how close she was
and it hit her in the face, I believe, because I felt something. But she never said ow or
nothing. I just walked out and she followed behind me.”
       When defendant first spoke to police officers after the intercourse, he made up a
story. Police officers spoke to defendant a second time and, again, he made up a story.
Defendant said he lied because he was scared of J.’s threat. Defendant was also
embarrassed at the potential of his own mother and N. learning about the incident.
Defendant claims he finally told the truth in his third statement, after an hour or two with
law enforcement.

                                             9.
       Defendant testified he did not have anything covering his face during the
encounter. Defendant acknowledged that he had been convicted of a felony burglary
occurring on January 27, 2011.
            2. Cross-Examination
       Defendant admitted on cross-examination that he had a girlfriend at the time of the
incident.
       Defendant admitted that he knew he went into J.’s house wearing a specific jersey
and left without it.9 Defendant also admitted lying to police officers afterwards by
falsely recounting that he had been accosted that night by four or five unidentified
persons who eventually left with his jersey. Defendant lied because he was scared the
presence of his jersey in J.’s home could implicate him in a crime.
       One of the officers told defendant there was semen located at the scene of the
crime. Defendant admitted that he lied to the officer in response by saying the DNA
would not match his.
                                      DISCUSSION

I.     SUBSTANIAL EVIDENCE SUPPORTS THE TRIAL COURT’S FINDING
       THAT DEFENDANT VIOLATED PROBATION
       Defendant contends there was insufficient evidence to support the trial court’s
finding that he had violated his probation.
       A. Law
       Probation may be revoked when a trial court “in its judgment, has reason to
believe … that the person has violated any of the conditions of his or her supervision …
or has subsequently committed other offenses, regardless whether he or she has been
prosecuted for such offenses.” (§ 1203.2, subd. (a).) The “facts in a probation revocation


       9 In the second mistrial, J. testified that a white jersey was found in her hallway
after the incident. N. identified the jersey as belonging to defendant.


                                              10.
hearing [are] provable by a preponderance of the evidence.” (People v. Rodriguez (1990)
51 Cal.3d 437, 441.)
       “We review a probation revocation decision pursuant to the substantial evidence
standard of review [citation], and great deference is accorded the trial court’s decision,
bearing in mind that ‘[p]robation is not a matter of right but an act of clemency, the
granting and revocation of which are entirely within the sound discretion of the trial
court. [Citations.]’ [Citation.]” (People v. Urke (2011) 197 Cal.App.4th 766, 773.)
              1. Analysis
       Defendant concedes that M.A.’s own testimony constitutes evidence he committed
the sexual battery, but argues that her level of intoxication, lack of corroborating
evidence and contrary witness testimony rendered her testimony insufficient.
       But even if the state of the evidence were as defendant describes it, the standard of
review renders his argument a non sequitur. “ ‘ “To warrant the rejection of the
statements given by a witness who has been believed by a trial court, there must exist
either a physical impossibility that they are true, or their falsity must be apparent without
resorting to inferences or deductions.” [Citations.]’ ” (People v. Ennis (2010) 190
Cal.App.4th 721, 728–729.) The court was fully apprised of the evidence concerning
M.A.’s drinking at the party and nonetheless chose to largely accept her account. We
may not second guess the trial court on that decision.
       Defendant outlines other evidence that, in his view, contradicts M.A.’s testimony.
For example, defendant contends that certain testimony indicated that he was only at the
party from 1:00 a.m. or 1:30 a.m. until 2:30 a.m.,10 yet one witness said M.A. came
inside the party crying at 4:00 a.m.11 Again, all these arguments are foreclosed by the

       10 To support the claim he left at 2:30 a.m., defendant cites only his own testimony
and that of his brother. He then argues that no witness contradicted this claim.
       11The witness actually testified: “Maybe four [a.m.] I really don’t know. I wasn’t
keeping track of time.”


                                             11.
standard of review. In order for us to reject testimony accepted by the trial court, the
testimony “must be improbable ‘ “on its face” ’ [citation], and thus we do not compare it
to other evidence .… The only question is: Does it seem possible that what the witness
claimed to have happened actually happened? [Citation.]” (People v. Ennis, supra, 190
Cal.App.4th at p. 729, italics in original.) M.A.’s account is not impossible nor is it
clearly false on its face. Our inquiry ends there.12

       B. There is No Basis to Overturn the Lower Court’s Sentencing Decision
            1. Background Facts and Defendant’s Contention
       Defendant next challenges his sentence, arguing the court improperly imposed an
aggravated term of six years when it had given an indicated a sentence of four years
before the probation revocation hearing started.13
       When imposing the aggravated sentence, the court identified several factors in
aggravation: Defendant’s crime was violent, indicating a serious danger to society; his
prior convictions and juvenile adjudications were numerous and increasing in
seriousness; he was on probation when he committed the crime; and his prior
performance on probation was unsatisfactory. Defendant contends that the court did not

       12 Defendant contends the propensity evidence concerning his alleged rape of J. is
inadmissible notwithstanding Evidence Code section 1108. However, defendant does not
contend that the trial court improperly considered the propensity evidence. Defendant
raises the issue only in support of his claim that we should not consider the propensity
evidence in determining whether substantial evidence supports the trial court’s finding.
      We need not address defendant’s contention concerning Evidence Code section
1108 because we conclude that M.A.’s testimony alone, without the propensity evidence,
was sufficient. In other words, even if we agreed with defendant’s contention concerning
Evidence Code section 1108 and refused to consider the propensity evidence on appeal,
we would nonetheless conclude that the trial court’s finding was supported by substantial
evidence.
       13 The only record citation defendant provides for the court’s indicated sentence of
four years is his own sentencing memorandum. However, the Attorney General does not
dispute that the trial court had, in fact, given a four-year indicated sentence as recounted
by defendant.


                                             12.
actually rely on these factors but instead had improperly considered defendant’s exercise
of his right to a trial or some of the testimony at the probation revocation hearing.

              a. Law Concerning Improper Sentencing Considerations
       When sentencing a defendant on revocation of his probation, “[t]he length of the
sentence must be based on circumstances existing at the time probation was granted, and
subsequent events may not be considered in selecting the base term.…” (Cal. Rules of
Court, rule 4.435 (b)(1).) As a result, the court was precluded in this case from
considering the incident involving M.A. in determining defendant’s sentence for the
burglary conviction arising from the incident involving J..
       Additionally, a sentencing court may not punish a defendant more severely merely
because he exercised his right to a trial. (People v. Superior Court (Felmann) (1976) 59
Cal.App.3d 270, 276.) However, this rule is not violated every time a defendant is
subjected to a harsher sentence after declining to plead guilty pretrial pursuant to an
indicated sentence. While a court may not sentence a defendant more harshly because he
exercised his right to a trial; a court may nonetheless sentence a defendant more harshly
after he exercises his right to a trial so long as the enhanced sentence is not imposed as a
result of defendant’s choice to go to trial. (See In re Lewallen (1979) 23 Cal.3d 274, 281
[“under appropriate circumstances a defendant may receive a more severe sentence
following trial than he would have received had he pleaded guilty; the trial itself may
reveal more adverse information about him than was previously known”].) In other
words, chronology is not determinative of causation.

              b. Defendant Has Failed to “Clearly Show” the Sentencing Court Relied
                 on Improper Considerations
       Defendant contends that the court must have improperly considered his choice to
go to trial because “[t]he only thing that had changed between when the trial court
indicated a sentence of 4 years and when the trial court imposed a sentence of 6 years



                                             13.
was that [defendant] had gone to trial and been acquitted of the sexual battery charge.”
But that is not the only new information the court received after giving the indicated
sentence before the probation revocation hearing started. J. herself addressed the court at
the sentencing hearing on August 8, 2013. She said that the night defendant raped her, he
took her pride and safety away from her. As a result, she felt she had to move away from
her childhood home, which had been in her family for more than 35 years.14 J. said she
hoped the court would give defendant “the maximum sentence possible.” The court was
required to consider J.’s statements in imposing defendant’s sentence (§ 1191.1), and we
assume it did so. (Evid. Code, § 664.)
       In sum, there are two possible inferences to be drawn from the record: Either the
(1) sentence of six years was impermissibly based on defendant’s choice to go to trial
and/or his conduct after probation was imposed, or (2) the sentence was based solely on
permissible considerations. “ ‘The burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives.…’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14
Cal.4th 968, 977–978.) Defendant has not “clearly shown” the sentencing court relied on
improper considerations, rather than proper ones such as J.’s statement at the sentencing
hearing. Instead, defendant has merely pointed to one of several inferences concerning
the trial court’s motivation in imposing an aggravated sentence. This is insufficient to
carry his “clear showing” burden, and we will presume the trial court imposed his
sentence in accordance with “legitimate sentencing objectives.” (Ibid.)


       14  The sentencing court also received a probation report prepared dated August 3,
2013. The report contained new information, including defendant’s post-hearing
statement to the probation officer, and letters from friends and family. In two of those
letters, defendant’s mother and aunt each separately refer to the allegations against
defendant as a lie.


                                            14.
            2. We Do Not Consider Defendant’s Arguments Concerning his Conviction in
               Case No. A159064
       In his briefing, defendant also challenges his conviction in case No. A159064
apparently concerning a Vehicle Code infraction. However, the record shows no timely
notice of appeal filed in that case.15 We therefore will not review that conviction from a
separate case in this appeal.
                                     DISPOSITION
       The judgment is affirmed.


                                                                _____________________
                                                                POOCHIGIAN, J.

WE CONCUR:


______________________
HILL, P.J.


______________________
FRANSON, J.




       15 In a separate order dated September 24, 2014, this court denied defendant’s
request to deem his notice of appeal in case No. 12CM8517 to be a constructive notice of
appeal in case No. A159064.


                                            15.
