Filed 9/27/16 P. v. Villalba CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE


THE PEOPLE,                                                          B265570

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA134302)
         v.

LARRY VILLALBA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Raul
Anthony Sahagun, Judge. Affirmed.
         John Steinberg for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Shawn McGahey Webb, Supervising Deputy Attorneys General, for Plaintiff and
Respondent.
       Defendant and appellant Larry Villalba was convicted of continuous sexual abuse
of a child (Pen. Code, § 288.5, subd. (a)1). In order to secure a conviction for this
offense, the prosecutor must prove, among other things, the defendant engaged in three or
more acts of substantial sexual conduct with the victim and three or more months passed
between the first and last act. Defendant contends there was insufficient evidence to
establish these elements of the offense. We reject this argument and affirm the judgment.


                                    BACKGROUND


       A.     Facts


              1.      Prosecution Evidence
       R.M.,2 born in October 1998, is defendant’s step-granddaughter. R.M.’s mother
married defendant’s son when R.M. was one year old.
       R.M. lived with her parents and three younger siblings in Whittier. Defendant, his
wife Cathy, and their daughter Amanda, also lived in Whittier.
       Cathy routinely picked up R.M. and her siblings after school and brought them to
defendant’s residence where Cathy babysat them until their parents picked them up after
work. Defendant had an atypical work schedule; he was home in the afternoons. Cathy
occasionally ran errands and left R.M. in defendant’s care; sometimes R.M. was left
alone with defendant (i.e., without her siblings). R.M. and her siblings also visited
defendant’s residence “practically every weekend” and “a lot” during the summers.
       R.M. testified about defendant sexually abusing her. Defendant started doing so
when R.M. was six or seven years old. On the first occasion, R.M. was sitting on the
couch in the living room watching television while defendant sat nearby using his


1
       All statutory citations are to the Penal Code unless otherwise noted.
2
        We refer to the individuals, other than defendant, either by their initials or their
first names.

                                               2
computer. Defendant called R.M. over to him and gestured for her to sit on his lap. After
R.M. climbed onto defendant’s lap, he put his hands inside her pants and underwear and
inserted his fingers into her vagina. Defendant continued “fingering” her for about 10
minutes. That felt “weird” to R.M. and she did not know what to do. R.M. could not
recall anyone else being in the house at the time.
       Many similar incidents occurred thereafter. When R.M. was still six or seven
years old, defendant sat close to her on the living room couch as she watched television.
He placed a blanket over both of them, moved R.M. closer to him, put his hand under her
clothing, and “started fingering [her].” R.M. believed they were alone in the house when
this incident occurred.
       On another occasion between October 2004 and October 2009,3 R.M. was
watching television in the living room with Cathy, Amanda, and defendant. Cathy and
Amanda sat on the couch by the door. R.M. and defendant sat on the couch across the
room, with a blanket covering them. Under the blanket, defendant inserted his fingers
into R.M.’s vagina. R.M. did not say anything to Cathy or Amanda. R.M. understood
defendant’s actions were “bad” but thought the molestation was “[her] fault too.” R.M.
testified, “I didn’t want to hurt anybody by saying anything. [¶] So I just didn’t want
anything bad to happen. I knew if I said something to [Cathy], she would get mad or
something. I didn’t want that to happen. So I just kept quiet.”
       When R.M. was “older like 10” years old, Cathy left her alone in defendant’s care
while Cathy ran an errand. R.M. testified, “I was on his couch and [defendant] came over
to me and he laid me down and he started fingering me again but he was holding me
down that time.” R.M. “kind of blacked out” and when she woke up defendant was gone.
R.M. “guess[ed]” she “blacked out” during “half” of the occasions defendant sexually
assaulted her.
       In response to being asked to give an estimate of the number of times defendant
sexually abused her while Cathy was absent from the home, R.M. said: “[f]ifteen,

3
        R.M. testified defendant sexually abused her beginning when was 6 or 7 years old
until she was about 10 years old.

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twenty; I don’t know.” She explained it was “often;” “a few times a week.” Defendant’s
abuse of R.M. continued until she and her family moved to Bloomington.4
       R.M. eventually told her mother and father about defendant sexually abusing her,
and shortly thereafter the police “got involved.” During separate interviews R.M. had
with a Los Angeles County Sheriff’s Department deputy and a detective, she said she was
“touched” by defendant “about 12 to 15 times.”


              2.     Defendant’s Evidence
       Defendant and five of his family members testified on his behalf. Defendant’s
five family member witnesses were Cathy (his wife), Amanda (his daughter), Ruben (his
brother-in-law), Deanna (his niece by marriage), and Melissa (his niece). One or more of
them testified as follows.
       It was Cathy’s responsibility to look after R.M. and her siblings, although Amanda
helped. Defendant never cared for the children, and was never left alone with R.M.
Defendant usually worked nights, and slept during the day. Defendant testified he never
watched television alone with R.M., never sat under a blanket with her, and never
touched R.M. in a sexual way.
       Several of the witnesses never observed R.M. appearing nervous, anxious, or
uncomfortable around defendant, or attempting to avoid him. Amanda, Cathy, and
Deanna opined defendant was not sexually attracted to young girls, and Cathy opined
defendant was an honest and truthful person.


       B.     Procedural Background
       The Los Angeles County District Attorney filed an information charging
defendant with of continuous sexual abuse of a child in violation of section 288.5,

4
        At the preliminary hearing, R.M. testified defendant sexually touched her two to
three times a week from the time she was six or seven years old until she was ten or
eleven years old. At trial, R.M. acknowledged on cross-examination this would equate to
defendant having touched her hundreds of times. She explained, “I can’t give you an
exact number. I just know it was a lot.”

                                            4
subdivision (a) (count 1), and committing a lewd or lascivious acts involving a child in
violation of section 288, subdivision (c)(1) (count 2). With respect to count 1, it was
alleged that defendant engaged in substantial sexual conduct with the minor in violation
of section 1203.066, subdivision (a)(8).
       Following trial, the jury found defendant guilty of count 1, and found the special
allegation was true. The jury acquitted defendant of count 2. The trial court sentenced
defendant to state prison for the mid-term of 12 years.


                                       DISCUSSION


       A.     Standard of Review
       “‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’
[Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]”
(People v. Edwards (2013) 57 Cal.4th 658, 715.) The testimony of one witness is
sufficient to prove any fact. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149,
1181 [“unless the testimony is physically impossible or inherently improbable, testimony
of a single witness is sufficient to support a conviction”].) “A reversal for insufficient
evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.)




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       B.     Analysis
       Section 288.5, subdivision (a) states: “Any person who either resides in the same
home 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, 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 . . . .” Consistent with the requirements of section 288.5, subdivision (a),
the trial court instructed the jury with a modified version of CALCRIM No. 1120, which
included as elements that the jury must find defendant engaged in three or more acts of
“substantial sexual conduct” with the child, and “[t]hree or more months passed between
the first and last acts.” The jury instruction also stated, “Substantial sexual conduct
means penetration of the child’s vagina by any foreign object. A foreign object includes
a finger, or any part of the body except a sexual organ.”
       When a defendant is charged with a violation of section 288.5, subdivision (a),
“the prosecution need not prove the exact dates of the predicate sexual offenses in order
to satisfy the three-month element. Rather, it must adduce sufficient evidence to support
a reasonable inference that at least three months elapsed between the first and last sexual
acts. Generic testimony is certainly capable of satisfying that requirement . . . . [D]espite
the general acceptance of such generic testimony, ‘the victim must be able to describe the
general time period in which these acts occurred (e.g., “the summer before my fourth
grade,” or “during each Sunday morning after he came to live with us”), to assure the acts
were committed within the applicable limitation period.’ [Citations.] That is, while
generic testimony may suffice, it cannot be so vague that the trier of fact can only
speculate as to whether the statutory elements have been satisfied.” (People v. Mejia
(2007) 155 Cal.App.4th 86, 97 (Mejia).)
       Here, R.M.’s testimony was not so vague that the jury could only speculate as to
whether the elements of section 288.5, subdivision (a), were satisfied. R.M. testified,

                                              6
while she was six or seven years old, i.e. between October 2004 and October 2006, there
were two separate occasions when defendant inserted his fingers into her vagina. Both
incidents were described with specificity, e.g., the first involved defendant gesturing to
R.M. to come to him while they watched television and the second was when defendant
sat next to her on the couch before placing a blanket on her and molesting her. The third
incident R.M. identified was without reference to a specified date (she indicated it was
between the time she was six or seven years old and the time she was ten years old) but
the circumstances were very similar to those of the second incident—defendant digitally
penetrated R.M. while he sat with her under a blanket. Defendant abused R.M. a fourth
time when R.M. was 10 years old, i.e., between October 2008 and October 2009—again
R.M. described the incident with some precision, indicating it occurred while Cathy was
running an errand and it involved defendant holding her down while he inserted his
fingers inside her vagina.
       R.M. testified about four discrete acts of digital penetration with specificity. A
rational trier of fact could have concluded the acts of digital penetration commenced, at
the latest, in October 2006 and continued, at least until October 2008. This constituted
sufficient evidence to support the judgment. (See People v. Jones (1990) 51 Cal.3d 294,
315 [testimony of a child victim sufficient to prove a violation of section 288, subdivision
(a) if: (1) the acts described are sufficiently specific; (2) the number of acts are
committed with sufficient certainty; and (3) the general time period of the acts complies
with statutory requirement].)
       Citing U.S. v. Kenyon (8th Cir. 2007) 481 F.3d 1054 (Kenyon), defendant contends
R.M.’s testimony was inherently improbable, and therefore defendant’s conviction
violated his federal constitutional right to due process.5 Specifically, defendant contends
R.M.’s testimony was not believable because (1) she could not explain the inconsistency
between her prior preliminary hearing testimony that she was molested two or three times

5
        Kenyon held, in part, the victim’s testimony that she was molested “maybe twice”
was sufficient to establish only one, rather than two, occasions of molestation. (Kenyon,
supra, 481 F.3d at p. 1068.)

                                              7
per week, and her statements to the police that she was molested a total of about twelve to
fifteen times; (2) she “blacked out” about half of the occasions defendant molested her;
(3) Cathy and Amanda were only a few feet away while defendant inserted his fingers in
R.M.’s vagina, apparently suggesting the circumstances were too risky for defendant to
molest R.M.; and (4) there was evidence defendant’s work schedule did not give him
time to sexually molest R.M.
       We are not bound by the decisions of lower federal courts. (People v. Avena
(1996) 13 Cal.4th 394, 431.) In any event, defendant’s examples of R.M.’s testimony do
not establish R.M.’s accounts of digital penetration were inherently improbable or
impossible to believe. They merely presented the jury with a credibility determination to
be made, one we see no basis to disturb on appeal. (People v. Williams (2015) 61 Cal.4th
1244, 1262 [“We defer to the trial court’s credibility assessments ‘based, as they are, on
firsthand observations unavailable to us on appeal’”]; People v. Richardson (2008) 43
Cal.4th 959, 1030.)




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                                    DISPOSITION


      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               KUMAR, J.



We concur:



             TURNER, P. J.



             BAKER, J.





       Judge of the Superior Court of the County of Los Angeles, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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