Filed 12/17/13 P. v. Flores CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047137

         v.                                                            (Super. Ct. No. 09WF1803)

DANIEL VLAS FLORES,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
Lance Jensen, Judge. Affirmed.
                   Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
                                      INTRODUCTION
              Defendant Daniel Vlas Flores was convicted of kidnapping and sexually
abusing a seven-year-old girl who suffers from developmental delays. Defendant was
sentenced to a total term of 65 years to life, with the possibility of parole. He raises two
arguments on appeal; we reject both, and therefore affirm the judgment.
              First, defendant contends there was insufficient evidence to support his
conviction for digital penetration. To the contrary, substantial evidence supports the
conviction.
              Second, defendant argues the trial court erred in imposing his sentences
consecutively. We conclude the imposition of consecutive sentences was amply
supported by the record and by the court’s explanation of reasons.


                                   STATEMENT OF FACTS
              In August 2009, M.L. was seven years old. She had developmental
disabilities and language problems that made it difficult for her to communicate. One
afternoon, M.L. was playing with A.B. (who was M.L.’s friend), A.B.’s brother, and
A.B.’s male cousin in the backyard of their apartment complex. A.B., who was eight
years old at that time, is defendant’s niece. Defendant, who also lived in the apartment
complex, entered the yard and asked the children for help moving some shelves. A.B.
told defendant to take one of the boys with him, because A.B.’s mother had told her
“never play with [her] uncle when he’s drunk.” But defendant insisted that M.L. help
him because she was “fatter.”
              Defendant grabbed M.L. by the wrist and took her out of the yard, despite
her attempts to pull away. After continuing to play in the yard for a while, A.B. decided
to see what defendant and M.L. were doing. She and the boys went to defendant’s
apartment; the living room was empty, and the bedroom door was locked. The children

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went back outside, and A.B.’s brother and cousin used a stick to open a window in
defendant’s apartment.
              After entering the room, A.B. saw M.L. sitting in the bedroom closet with
her pants down. Defendant was standing near her, fully dressed. M.L. put on her pants,
and ran crying out of defendant’s apartment and to her own apartment, where she locked
herself in a bathroom. About five minutes later, after being encouraged by A.B., A.B.’s
older sister, and an adult neighbor, M.L. came out of the bathroom and ran to her
bedroom, still crying, where she hid under the bed.
              Paramedics were called, and a female ambulance driver found M.L. on a
couch, with her face buried in the cushions, rocking aggressively back and forth. M.L.
then hid under a pile of clothes in the closet, crying and clutching her mother’s picture.
Eventually, the ambulance driver and an adult neighbor were able to take off M.L.’s
pants to look for any sign of trauma or injury. M.L. was crying the entire time. The
ambulance driver saw blood and a “white creamy substance” on M.L.’s underwear, and
blood in her vaginal area. The police were called and arrested defendant.
              During a sexual assault examination, the medical examiner discovered
redness and lacerations in M.L.’s genital and anal regions. M.L. was bleeding in the
genital and anal areas. The examiner opined that the cause of M.L.’s injuries was “blunt
penetrating force to the genital and anal area[s].” The examiner also opined that M.L.’s
injuries would be consistent with penetration by a penis or a finger. Defendant’s semen
was found in M.L.’s genital and anal regions. M.L.’s blood was found on defendant’s
hand. There was no blood on any part of M.L.’s body, other than her genital and anal
areas.
              Defendant was charged with kidnapping to commit rape (Pen. Code, § 209,
subd. (b)(1) [count 1]), sexual intercourse with a child 10 years old or younger (id.,
§ 288.7, subd. (a) [count 2]), sexual penetration of a child 10 years old or younger (id.,
§ 288.7, subd. (b) [count 3]), and sodomy with a child 10 years old or younger (id.,

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§ 288.7, subd. (a) [count 4]). The jury convicted defendant on all counts. The trial court
sentenced defendant to a total term of 65 years to life, with the possibility of parole. The
trial court imposed indeterminate sentences of 25 years to life, 15 years to life, and 25
years to life on counts 2, 3, and 4, respectively. The court also imposed a consecutive
term of seven years to life on count 1, but stayed execution of that sentence pursuant to
Penal Code section 654. Defendant timely appealed.


                                        DISCUSSION
                                             I.
                              SUFFICIENCY OF THE EVIDENCE
              Defendant argues there was insufficient evidence of digital penetration to
support his conviction on count 3.1 “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
presume in support of the judgment the existence of every fact the trier of fact reasonably
could infer from the evidence. [Citation.] If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding. [Citation.]
A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.
[Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
              Penal Code section 288.7, subdivision (b), provides: “Any person 18 years
of age or older who engages in . . . sexual penetration, as defined in Section 289, with a

       1
          Defendant also contends, without any analysis, argument, or evidentiary
citation, that his convictions under counts 1 and 2 were also unsupported by legally
adequate evidence, and must be reversed. We reject defendant’s unsupported argument.

                                             4
child who is 10 years of age or younger is guilty of a felony and shall be punished by
imprisonment in the state prison for a term of 15 years to life.” Penal Code section 289,
subdivision (k)(1) provides: “‘Sexual penetration’ is the act of causing the penetration,
however slight, of the genital or anal opening of any person . . . for the purpose of sexual
arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or
by any unknown object.” Contact with the labia majora is sufficient to constitute
penetration under section 288.7, subdivision (b). (People v. Quintana (2001) 89
Cal.App.4th 1362, 1371.)
              Substantial evidence supported the jury’s finding that defendant violated
Penal Code section 288.7, subdivision (b), by digitally penetrating M.L. M.L.’s blood
was found on defendant’s hand. M.L. was bleeding only in her genital and anal areas, not
anywhere else on her body. The medical examiner testified that M.L.’s injuries could
have been caused by penetration by defendant’s finger. Given the extent of M.L.’s
injuries, which continued to bleed for hours after the attack, and which were visible and
obvious, it would be reasonable for the jury to have inferred that penetration, by finger or
penis, occurred more than once. Based on that evidence, the jury could properly infer
that defendant digitally penetrated M.L., either vaginally or anally.2
              Defendant suggests that M.L.’s blood could have been transferred to his
hand when he went to the bathroom. No evidence exists in the record that defendant
went to the bathroom at any time between assaulting M.L. and his arrest a short time
later. (See People v. Story (2009) 45 Cal.4th 1282, 1299 [“The Court of Appeal erred in
focusing on evidence that did not exist rather than on the evidence that did exist”].)




       2
        In his opening brief on appeal, defendant claims the prosecutor argued only that
defendant digitally penetrated M.L.’s vagina. Defendant’s contention is not supported by
defendant’s citation to the reporter’s transcript of closing argument at trial.

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              The authorities on which defendant relies are inapposite. In People v.
Moore (2011) 51 Cal.4th 386, 406, the Supreme Court held that the trial court abuses its
discretion by admitting an expert’s testimony that “rests on an assumption without any
support in the trial evidence.” In that case, the expert criminalist was permitted to testify
that if it was assumed that a bloodstain in one room was deposited by a human being, that
person would have been lying down or very close to the floor at the time the blood was
deposited. (Id. at p. 405.) Because the expert could not determine how that bloodstain
had been deposited, and there was no evidence it had been deposited by a person rather
than an object, the expert’s testimony should have been excluded. (Ibid.) The court also
determined the defendant had not been prejudiced by the admission of the evidence;
although the prosecution argued the bloodstain showed the defendant had started the
attack on the victim in one room and then continued the attack in another, the actual
evidence of a brutal, extended attack on a vulnerable victim made any appeal to the
passion of the jury by the bloodstain evidence insignificant. (Id. at pp. 406-407.)
People v. Moore does not address the issue of what evidence is sufficient to support a
conviction under Penal Code section 288.7, subdivision (b).
              In People v. Pearson (2012) 53 Cal.4th 306, 319, the Supreme Court
reversed a finding that the defendant had personally used a deadly weapon in the
commission of the sex crimes because of a lack of any evidence: “No witness testified
defendant used the stake, no out-of-court statements to that effect were introduced, and
no physical evidence indicated he had used it. The evidence leaves it entirely possible
defendant used the stake in attacking [the victim], but does not support a finding of such
use beyond a reasonable doubt.” In this case, by contrast, there is sufficient actual
evidence that defendant digitally penetrated M.L., and reversal is unwarranted.




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                                              II.
                                    CONSECUTIVE TERMS
              Defendant argues the trial court erred by imposing consecutive sentences.3
We review the trial court’s sentencing decision for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.)4
              In this case, the trial court stated on the record that it was imposing
consecutive sentences based on the following sentencing factors: California Rules of
Court, rule 4.421(a)(1) (“The crime involved great violence, great bodily harm, threat of
great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or
callousness”); id., rule 4.421(a)(3) (“The victim was particularly vulnerable”); id.,
rule 4.421(a)(8) (“The manner in which the crime was carried out indicates planning,
sophistication, or professionalism”); and Penal Code section 1170.85, subdivision (b)
(“Upon conviction of any felony it shall be considered a circumstance in
aggravation . . . if the victim of an offense is particularly vulnerable, or unable to defend
himself or herself, due to age or significant disability”).



       3
          Defendant failed to raise this issue in the trial court, and we could refuse to
reach the merits because they have been forfeited. (People v. Scott (1994) 9 Cal.4th 331,
353, 356.) We will nevertheless address the issue on the merits to avoid the inevitable
claim of ineffective assistance of counsel.
        4
          The opening brief on appeal includes the following statement: “The judge
prefaced his statement of sentencing reasons by characterizing appellant’s crimes as
‘atrocities’ and likened appellant’s conduct to acts which occurred during World War II.”
What the trial court actually said was quite different: “The court notes that as to
[California Rules of Court, rule] 4.421(a)(1), your acts, as described by the evidence this
court heard and as described by [the deputy district attorney] and described by the
probation report, amounted, as the probation officer indicated, to . . . crimes that were not
only heinous, vicious, cruel and callous, but arose to such a level that they were
accurately described by the probation officer as atrocities. [¶] You probably don’t know
what an atrocity is. I’ve read enough, I’ve seen enough, my father was in World War II,
society knows what an atrocity is. [¶] I can’t think of anything worse that you can do to a
child than what you did to this young lady.”

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              Defendant complains that because the factors in aggravation relied on by
the trial court to support the imposition of consecutive terms were all related to M.L.’s
developmental delays, the statement of reasons was defective. A single aggravating
factor may be used to justify the imposition of consecutive sentences. (People v. Osband
(1996) 13 Cal.4th 622, 728-729; People v. Leon (2010) 181 Cal.App.4th 452, 468-469.)
Defendant “acknowledges the correctness of the trial court’s finding that [M.L.] met the
standard of a vulnerable victim within the meaning of [California Rules of Court,] rule
4.421(a)(3).” The testimony at trial supported this finding.
              Further, it is not correct that the court’s imposition of consecutive sentences
was based solely on a single factor. In addition to M.L.’s developmental delays, the court
relied on the heinous, vicious, cruel, and callous nature of the crime, in which defendant
raped, sodomized, and digitally penetrated a child under 10 years of age, causing physical
and emotional trauma and visible injuries that are normally not found in cases such as
this. (Cal. Rules of Court, rule 4.421(a)(1).) Further, the court relied on defendant’s
planning, which involved concocting a ruse and separating M.L. from her playmates,
based on her being “fatter” than the other children. (Id., rule 4.421(a)(8).)
              Defendant also contends that the trial court improperly failed to
acknowledge the mitigating factor of defendant’s lack of a criminal history.5 Defendant
acknowledges, as he must, that the trial court read and considered the probation report,
which addressed this mitigating factor. The court did not abuse its discretion in rejecting

       5
         Defendant also references his limited cognitive functioning, history of being
sexually abused, and abandonment by his parents at a young age. Defendant’s alleged
sexual abuse and abandonment were mentioned by defendant during his probation
interview, but beyond his statement to the probation officer, there is no evidence to
support them. Defendant’s alleged lack of cognitive functioning is based only on the
probation officer’s observation of defendant’s responses to questions asked during the
interview, not on any testing or expert evaluation. The probation report does not identify
these as mitigating factors. Given the nature of the crimes and the exceptional
vulnerability of the victim, it is not reasonably probable the trial court would have
imposed a different sentence even if it had explicitly considered these factors.

                                              8
this mitigating factor, however. The probation report makes clear that defendant had “no
prior record of committing crimes in this country.” (Italics added.) Defendant had only
been in the United States for two years before molesting M.L. There was no record of
whether defendant had any criminal history in Mexico during the first 26 years of his life,
so the lack of a criminal record in the United States was not as telling as it might
otherwise have been.
              Defendant failed to establish any abuse of discretion by the trial court in
imposing consecutive sentences, based on the record before it.


                                        DISPOSITION
              The judgment is affirmed.




                                                  FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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