Filed 7/8/13 P. v. Guajardo 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F063335
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF238624)
                   v.

JOHN JOSEPH GUAJARDO,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Gerald F.
Sevier, Judge.
         Robert L. S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L.
Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         John Joseph Guajardo was convicted of molesting his two granddaughters many
times over a period of several years and received a determinate sentence of 19 years 8
months plus an indeterminate sentence of 90 years to life. He challenges his conviction
on count 11, exhibiting harmful matter to a minor with intent to seduce (Pen. Code,
§ 288.2, subd. (a)1). He argues that the evidence was insufficient to support a finding of
an intent to seduce and that the court should have instructed the jury on a lesser-included
offense. We reject these arguments.
       Guajardo and the People agree that an erroneously imposed restitution fine should
be stricken and that the abstract of judgment must be amended to correct a clerical error.
We order the necessary corrections and affirm the judgment.
                     FACTUAL AND PROCEDURAL HISTORIES
       Guajardo has two granddaughters, A.G. and K.G. The district attorney filed an
information charging Guajardo with 14 counts of sex offenses against them. Counts 1
through 10 alleged that Guajardo committed lewd acts against A.G., a child under 14.
(§ 288, subd. (a).) Count 11 alleged that Guajardo showed A.G. a video depicting sexual
conduct with intent to arouse the sexual desires of himself and A.G. and with intent to
seduce A.G. (§ 288.2, subd. (a).) Count 12 alleged that Guajardo communicated with
A.G. with intent to commit a sex offense. (§ 288.3, subd. (a).) Counts 13 and 14 alleged
that Guajardo committed lewd acts against K.G., a child under 14. (§ 288, subd. (a).)
Counts 1 through 10, 13, and 14 included the special allegation that Guajardo committed
the offenses against more than one victim. (§ 667.61, subds. (b), (e)(4).)
       A.G. was 15 years old at the time of trial. The evidence at trial showed that
Guajardo began touching her sexually when she was five or six years old. When she was
10, Guajardo began giving her gifts and demanding sex in return. In her testimony, A.G.
described acts including vaginal intercourse, her masturbation of him, his placing his
mouth on her breasts and vagina, his touching of her breasts and vagina, and open-
mouthed kissing.



       1Subsequent   statutory references are to the Penal Code.



                                             2.
       A.G. testified that Guajardo showed her pornographic videos at his house more
than one time. She remembered two films. Scenes she recalled involved women having
sex with each other, a man and woman having sex in a chair, and “threesomes.” A.G. did
not remember how old she was when Guajardo first showed her the videos. Police found
two videotapes, titled “Sticky Situation” and “Butts Motel 6,” in Guajardo‟s bedroom.
       The sexual activity between Guajardo and A.G., and the exchanging of sex for
gifts, took place many times and continued until A.G. was 14. It stopped when A.G.‟s
mother (Guajardo‟s daughter) contacted the authorities after finding sexually explicit text
messages from Guajardo to A.G. on Guajardo‟s cell phone.
       The evidence at trial also showed that Guajardo engaged in sexual touching of
K.G., who was seven at the time of trial. K.G. told a forensic interviewer that Guajardo
touched her “bootie” and “chi-chis” with his hand when she was five. At trial she
testified that he touched her private area.
       The jury found Guajardo guilty on all counts. It found the multiple-victim
allegations true on counts 1 through 4, 13 and 14. It found those allegations not true on
counts 5 through 10.2
       The court sentenced Guajardo to six consecutive indeterminate terms of 15 years
to life—a total of 90 years to life—for counts 1, 2, 3, 4, 13, and 14. These were the
section 288, subdivision (a), counts with the multiple-victim special circumstances, for
which a term of 15 years to life was applicable under section 667.61, subdivision (b).

       2The  jury apparently found some of the multiple-victim allegations not true
because K.G. did not claim Guajardo committed all the same kinds of acts against her as
he committed against A.G. The verdict forms specified the type of lewd act upon which
each count charged under section 288, subdivision (a), was based. For instance, the form
for count 1 described Guajardo‟s act against A.G. as “touching breasts at defendant‟s
home,” and the form for count 5 described the act against A.G. as “penis to vagina.” The
jury found that Guajardo committed the acts “touching breasts” (or “breast area”) and
“touching vaginal area” against both A.G. and K.G., and found the multiple-victim
allegations true for those acts only.



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The court also imposed a determine term of 19 years 8 months, calculated as follows:
eight years (the upper term) for count 5; two years (one-third of the middle term) for each
of counts 6 through 10; eight months (one-third of the middle term) for count 11; and one
year (one-third of the middle term) for count 12.
                                       DISCUSSION
I.     Sufficiency of evidence for count 11
       Guajardo argues that the evidence was not sufficient to support the conviction on
count 11, exhibiting harmful material to a minor with intent to seduce. (§ 288.2,
subd. (a).) Specifically, he maintains that the evidence did not show that he had an intent
to seduce A.G. when he showed her the pornographic videos at his house.
       The standard of review for a challenge to the sufficiency of the evidence
supporting a conviction is well-established:

               “„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.]‟ [Citation.]” (People v. D’Arcy (2010) 48
       Cal.4th 257, 293.)
       Section 288.2, subdivision (a)(1), provides:

               “Every person who, with knowledge that a person is a minor, or who
       fails to exercise reasonable care in ascertaining the true age of a minor,
       knowingly distributes, sends, causes to be sent, exhibits, or offers to
       distribute or exhibit by any means, including, but not limited to, live or
       recorded telephone messages, any harmful matter, as defined in
       Section 313, to a minor with the intent of arousing, appealing to, or
       gratifying the lust or passions or sexual desires of that person or of a minor,
       and with the intent or for the purpose of seducing a minor, is guilty of a


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       public offense and shall be punished by imprisonment in the state prison or
       in a county jail.”
       It has been held that “seducing” in this statute means enticing the minor to engage
in a sex act:

       “[T]he word „seducing‟ was not intended to have the vague meaning of
       „lead[ing] astray‟ [citation] but to have the precise meaning of „carry[ing]
       out the physical seduction of: entic[ing] to sexual intercourse.‟ [Citation.]
       And, in this context, „sexual intercourse‟ clearly refers to „intercourse
       involving genital contact between individuals‟ rather than „heterosexual
       intercourse involving penetration of the vagina by the penis.‟ [Citation.]
       Thus, the „seducing‟ intent element of the offense requires that the
       perpetrator intend to entice the minor to engage in a sexual act involving
       physical contact between the perpetrator and the minor.” (People v. Jensen
       (2003) 114 Cal.App.4th 224, 239-240.)
       Guajardo contends that A.G. testified only that he showed her the pornographic
videos. There was no testimony indicating that he intended to seduce her at the times
when he showed them, or that any sexual acts took place between them at those times.
       “Intent is rarely susceptible of direct proof and must usually be inferred from a
consideration of all the facts and circumstances shown by the evidence.” (People v. Pitts
(1990) 223 Cal.App.3d 606, 888.) Here, the evidence showed that Guajardo maintained a
secret, sexually exploitative relationship with A.G. for years. The jury could readily and
reasonably infer that he showed her the pornographic videos as part of that relationship
and with the intent to induce her to have sex with him. In light of all the circumstances,
there are scant grounds for believing he had any other intent. We conclude, therefore,
that the evidence was sufficient to support the conviction.
II.    Lesser-included offense
       Guajardo argues that the court was required to instruct the jury sua sponte on
section 313.1, subdivision (a), as a lesser offense necessarily included in count 11.
Section 313.1, subdivision (a), provides:

               “Every person who, with knowledge that a person is a minor, or who
       fails to exercise reasonable care in ascertaining the true age of a minor,

                                             5.
       knowingly sells, rents, distributes, sends, causes to be sent, exhibits. or
       offers to distribute or exhibit by any means, including, but not limited to,
       live or recorded telephone messages, any harmful matter to the minor shall
       be punished as specified in Section 313.4.”
       This statute is similar to section 288.2, subdivision (a)(1), except that it does not
require a showing of intent to appeal to sexual desires or to seduce. Guajardo argues that
an instruction on this offense should have been given because the jury could reasonably
have found that he exhibited the pornographic videos to A.G. without an intent to seduce
her.
       A trial court must give an instruction on a lesser-included offense sua sponte if the
evidence warrants the instruction. (People v. Cook (2006) 39 Cal.4th 566, 596.) The
evidence warrants the instruction if there is substantial evidence which, if accepted,
would absolve the defendant of the greater offense, but not the lesser. (People v. Waidla
(2000) 22 Cal.4th 690, 733.) We review de novo the court‟s instructions on lesser-
included offenses. (People v. Cook, supra, at p. 596.)
       As we have said, in light of all the circumstances, there would be little basis for
imputing to Guajardo any intent in showing the videos to A.G. other than the intent to
induce her to have sex with him. We conclude that there was no substantial evidence
which, if accepted, would have absolved Guajardo of the greater offense, but not the
lesser. The instruction therefore was not required.
       Even if there had been any error, it would have been harmless beyond a reasonable
doubt. Given that the jury found that Guajardo committed every sex act against A.G. with
which he was charged, there is virtually no likelihood that it would have found that,
although he exhibited pornographic videos to her at his house, he did so without sexual
intentions toward her.
III.   Restitution fine
       The trial court imposed a $1,000 restitution fine under section 294, subdivision (b).
This statute provides a fine for offenders convicted of violating section 261, 264.1, 285,


                                              6.
286, 288a, or 289. Guajardo was not convicted of any of those offenses. Guajardo and
the People agree that the fine must be stricken, as do we. We will order the sentence
corrected to omit that fine.
IV.    Clerical error on sentence for count 11
       At the sentencing hearing, the court orally imposed a term of eight months, equal
to one-third of the middle term, for count 11. (§ 288.2, subd. (a).) The abstract of
judgment, however, shows a sentence of two years for count 11. The parties agree,
correctly, that the court‟s oral pronouncement of the sentence controls. (People v. Mesa
(1975) 14 Cal.3d 466, 471.) We order the court to correct the abstract of judgment.
                                      DISPOSITION
       The $1,000 restitution fine imposed for count 11 is stricken and the trial court shall
correct the abstract of judgment to remove that fine. The trial court is also ordered to
correct the abstract of judgment to show that the sentence for count 11 is eight months.
The trial court shall forward the corrected abstract to the appropriate correctional
authorities. The judgment is affirmed in all other respects.


                                                                 _____________________
                                                                     Wiseman, Acting P.J.

WE CONCUR:


 _____________________
 Levy, J.


 _____________________
 Peña, J.




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