Filed 3/1/16 P. v Rivas CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA

THE PEOPLE,                                                         D069238

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FVA1300671)

JOSE ROBERTO RIVAS, SR.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Shahla S. Sabet, Judge. Judgment affirmed; remanded for resentencing.


         Nancy Olsen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and

Respondent.

         A jury convicted Jose Roberto Rivas, Sr. of 12 counts of committing lewd and

lascivious acts on a child under the age of 14 years and found true multiple victim

allegations as to each count. Rivas's victims were his two granddaughters, Jane and Mary
Doe, and a family friend's daughter, Abby Doe. Rivas appeals, contending: (1) the

evidence did not support one of the six counts involving Jane; (2) the trial court erred by

imposing separate life sentences on three counts involving Jane that occurred on one

occasion and a life sentence on the count he claims was not supported by substantial

evidence; and (3) his sentence of 180 years to life constitutes cruel and unusual

punishment. The People concede and we agree that the trial court was authorized to

impose only one life term involving the three offenses Rivas committed against Jane on

one occasion. In all other respects, we affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

Jane Doe

       Jane's Testimony

       In 2003, Rivas told six-year-old Jane, whose clothes were off, to get onto his bed.

Rivas proceeded to kiss Jane on the neck and touched her breasts. He pulled his pants

down, slouched over her and rubbed his penis on her vagina.

       On another day, Rivas put the back of a dining chair against the door in the living

room that opened to the outside of the house. Rivas placed Jane on the chair standing up

and facing the door. He then put his fingers in Jane's vagina. Jane became scared,

screamed and told Rivas to stop.

       On a third occasion, while Jane and her siblings were on the floor watching

television, Rivas told Jane to sit next to him on the couch. Rivas instructed Jane to put

her hand down his pants and grab his penis, which she did. Jane quickly pulled her hand

back out.


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       When she was in the second grade, Jane told her siblings what Rivas had done to

her. Jane did not tell her mother or grandmother because she was scared and thought she

would get in trouble.

       Officer Randall Peterson's Testimony

       Officer Peterson testified that when Jane was 15 years old, he spoke to her about

Rivas. Officer Peterson described how Jane reported multiple instances of sexual abuse

by her grandfather. When asked to describe the incidents, Officer Peterson stated:

"There's multiple instances. So it is hard to describe. One instance was he would

digitally penetrated [sic.]. The finger was inserted into her vagina. Another instance was

that the defendant's penis was rubbed against her vagina, but not inserted. Another

instance was she was kissed on the neck. And then another was that he used his hand

underneath her clothes to touch her vagina and breasts."

Mary Doe

       In 2004 or 2005, when Mary was five or six years old, Rivas took her to his

bedroom. He laid Mary down on her back on the bed, took off her underwear, and spread

open her legs. Rivas then proceeded to insert his penis in Mary's vagina and kissed her

on the mouth. Rivas stopped when he heard his wife return from the grocery store.

Similar incidents occurred at least two more times until Mary was approximately eight

years old.

Abby Doe

       When Abby was 10 years old, she went to Rivas's home because her mother was

friends with Rivas's daughter. While Abby was at Rivas's house, Rivas pulled up her


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shirt, put his hand on her chest, and kissed her stomach. Rivas also rubbed Abby's vagina

over her clothing. After hearing about what had occurred, Abby's mother called the

police.

                                         DISCUSSION

                                 I. Sufficiency of the Evidence

A. Additional Background

          Counts five through ten against Rivas pertained to Jane. While the operative

second amended information identified the victim for each count, it did not specify the

particular conduct connected to each count. During deliberations, the jury asked the

court to "list . . . what the acts are that are connected with each of the 6 counts against

Jane Doe." Over defense counsel's objection, the court provided the following response:

"[t]ouching her naked breast; kissing on her neck; rubbing his penis on her vagina;

fondling her vagina; digitally penetrating her vagina; having her touch his penis."

B. Analysis

          The parties do not dispute that Jane only testified as to conduct supporting five

counts of lewd acts committed by Rivas against her. Further, they agree that the sixth

count was based solely on Officer Peterson's testimony that "[Rivas] used his hand

underneath [Jane's] clothes to touch her vagina and breasts." Rivas contends Officer

Peterson's testimony did not support a separate crime against Jane because it could not be

determined from the officer's testimony whether a separate act of lewd conduct, apart

from the acts described by Jane at trial, had occurred. He also argues the trial court

bolstered the evidence by listing six acts for the jury and characterizing one of those acts


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as "fondling" Jane's vagina because that term was more suggestive than the term

"touching" used by Officer Peterson. We reject Rivas's arguments.

       In considering a challenge to the sufficiency of the evidence, "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. . . . We presume every fact in support of the judgment the trier of fact could have

reasonably deduced from the evidence. . . . 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. . . . 'A

reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' "

(People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.) We simply consider

whether " ' "any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." ' " (People v. Rich (1988) 45 Cal.3d 1036, 1081.)

       Here, applying the proper standard of review, there was substantial evidence to

support Rivas's conviction for six counts of committing lewd and lascivious acts on Jane.

Jane clearly testified regarding five acts that occurred during three separate incidents.

Two of those three incidents included conduct involving Jane's vagina. In the first

incident, Rivas rubbed his penis on Jane's vagina while her clothes were off. In the

second incident, Rivas put his fingers inside Jane's vagina while she was standing on a

chair. Officer Peterson also described these two acts. In addition, Officer Peterson

testified that Jane told him of an incident in which Rivas touched her vagina underneath


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her clothes. Contrary to Rivas's argument, this evidence supported a separate count of

lewd conduct on a child. The jury could reasonably conclude that the act Officer

Peterson described of Rivas touching Jane's vagina underneath her clothes was separate

and distinct from the acts that Jane testified to because Jane's testimony differed in that

she described an incident in which Rivas rubbed his penis on her vagina while her clothes

were off, and another in which he digitally penetrated her. Reversal of the judgment is

not warranted even if we might have made contrary findings or drawn different

inferences, as it is the trier of fact, not the appellate court, that must be convinced beyond

a reasonable doubt. (People v. Perez (1992) 2 Cal.4th 1117, 1126.)

       We also reject Rivas's argument that the trial court endorsed the prosecution's

interpretation of the evidence by listing the six acts involving Jane in response to the

jury's question. Based on our review of the record, there is no indication that the trial

court misled the jury. Consistent with the second amended information, the trial court

instructed the jury that Rivas was charged with six counts of committing a lewd or

lascivious act on Jane. In response to a jury question, the trial court provided the jury

with a list of the particular acts connected to each count. The list the trial court provided

to the jury corresponded to the evidence at trial. Further, the trial court merely listed the

acts without any suggestion of whether the evidence supported each count. This was

similar to if the acts had been identified with each count in the information. Accordingly,

Rivas has not shown error in the trial court's response to the jury's question.

       Lastly, Rivas's argument that the trial court erred by listing one of the six acts as

"fondling" rather than "touching" Jane's vagina also lacks merit. As the People point out,


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Rivas forfeited the claimed error by failing to object to the use of the term "fondling" in

the trial court. (See People v. Ross (2007) 155 Cal.App.4th 1033, 1048.) Even if we

overlook defense counsel's failure to object or request a different response, Rivas's claim

fails. There is no significant difference between "fondling" and "touching." "Fondle"

means "to touch or handle (something) in a gentle way" or "to touch (someone) in a

sexual way." (Merriam-Webster Online Dict. (2016) <http://www.merriam-

webster.com/dictionary/fondle> [as of Feb. 29, 2016].) "Touch" means "to put your

hand, fingers, etc., on someone or something." (Merriam-Webster Online Dict. (2016)

< http://www.merriam-webster.com/dictionary/touch> [as of Feb. 29, 2016].) In the

context of this case, the trial court's use of "fondle" was no more suggestive than Officer

Peterson's use of "touch" as the two terms mean essentially the same thing.

                               II. Alleged Sentencing Error

       For the six counts of lewd acts perpetrated on Jane, the trial court sentenced Rivas

to six consecutive terms of 15 years to life under the "One Strike" law. (Pen. Code,

§ 667.61.) (All further statutory references are to the Penal Code.) It is undisputed that

three of those counts occurred on a single occasion in 2003. Those crimes were Rivas's

acts of kissing Jane's neck, touching her breast, and rubbing his penis on her vagina

(together, the 2003 crimes). Rivas argues the trial court erred by imposing separate life

sentences for each of the 2003 crimes.

       As Rivas points out, at the time he committed the 2003 crimes, the "One Strike"

law provided that the applicable prison term "shall be imposed on the defendant once for

any offense or offenses committed against a single victim during a single occasion."


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(§ 667.61, former subd. (g).) Our Supreme Court interpreted the phrase "during a single

occasion" in that version of the One Strike law to mean the offenses "were committed in

close temporal and spatial proximity." (People v. Jones (2001) 25 Cal.4th 98, 107

(Jones).) Applying that definition, our Supreme Court indicated that "a sequence of

sexual assaults by defendant against one victim that occurred during an uninterrupted

time frame and in a single location" should be determined to have occurred on a single

occasion within the meaning of the statute. (Id. at pp. 101, 107 [sexual assaults were

committed on a single occasion when the defendant performed numerous sex acts on the

victim in a car over the span of at least one and a half hours].)

       The People concede and we agree that the court erred in imposing separate life

sentences for each of the 2003 crimes. Those crimes occurred during an uninterrupted

time frame in a single location against one victim. (Jones, supra, 25 Cal.4th at p. 107.)

Thus, Rivas may be sentenced to only one life term for the 2003 crimes. (§ 667.61,

former subd. (g); People v. Stewart (2004) 119 Cal.App.4th 163, 174-175.)

       Rivas also argues the trial court erred in imposing a separate life sentence on the

count involving Jane that he claims was not supported by substantial evidence, namely

the count pertaining to touching Jane's vagina underneath her clothes. He contends the

prosecution failed to present sufficient evidence that the crime occurred on a different

occasion from the other acts involving Jane. As we previously discussed, the crime

Officer Peterson described where Rivas touched Jane's vagina underneath her clothes was

separate and distinct from Rivas's other crimes against her. (Ante, pt. I.)




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       Jane explicitly described two separate incidents of molestation that involved her

vagina. In one instance, Rivas kissed Jane's neck, touched her breast and rubbed his

penis on her vagina while her clothes were off. This incident differed from the one

Officer Peterson described in that Jane was not wearing clothing in the incident she

described and was wearing clothing in the incident Officer Peterson described. Jane

testified that in another incident, Rivas placed her on a chair and digitally penetrated her.

Digital penetration differs from the "touching" that Officer Peterson described. Based on

the differences in the incidents as described by Jane and Officer Peterson, the evidence

supports the trial court's imposition of a separate life sentence for Rivas's lewd act of

touching Jane's vagina under her clothes.

                            III. Cruel and Unusual Punishment

       Rivas contends that his sentence of 180 years to life constitutes cruel and unusual

punishment under the federal and California Constitutions. (U.S. Const., 8th Amend.

[prohibits infliction of "cruel and unusual" punishment]; Cal. Const., art. I, § 17

[prohibits infliction of "[c]ruel or unusual" punishment].) We disagree.

       The Eighth Amendment of the federal Constitution is violated when a sentence is

" 'grossly disproportionate' " to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957,

1001.) Similarly, the California Constitution is violated when the punishment "is so

disproportionate to the crime for which it is inflicted that it shocks the conscience and

offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424,

fn. omitted (Lynch).) " 'Whether a punishment is cruel or unusual is a question of law for

the appellate court, but the underlying disputed facts must be viewed in the light most


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favorable to the judgment.' " (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) A

defendant must overcome a "considerable burden" when challenging a penalty as cruel or

unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.)

       We examine three factors to determine whether a sentence is proportionate to the

offense and the defendant's circumstances such that it does or does not constitute cruel

and unusual punishment: (1) the gravity of the offense and the harshness of the penalty;

(2) sentences imposed for other crimes in the same jurisdiction; and (3) sentences

imposed for the same crime in other jurisdictions. (Ewing v. California (2003) 538 U.S.

11, 22; Lynch, supra, 8 Cal.3d at pp. 425-427 [comparable three-prong test].) Rivas does

not address penalties for similar offenses in other states, nor does he compare sentences

imposed for other crimes in the same jurisdiction. Accordingly, he fails to demonstrate

disproportionality on these grounds. Accordingly, we analyze the gravity of the offense

and the harshness of the penalty.

       "The gravity of an offense can be assessed by comparing the harm caused or

threatened to the victim or society and the culpability of the offender with the severity of

the penalty." (People v. Carmony (2005) 127 Cal.App.4th 1066, 1077.) Here, Rivas

committed lewd acts on three vulnerable children between the ages of five and ten years

old. Two of Rivas's victims were his granddaughters and the other was a family friend's

daughter. The crimes spanned nearly 10 years and occurred over multiple incidents.

Rivas abused his position of trust over the children. The callous and opportunistic nature

of Rivas's crimes against his particularly vulnerable victims are "precisely the sort of




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sexual offense[s] that warrant[] harsh punishment." (People v. Alvarado (2001) 87

Cal.App.4th 178, 200.)

       Rivas asserts his sentence was cruel and unusual because certain of his crimes

were less egregious than others and did not involve bodily harm. He points to the 15

years to life sentences he received for kissing Jane on the neck and Abby on the stomach.

We are not persuaded by this argument. We do not look at Rivas's acts in isolation;

rather, we must look at the totality of the circumstances surrounding the commission of

the offense, including motive, the manner in which the crime was committed, the extent

of defendant's involvement, and the consequences of his conduct. (People v. Dillon

(1983) 34 Cal.3d 441, 479.) While some of Rivas's conduct may not have resulted in

bodily injury to his victims, he caused potential psychological and emotional trauma to

his young victims. Further, in a calculated manner, Rivas waited until he was alone with

his victims to abuse them. Moreover, Rivas's acts of kissing Jane on the neck and Abby

on the stomach were committed in the context of also touching the girls' breasts and

rubbing their vaginas.

       Given the nature of Rivas's conduct involving multiple young and vulnerable

children, the circumstances surrounding the commission of the crimes, Rivas's position of

trust over the children, and his long undeterred history of abusing children, we do not

find Rivas's sentence so disproportionate to his conduct to shock the conscience and

offend fundamental notions of human dignity.




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                                     DISPOSITION

       The convictions are affirmed. The matter is remanded for resentencing consistent

with this opinion. Following resentencing, the trial court shall amend the abstract of

judgment and forward a certified copy to the Department of Corrections and

Rehabilitation.


                                                                            McINTYRE, J.

WE CONCUR:


BENKE, Acting P. J.


PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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