Filed 5/18/16 P. v. Villalobos CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069291
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF227613)
                   v.

OMAR VILLALOBOS,                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Brett R.
Alldredge, Judge.
         Gideon Margolis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Omar Villalobos, age 39, was prosecuted for behaving inappropriately toward an
11-year-old girl. It was shown that he held the girl on his lap and caressed her thigh
while watching a sexually themed movie. Based on this conduct, a jury convicted him of
forcible commission of a lewd or lascivious act against a victim under the age of 14 years
(Pen. Code,1 § 288, subd. (b)(1)), exhibiting harmful matter to a minor with the intent to
seduce (former § 288.2, subd. (a)), and misdemeanor child molestation (§ 647.6, subd.
(a)). He was sentenced to an aggregate term of eight years in prison.
       Villalobos challenges the sufficiency of the evidence supporting his felony
convictions, specifically with regard to the element of force required under section 288,
subdivision (b), and the jury’s finding that he exposed the victim to “harmful matter”
within the meaning of section 288.2. The latter claim relates to the content of the video
that was playing during the acts of molestation. He also alleges ineffective assistance of
counsel based on his attorney’s failure to request a statement of reasons for the trial
court’s imposition of consecutive sentencing pursuant to section 667, subdivision (c).
We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       The underlying incident occurred in Dinuba on July 22, 2009. Villalobos was
charged by information in July 2010 and tried before a jury in January 2014. A
significant portion of the prosecution’s case-in-chief was devoted to establishing that
members of the victim’s family attempted to dissuade her from testifying against the
defendant. There was also testimony from a third party witness concerning prior
uncharged offenses. Our summary of the trial evidence is limited to information relevant
to the specific issues raised on appeal.
       Villalobos is described in the record as the victim’s step-uncle, being that his
brother is her stepfather. On the night in question, Villalobos made a phone call to his
brother’s home that was answered by the victim. He told her that he needed to come over
to retrieve an item, and asked if anyone else was there. She advised that her family



       1All   further statutory references are to the Penal Code.


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members were home, but sleeping. Within minutes of hanging up with Villalobos, she
heard him knocking at the front door.
       After being let into the house, Villalobos briefly entered and exited the garage
before sitting down on a couch in the living room. He then turned on the television and
began flipping through channels. The victim came in and out of the room as he was
channel surfing and eventually sat down on an adjacent couch. At some point, Villalobos
rented what the victim described as a “porno” movie. She looked away from the screen
while the movie was playing, but saw at least one scene in which a woman wearing only
underwear was unzipping a man’s pants. Villalobos asked if she had “ever watched
anything like that before,” and she told him no.
       According to the victim’s testimony, Villalobos began whispering things to her,
which prompted her to move closer to him in order to hear what he was saying. Once in
earshot, she realized he was asking if she had ever “done what the girl was doing in the
video to someone.” She again replied no, and returned to the other couch. He requested
that she come back over and sit on his lap, and she complied.
       While the child was seated on his lap, Villalobos put his arm around her waist and
began rubbing her upper thigh with one of his hands. As he did this, he said that he
“wanted to get close to [her] because [they] had never gotten close or talked.” Next, he
rubbed his penis over the top of his clothes and asked the victim if she “liked that.”
Feeling uncomfortable, the victim indicated that she did not like it and attempted to get
off of his lap. In her words: “I tried getting up to leave and he pulled me back down.”
He held the victim on his lap for a few more minutes before she was able to move away
from him. The victim retreated to her bedroom, and Villalobos departed from the home
soon afterward.
       The victim reported the incident to her family, who in turn called the police.
Officer David Hernandez of the Dinuba Police Department arrived at the victim’s house
at approximately 12:24 a.m. on the morning of July 23, 2009. He testified to looking

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around the family’s living room and observing an image on their television set. The
screen indicated that a program called “Blonde Bimbos” had been paused at 22 minutes
into the 88-minute feature. The officer’s testimony was corroborated by Comcast billing
records, which showed a $13.99 charge for a pay-per-view movie entitled “Blonde
Bimbos” that was ordered on July 22, 2009 at 11:14 p.m.
       Testifying in his own defense, Villalobos admitted to ordering and viewing “adult
entertainment,” but disputed the characterization of that material as pornography. He
explained: “It wasn’t like Barely Legal anything, no teens, it was Blond Bimbos …
Entertainment like Playboy.” On rebuttal, a police detective who questioned Villalobos
about the incident testified that he had originally described the movie as being “X-rated.”
       The jury deliberated for a little over an hour before returning a verdict finding
Villalobos guilty as charged on all counts. The trial court later imposed an eight-year
prison sentence, comprised of a six-year term for committing a forcible lewd act on a
child and a consecutive two-year term for exhibition of harmful matter with the intent to
seduce, with credit for 615 days of presentence custody and conduct time. No time was
imposed for the misdemeanor child molestation offense. Additional facts pertaining to
the trial court’s sentencing decisions are set forth in the Discussion, post.
                                       DISCUSSION
Sufficiency of the Evidence
Standard of Review
       “In resolving claims involving the sufficiency of evidence, a reviewing court must
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.’ ” (People v. Marshall (1997) 15 Cal.4th 1, 34.) Each
element of the offense must be supported by substantial evidence, i.e., evidence that
reasonably inspires confidence and is of credible and solid value. (People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 89; People v. Raley (1992) 2 Cal.4th 870, 891.) “A

                                              4.
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.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) This standard of review
applies in cases such as this one where the prosecution relies on circumstantial evidence
to prove certain elements of the charged offenses. (Ibid.)
Use of Force in Conjunction with a Lewd Act
       Section 288, subdivision (a) criminalizes the commission of any lewd or lascivious
act on a child under the age of 14 “with the intent of arousing, appealing to, or gratifying
the lust, passions, or sexual desires” of the perpetrator or the child. Subdivision (b)(1) of
the statute proscribes any such conduct committed “by use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury….” The level of force
contemplated by section 288, subdivision (b)(1) is an amount “ ‘substantially different
from or substantially greater than that necessary to accomplish the lewd act itself.’ ”
(People v. Soto (2011) 51 Cal.4th 229, 242.) “According to the majority of courts, this
includes acts of grabbing, holding and restraining that occur in conjunction with the lewd
acts themselves.” (People v. Alvarez (2009) 178 Cal.App.4th 999, 1005; see People v.
Babcock (1993) 14 Cal.App.4th 383, 387 [jurors may consider the victim’s resistance in
assessing whether defendant used force to accomplish the lewd act].)
       Villalobos does not dispute that he used force to hold the victim on his lap against
her will. He argues instead that the application of force “occurred after the lewd act had
been committed.” The problem with this argument is its presumption that caressing the
victim’s thigh was the only actionable conduct upon which the section 288,
subdivision (b)(1) conviction could have been based. Viewing the evidence in the light
most favorable to the judgment, a reasonable trier of fact could have concluded that
holding the child on his lap while watching an erotic video was itself a lewd or lascivious
act.



                                              5.
       “Section 288’s defining characteristic is ‘the defendant’s intent to sexually exploit
a child, not the nature of the offending act.’ ” (People v. Valenti (2016) 243 Cal.App.4th
1140, 1160.) “Any touching of a child under the age of 14 violates [the statute], even if
the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to
arouse or gratify the sexual desires of either the perpetrator or the victim.” (People v.
Lopez (1998) 19 Cal.4th 282, 289, original italics.) For example, an ostensibly innocent
embrace or similar display of “[p]hysical affection among relatives, generally considered
acceptable conduct, nonetheless could satisfy the ‘any touching’ aspect of section 288 …
if accompanied by the requisite lewd intent.” (Id. at p. 291.)
       These governing principles lead us to conclude there is substantial evidence to
support the jury’s verdict. A female sitting on a man’s lap is in many contexts innocuous
and unremarkable, but in some instances carries a sexual connotation. Villalobos’s
wrongful intent is readily inferable from the surrounding circumstances, and the
contemporaneous act of forcing the victim to sit on his lap constitutes sufficient evidence
from which the jury could have found the elements necessary to establish a violation of
section 288, subdivision (b)(1).
Exhibition of Harmful Matter
       Current and former versions of section 288.2 forbid knowingly exhibiting to a
minor any type of “harmful matter” as that term is defined in Section 313. (Stats. 1997,
ch. 590, § 1; Stats. 2013, ch. 777, § 2.) The law in effect at the time of the subject
incident also required proof of the defendant’s intent to seduce the minor, which case law
has interpreted as the intent “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, 240.) Villalobos claims the evidence adduced at trial was
insufficient to establish the element of “harmful matter” and/or his intent to seduce the
victim.



                                              6.
       “Harmful matter” is defined in section 313 as “matter, taken as a whole, which to
the average person, applying contemporary statewide standards, appeals to the prurient
interest, and is matter which, taken as a whole, depicts or describes in a patently offensive
way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political,
or scientific value for minors.” (§ 313, subd. (a).) In People v. Dyke (2009)
172 Cal.App.4th 1377 (Dyke), the First District observed that this statutory language
tracks the definition of obscenity established in Miller v. California (1973) 413 U.S. 15,
24 (Miller), with two exceptions.2 (Dyke, supra, 172 Cal.App.4th at pp. 1382-1383).
The first difference is that section 313 requires the trier of fact to use a statewide standard
as the relevant community standard by which the material is evaluated. (Id. at p. 1383.)
The second distinction is that section 313 requires the trier of fact to determine whether
the work lacks serious literary, artistic, political, or scientific value for minors, as
opposed to considering how the material might otherwise be appreciated by the average
adult. (Ibid.)
       In Dyke, the defendant was found guilty of exhibiting harmful matter to a 16-year-
old girl in violation of former section 288.2, subdivision (a) based upon “only a bare-
bones recital by [the victim] of what she saw: a nude woman dancing and a naked couple
having sex, shown from the waist up, and her own characterization of it as
‘pornography.’ ” (Dyke, supra, 172 Cal.App.4th at p. 1385.) The appellate court
reversed the conviction for insufficient evidence due to a lack of information regarding

       2 The Miller decision created a three-prong test to determine if material is obscene
and thus subject to regulation by the states without offending the First Amendment to the
United States Constitution. First, the trier of fact must decide if the average person
applying contemporary community standards would conclude the material, taken as a
whole, appeals to a prurient interest. Second, the trier of fact must determine whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law. Third, the trier of fact must determine whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(Miller, supra, 413 U.S. at p. 24.)


                                               7.
the context in which nudity and sex had been portrayed in the subject material. (Id. at
pp. 1385-1387.) The victim’s labeling of the material as “pornography” was not
probative of the issue because there had been “no testimony as to what she meant by that
term, or how broadly it may have been intended.” (Id. at p. 1384, fn. 5.)
       The other leading case in this area is People v. Powell (2011) 194 Cal.App.4th
1268 (Powell). There, a 10-year-old victim not only characterized the movies shown to
her as “pornographic,” but described scenes containing “[p]enises, breasts, and vaginas
featured in lewd displays as the actors ‘did it,’ i.e., engaged in sexual activity….” (Id. at
pp. 1275, 1286, 1295.) Contrasting this evidence with the testimony found to be
insufficient in Dyke, the Sixth District determined that it met “the minimum required for
a rational trier of fact to conclude that defendant forced the victim to watch obscene
depictions within the meaning of section 313, subdivision (a).” (Powell, at p. 1295.)
       The evidence in this case, while hardly overwhelming, permits a reasonable
inference that the movie shown to Villalobos’s victim met the statutory definition of
“harmful matter.” In light of the scene described in the victim’s testimony, the very title
of the movie, “Blonde Bimbos,” suggests content promoting the sexual objectification of
women. The premium rate of $13.99 per viewing offers another clue with respect to
substance and context, as does Villalobos’s admission at trial that the images of a woman
unzipping a man’s pants occurred during the opening minutes of the video. These facts
alone may not have risen to the level of substantial evidence, but the threshold was met
by proof that Villalobos actually admitted the video was “X-rated,” which is a term
commonly understood to mean “relating to or characterized by explicit sexual material or
activity.” (Merriam-Webster’s Collegiate Dict. (11th ed. 2003) p. 1149.)
       On the witness stand, Villalobos denied ever telling police that he rented an X-
rated movie and insisted the video was merely a form of “adult entertainment” akin to
Playboy. He testified to his personal belief that adult entertainment is distinguishable
from X-rated material because it can include movies that “don’t show any privates.” He

                                              8.
further explained that Playboy-esque films do not contain graphic sex scenes. The jury
was free to accept Villalobos’s testimony regarding his understanding of the difference
between “adult entertainment” and X-rated videos, but reject his denials about previously
admitting that the movie he rented fell into the latter category. Taken as a whole and
viewed in the light most favorable to the judgment, the evidence is sufficient to support
the jury’s conclusions regarding the issue of “harmful matter.”
       Appellant’s remaining arguments concerning the element of intent require little
discussion. “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.) Jurors could have easily inferred Villalobos’s
intent to seduce the victim, i.e., his intent to entice her into engaging in a sexual act
involving physical contact, by the questions he asked her, such as whether she had ever
“done what the girl was doing in the video to someone.”
Sentencing Issues
       The trial court imposed consecutive mid-term sentences for Villalobos’s
convictions under former versions of section 288, subdivision (b)(1) and section 288.2,
subdivision (a), resulting in a total prison term of eight years.3 This sentence was
authorized by section 667.6, subdivision (c), which provides for an alternative sentencing
scheme in cases where the defendant is found guilty of certain types of sex crimes,


       3 The version of section 288.2 in effect at the time of Villalobos’s offense made
the crime of exhibiting harmful matter to a minor punishable by 16 months, two years, or
three years in prison. (People v. Simmons (2012) 210 Cal.App.4th 778, 788; see Stats.
1997, ch. 590, § 1.) The current version of this statute follows the same felony
sentencing scheme, but imposes heightened penalties where the harmful matter involves
child pornography. (§ 288.2, subds. (a)(1), (2).) The version of section 288, subdivision
(b)(1) in effect at the time of Villalobos’s offense made the forcible commission of a
lewd act upon a child punishable by 3, 6, or 8 years in prison. (Stats. 2010, ch. 219, § 7.)
That code section has since been amended to impose longer periods of incarceration; the
crime is now punishable by 5, 8, or 10 years in prison. (§ 288, subd. (b)(1).)


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including any violation of section 288, subdivision (b). (§ 667.6, subds. (c), (e)(5).)
“Specifically, section 667.6(c) ‘allows the court in its discretion to sentence a defendant
to full term consecutive sentences rather than the “one-third of the middle term”
consecutive sentence formula set forth in section 1170.1, subdivision (a).’ ” (People v.
Sasser (2015) 61 Cal.4th 1, 14.)
       A trial court’s imposition of consecutive prison terms pursuant to section 667.6,
subdivision (c) must be accompanied by a statement of reasons. (People v. Belmontes
(1983) 34 Cal.3d 335, 347-348.) Villalobos complains of the trial court’s failure to
provide the required explanation. However, respondent correctly notes Villalobos did not
object to this omission at the time of sentencing, and the law is clear that forgoing such
objections results in a forfeiture of the claim. (People v. Scott (2015) 61 Cal.4th 363,
406.) Mindful of these circumstances, Villalobos resorts to the common tactic of alleging
ineffective assistance of counsel as a means of circumventing the forfeiture rule on direct
appeal.
       To establish a claim of ineffective assistance of counsel, an appellant must show
“(1) counsel’s performance was deficient because it fell below an objective standard of
reasonableness under prevailing professional norms, and (2) counsel’s deficiencies
resulted in prejudice.” (People v. Centeno (2014) 60 Cal.4th 659, 674.) The test for
prejudice is whether there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
(Strickland v. Washington (1984) 466 U.S. 668, 694.) For the reasons that follow, we
conclude Villalobos’s arguments fall short of establishing prejudice. (See id. at p. 697
[“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice … that course should be followed.”].)
       At the sentencing hearing, defense counsel asked the trial court to impose a
mitigated sentence that would entail no more than three years of prison time. The
prosecution argued for an aggravated sentence of 11 years, i.e., consecutive upper terms

                                             10.
for the two felony convictions. The prosecution’s argument was based in part on
evidence of Villalobos’s witness dissuasion efforts, which had allegedly caused the case
to drag on for more than five years and exacerbated the impact of the crimes on the
victim to the point where she moved out of her mother and stepfather’s home to live with
other relatives.
       The trial court’s statements preceding the imposition of sentence indicate that it
was receptive to the victim impact argument: “It is a sad commentary that after all the
paper flies, after all the comments are made, not even one person on behalf of this child
wishes to be heard or writes on behalf of the trauma that she has had to endure due to no
fault of her own whatsoever.” The court cited the witness dissuasion evidence as a factor
weighing against the selection of mitigated terms for appellant’s convictions, but
“decline[d] to characterize this case as an aggravated case” warranting the upper terms
requested by the prosecution. The trial court ultimately imposed a sentence that mirrored
the recommendation of the probation department.
       The relevant conclusions set forth in the probation report, which specifically noted
the court’s discretionary authority to impose fully consecutive sentences pursuant to
section 667.6, subdivision (c), were as follows: “The defendant has a lengthy prior record
of criminal conduct, and he is currently pending sentencing in [an unrelated case].
Furthermore, his criminal activity appears to be increasing in seriousness. The defendant
used his position of trust to commit the offense, making it egregious in nature, and
deserving of a disciplinary response to protect the community, and deter others from
criminal conduct by demonstrating its consequences. Therefore, it is respectfully
recommended the defendant’s application for probation be denied and he be committed to
State Prison for the mid-term of six years in Count 1, to run fully and consecutively to a
two-year term in Count 2 for a total term of eight years.”
       Villalobos’s claim of prejudice rests upon several assumptions. He argues the trial
court likely “misunderstood the scope of its discretion,” i.e., was unaware it had the

                                            11.
option to not impose fully consecutive prison terms. The basis for this argument lies in
the prosecution’s written statement in aggravation, which contained the erroneous
contention that consecutive sentences were mandatory under section 667.6 subdivision
(d).4 Although the trial court rejected the prosecution’s sentencing analysis and adopted
the recommendations of the probation department, which had directed the court’s
attention to the applicable statutory authority (i.e., section 667.6, subdivision (c)),
Villalobos believes the court was nevertheless misled by the prosecution’s misstatement
of the law, which purportedly explains why it did not provide a statement of reasons for
its sentencing decision. From this premise he theorizes that an objection by his trial
attorney would have alerted the trial court to its misapprehension of the law, and the court
would have exercised its discretion to sentence him to a shorter period of incarceration.
       A trial court is presumed to have understood and properly exercised its sentencing
discretion. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) As Villalobos concedes
in his briefing, the record must affirmatively demonstrate the trial court was unaware of
its discretionary authority in order for us to accept his arguments. (See People v.
Fuhrman (1997) 16 Cal.4th 930, 944-945.) Put differently, “remand is unnecessary if the
record is silent concerning whether the trial court misunderstood its sentencing
discretion.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.) Although
Villalobos’s theories are plausible, the record does not affirmatively demonstrate the trial
court’s ignorance or confusion with regard to the scope of its sentencing discretion.
Furthermore, “given that the sentence the court meted out coheres with the details of the
probation report’s recommendations, ‘the natural inference is that it agreed with its
findings.’ ” (Powell, supra, 194 Cal.App.4th at pp. 1298-1299.) Because the burden of
showing prejudice has not been satisfied, the ineffective assistance of counsel claim fails.

       4 Section 667.6, subdivision (d) provides: “A full, separate, and consecutive term
shall be imposed for each violation of an offense specified in subdivision (e) if the crimes
involve separate victims or involve the same victim on separate occasions.”


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                                 DISPOSITION
     The judgment is affirmed.



                                               _____________________
                                                   GOMES, Acting P.J.
WE CONCUR:


 _____________________
PEÑA, J.


 _____________________
SMITH, J.




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