Filed 1/29/15 P. v. Valdovinos CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039339
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1120585)

             v.

JOEL MENDOZA VALDOVINOS,

         Defendant and Appellant.



                                           STATEMENT OF THE CASE
         An information charged defendant Joel Mendoza Valdovinos with one count of
forcible lewd conduct on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1);
count 1), one count of assault with intent to commit lewd conduct on a child under the
age of 14 (Pen. Code, §§ 220, subd. (a), 288, subd. (a); count 2), one count of sexual
battery (Pen. Code, § 243.4, subd. (a); count 3), and four counts of forcible rape (Pen.
Code § 261, subd. (a)(2); counts 4, 5, 6, and 7). Liliana Doe was the alleged victim in
count 1, V. Doe was the alleged victim in counts 2 and 3, and A. Doe was the alleged
victim in counts 4 to 7. For each count, the information alleged a multiple-victim
enhancement (Pen. Code, § 667.61, subds. (b), (c) & (e)).
         A jury convicted defendant on counts 1, 2, 4, 5, 6, and 7. As to each count, the
jury found the multiple-victim allegation to be true. The jury was unable to reach a
verdict on count 3, and the trial court declared a mistrial on that count. The trial court
sentenced defendant to a prison term of 75 years to life consecutive to four years.
       Defendant now appeals from the judgment of conviction. On appeal, defendant
makes the following arguments: 1) the trial court erred in ruling that evidence was cross-
admissible under Evidence Code section 1108; 2) the trial court erred in refusing to sever
counts 1, 2, and 3 from counts 4, 5, 6, and 7; 3) joinder of all the counts rendered
defendant’s trial fundamentally unfair and resulted in a due process violation; and 4)
count 2 must be reversed due to insufficient evidence that the victim was under the age of
14.
       As set forth below, we conclude that the trial court did not err in issuing its rulings
regarding cross-admissibility and severance, and we further conclude that defendant did
not suffer a due process violation. Given that there was no evidence that the victim was
under the age of 14, we conclude that defendant’s conviction for assault with intent to
commit lewd conduct on a child under the age of 14 must be reduced to simple assault.
We accordingly will modify the judgment to reduce the conviction in count 2 to simple
assault, remand the matter to the trial court for resentencing on that count, and affirm the
judgment in all other respects.
                                  STATEMENT OF THE FACTS
The Victims, Witnesses, and Defendant
       A. Doe1 began dating defendant in 2004, and they lived together off and on
between 2004 and 2009. Defendant was the father of A.’s two children, a son born in
2005 and a daughter born in 2007. Although A. and defendant never married, A.
considered defendant to be her husband.



       1
        At trial, all of the victims and many of the witnesses were referred to by the
surname Doe. This opinion will use first names when discussing those individuals.
                                              2
       Between December 2006 and December 2008, A.’s mother, E. Doe, lived in an
apartment complex in San Jose. A.’s younger sisters, V. Doe and Mariela Doe, lived
with E. E. testified that defendant was “like” A.’s husband, and Mariela testified that she
“thought of [defendant] like family.” Defendant sometimes visited the apartment where
E., V., and Mariela lived.
       Between December 2006 and December 2008, Adriana Doe lived in the same
apartment complex as E. Adriana’s two children, Liliana Doe and Eduardo Doe, lived
with Adriana. Liliana and Eduardo had seen defendant at their apartment complex, and
they knew that defendant was part of E.’s family.
Counts 1, 2, and 3
       One day between December 2006 and December 2008, Adriana asked E. to
babysit Liliana and Eduardo, and Adriana left Liliana and Eduardo at E.’s apartment. V.
and Mariela were present at the apartment. E. left the apartment, and she placed V. in
charge of the three other children. At that time, V. was 14 or 15 years old, Liliana was
seven or eight years old, Eduardo was approximately five years old, and Mariela was four
or five years old.
       While the children were playing or watching television, defendant entered the
apartment. Defendant picked Liliana up and dropped her onto the bed in E.’s bedroom.
He got on top of Liliana, and he pinned her hands down with one of his own hands.
Defendant touched Liliana’s breasts under her clothes. He also touched Liliana’s vaginal
area.2 He did not insert anything into Liliana’s vagina. Liliana told defendant to stop
touching her, and she screamed for help. Mariela and V. laughed while defendant was on
top of Liliana, and it appeared to Eduardo that Mariela and V. believed that defendant



       2
         Liliana could not remember if defendant touched her vaginal area over or under
her clothes.
                                             3
was just playing with Liliana. Defendant eventually let go of Liliana, and she hid in the
bathroom.
       At another point while defendant was in the apartment, he dragged V. into the
bedroom. He put V. on the bed and got on top of her. He grabbed her arms and held her
down. He told V. that he liked her, and he kissed her on her mouth. V. told defendant to
stop, and she turned her head. Eduardo saw defendant “humping” V. V. testified that
defendant never touched her breasts or “private area.”
       At some point, the children locked themselves inside the apartment’s bathroom.
Defendant slid a knife blade under the bathroom door, and he told the children to come
out. Defendant said he was the “person who cuts off people’s ears.” When defendant
became silent, Mariela exited the bathroom. Defendant chased Mariela. Mariela fell
down and cut her ear on a mirror or a fish tank. Defendant then left the apartment.
       When Liliana returned to her family’s apartment, she told her mother that
defendant had touched her breasts and vagina. A week later, Liliana told her father that
defendant had touched her breasts. Her parents did not contact the police. In 2010,
Liliana told a school counselor that she had been sexually assaulted, and the counselor
contacted the police.
Counts, 4, 5, 6, and 7
       Shortly after A. gave birth to her son in 2005, she and defendant got into an
argument. When the argument ended, defendant told A. that he wanted to have sex with
her, and he told her that it was her “obligation” to have sex with him. A. did not want to
have sex with defendant. Defendant climbed on top of her and took her clothes off. A.
tried to push defendant off of her, and she said, “No.” Defendant held down A.’s arms,
and he overpowered her. Defendant had sex with A. She cried and told him to stop.
Defendant said that she was his wife, and that she was supposed to have sex with him.



                                             4
       Sometime around Mother’s Day 2008, A. entered her bathroom in order to take a
shower. She began undressing, and defendant pushed the bathroom door open.
Defendant was paranoid and appeared to be high on drugs. He accused A. of being in the
bathroom with a man. A. said that nobody was in the bathroom with her. She wrapped
herself in a towel and exited the bathroom. Defendant called A. a bitch and accused her
of “fucking someone in the bathroom.” He told her, “I want to smell you.” Defendant
threw A. onto their bed, and he pulled the towel off of her. He pulled off her pants and
underwear, pinned down her hands, and spread her legs. He wiped her vagina with a
piece of paper and said, “I’m going to take this down to a lab.” He said that the lab
would confirm that A. was a bitch who had been “fucking someone else.” A. cried, and
she felt humiliated. Defendant forced A. to have sex with him. She did not want to have
sex with defendant, and she tried to push him away. She screamed. Defendant put his
hand over her mouth, called her a bitch, and told her that she “liked it.” A. stopped
screaming when her son pounded on the bedroom door.
       Approximately one month later, A. was sleeping in her bed. Her two children
were “right next to” her in the bed. A. woke up, and she saw defendant looking at her.
Defendant told her that he wanted to have sex. A. said, “No.” Defendant pulled off A.’s
nightclothes and underwear. He forced her legs open and forced her to have sex. A.
“started fighting back,” and she tried to push defendant off of her. She eventually
stopped fighting back because she did not want her children, who were still next to her in
the bed, to wake up and see what was happening. A. cried. Defendant called her a bitch,
and he told her that she “liked it.” When defendant finished having sex with A., she cried
for half an hour.
       Sometime in October or November 2009, A. was putting her children to sleep in
the bedroom. Defendant entered the room, and he started “getting physical” with A. He
wanted to have sex with her, and he pulled off her pajamas and underwear. A. “couldn’t

                                             5
take it anymore.” She wrapped herself in a towel and tried to run out of the house.
Defendant ran toward her and grabbed her hair. He grabbed her chin and “cracked” her
neck to one side. A. fought to open the house’s front door. Defendant then “cracked” her
neck to the other side, and A. lost consciousness for about one minute. When she
regained consciousness, she told defendant to leave. Defendant spread her legs and
forced her to have sex on the floor. A. told him to stop, and she tried to push him away.
She eventually stopped resisting because she thought it would be over faster if she
stopped fighting back.
       In 2010, A. learned that the police were investigating an incident involving
defendant, V., and Liliana. After learning of that investigation, A. contacted the police
and reported that defendant had sexually assaulted her. She never told her family about
the sexual assaults because she felt embarrassed and humiliated.
Defense Evidence
       On November 2, 2009, San Jose Police Officer Terry Foster interviewed A. She
explained that defendant had physically assaulted her. Officer Foster saw that A. had
bruises. A. never told Officer Foster that defendant had sexually assaulted her.
                                        DISCUSSION
I. EVIDENCE CODE SECTION 1108
       Defendant contends that the trial court erred in ruling, pursuant to Evidence Code
section 1108,3 that the evidence regarding the molestation of Liliana and V. was cross-
admissible propensity evidence that the jury could consider in reaching a verdict on the
rape counts involving A. Specifically, defendant asserts that the ruling was erroneous
because the molestation of Liliana and V. was “factually unlike” the rapes of A. He also
emphasizes that the molestation evidence was “highly inflammatory” and would thus



       3
           Subsequent unspecified statutory references are to the Evidence Code.
                                             6
“make objective evaluation of the weaker rape allegations unlikely.” As explained
below, the trial court did not abuse its discretion in issuing its ruling pursuant to section
1108.
        A. Background
        Before trial, defendant filed a motion arguing that “evidence pertaining to counts
one through three and counts four through seven . . . should not be cross-admissible under
[section] 1108.” The prosecutor opposed defendant’s motion. The prosecutor argued, “I
am making a motion in limine that the court should allow an argument to the jury that
because the defendant committed one or more of the crimes involving the children that
they can consider that as propensity evidence for the adult rape and the reverse as well.”
        The trial court ruled that the evidence was cross-admissible: “The court is ruling
under [section] 1108 that the evidence of alleged child molestation and the alleged
spousal rape is cross-admissible.” The court accordingly instructed the jury that if it
found defendant guilty of any of the charged sex offenses, it could “conclude from that
evidence that the defendant was disposed or inclined to commit another sexual
offense . . . and . . . also conclude that the defendant was likely to commit that other
sexual offense.”
        B. The Trial Court Did Not Abuse its Discretion
        Section 1108 is an exception to section 1101’s general prohibition against
admitting character evidence to prove criminal disposition or propensity. (See § 1101,
subd. (a); People v. Jandres (2014) 226 Cal.App.4th 340, 352 (Jandres).) Section 1108
states, in pertinent part: “In a criminal action in which the defendant is accused of a
sexual offense, evidence of the defendant’s commission of another sexual offense or
offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible
pursuant to Section 352.” (§ 1108, subd. (a).) Section 1108 “extends to evidence of both
charged and uncharged sex offenses.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1162,

                                               7
italics omitted.) We review a trial court’s ruling under section 1108 for abuse of
discretion. (People v. Loy (2011) 52 Cal.4th 46, 61.)
       Here, defendant does not dispute that the charged offenses were “sexual offenses”
within the meaning of section 1108. Instead, defendant contends that cross-admissibility
was barred by section 352.
       Section 352 states: “The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” “A court deciding whether
evidence of one or more sexual offenses meeting the definitional requirements of . . .
section 1108 should nonetheless be excluded pursuant to . . . section 352 undertakes a
careful and specialized inquiry to determine whether the danger of undue prejudice from
the propensity evidence substantially outweighs its probative value. Specifically, the
court weighs factors such as the ‘nature, relevance, and possible remoteness [of the
evidence], the degree of certainty of its commission and the likelihood of confusing,
misleading, or distracting the jurors from their main inquiry, its similarity to the charged
offense, its likely prejudicial impact on the jurors, the burden on the defendant in
defending against the uncharged offense, and the availability of less prejudicial
alternatives to its outright admission, such as admitting some but not all of the
defendant’s other sex offenses . . . .’ [Citation.].” (People v. Merriman (2014) 60 Cal.4th
1, 41 (Merriman).) Applying the preceding factors, we evaluate defendant’s arguments
and conclude that cross-admissibility was not barred by section 352.
       Contrary to defendant’s assertion, the charged offenses were factually similar.
Each of the charged offenses involved force and violence against a female victim known
to the defendant. In each charged offense, defendant pinned the victim down and
overpowered her in order to accomplish a sexual act. For each charged offense,

                                              8
defendant gained access to the victim because he was part of A.’s family. As the trial
court noted in issuing its ruling, all of the charged offenses were “sexual acts of
opportunity within a family unit rather than a predator finding stranger victims.” Given
these factual similarities, defendant’s molestation of Liliana and V. tended to show that
defendant was predisposed to commit the rapes of A. (People v. Jandres (2014) 226
Cal.App.4th 340, 355-356 (Jandres) [an uncharged sex offense shows a predisposition to
commit a charged sex offense if the two offenses are similar].) Accordingly, the
molestation evidence was probative and relevant to the jury’s inquiry into the rape
charges. (See id. at p. 355 [evidence of uncharged sexual conduct is probative if “the
uncharged conduct is similar enough to the charged behavior to tend to show defendant
did in fact commit the charged offense”].)
       The probative value of the molestation evidence was not substantially outweighed
by the danger of undue prejudice. We are not persuaded by defendant’s contention that
the molestation of Liliana and V. was more inflammatory than the counts involving A.
Although Liliana and V. were minors, we are not convinced that defendant’s conduct
toward them was more egregious than his conduct toward A. The evidence showed that
defendant pulled off A.’s clothes and forcibly raped her in the presence of their children.
On one occasion he “cracked” her neck so violently that she lost consciousness. During
the rapes, defendant called A. a bitch and made other statements designed to humiliate
her. In contrast, there was no vaginal penetration during the incident involving Liliana
and V., there was no evidence that defendant removed either girl’s clothing, and
defendant never made statements designed to humiliate the girls. Although defendant
pinned down Liliana and V., he never utilized the type of great force he used in knocking
A. unconscious. Indeed, Mariela and V. laughed while they watched defendant touch
Liliana, a circumstance suggesting that defendant did not use substantial force against
Liliana. We therefore cannot conclude that the evidence of the molestation of Liliana and

                                              9
V. was unduly inflammatory and thus likely to distract or mislead the jurors in their
inquiry regarding the rape allegations involving A.
       We further note that the evidence pertaining to the molestation of Liliana and V.
cannot be categorized as stronger than the evidence pertaining to the rapes of A.
(Jandres, supra, 226 Cal.App.4th at p. 356 [the “relative strength of the two cases also is
relevant to assessing the potentially prejudicial impact” of evidence of uncharged sexual
conduct].) There were many inconsistencies in the children’s trial testimony regarding
the molestation charges: Liliana testified that defendant touched her breasts and vaginal
area; Mariela testified that defendant did not touch Liliana’s breasts or vaginal area;
Eduardo testified that defendant touched Liliana’s breasts only; Mariela and V. testified
that Eduardo was not present at the apartment when defendant molested Liliana and V.;
the children provided differing testimony regarding the locations at which defendant
molested Liliana and V.; the children disagreed as to which of them were inside the
locked bathroom when defendant slipped the knife blade under the bathroom door; and
the children disagreed regarding the order in which the events inside the apartment
occurred. In contrast, A.’s trial testimony regarding the rapes was detailed and generally
consistent. The circumstance that the jury failed to reach a verdict on one of the counts
relating to V. suggests that the evidence pertaining to the molestation charges was not
materially stronger than the evidence pertaining to the rape charges. We therefore are not
persuaded by defendant’s assertion that the strength of the molestation evidence
prejudiced the jury in its inquiry into the rape charges.
       We finally note that the molestation of Liliana and V. occurred during the same
time period as the rapes of A. All of charged offenses occurred between 2005 and 2009.
Thus, the molestation of Liliana and V. was not too remote in time to lose its probative
value. (See generally People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117 [“whether



                                             10
the uncharged conduct is remote or stale” is “particularly significant” in a section 1108
analysis].)
       Accordingly, based on the foregoing factors, we conclude that the probative value
of the molestation evidence was not substantially outweighed by the danger of undue
prejudice. Section 352 therefore was not a bar to cross-admissibility, and we must
conclude that the trial court did not abuse its discretion in issuing its ruling pursuant to
section 1108.
II. SEVERANCE
       Defendant contends that the trial court abused its discretion in denying his motion
to sever the counts involving Liliana and V. (counts 1, 2, and 3) from the counts
involving A. (counts 4, 5, 6, and 7). In urging us to find error in the denial of the
severance motion, he makes the same arguments as those he made regarding cross-
admissibility under section 1108. Alternatively, defendant asserts that joinder of all the
counts rendered his trial fundamentally unfair and resulted in a due process violation. As
explained below, we find no abuse of discretion in the denial of the severance motion,
and we find no due process violation.
       A. Background
       Before trial, defendant moved to sever the counts involving Liliana and V. from
the counts involving A. The prosecutor opposed severance. At the request of the parties,
the trial court reviewed the preliminary hearing transcript before it ruled on the severance
motion. The trial court denied the severance motion. In issuing it ruling, the trial court
noted that there was cross-admissibility of evidence under section 1108, that a weak case
had not been joined with a strong case, and that none of the charges was unusually likely
to inflame the jury against defendant.
       B. The Trial Court Did Not Abuse its Discretion in Denying the Severance
       Motion

                                              11
         Penal Code section 954 provides, in relevant part: “An accusatory pleading may
charge . . . two or more different offenses of the same class of crimes or offenses, under
separate counts . . . . [T]he court in which a case is triable, in the interests of justice and
for good cause shown, may in its discretion order that the different offenses or counts set
forth in the accusatory pleading be tried separately . . . .”
         Here, defendant concedes that all of the charged offenses belonged to the same
class of crimes, and that the statutory requirements for joinder were thus satisfied.
Accordingly, “defendant can predicate error in denying the motion to sever only upon a
clear showing of potential prejudice.” (People v. Bradford (1997) 15 Cal.4th 1229,
1315.)
         “When, as here, the statutory requirements for joinder are met, a defendant must
make a clear showing of prejudice to establish that the trial court abused its discretion in
denying the defendant’s severance motion. [Citations.] In determining whether there
was an abuse of discretion, we examine the record before the trial court at the time of its
ruling. [Citation.] The factors to be considered are these: (1) the cross-admissibility of
the evidence in separate trials; (2) whether some of the charges are likely to unusually
inflame the jury against the defendant; (3) whether a weak case has been joined with a
strong case or another weak case so that the total evidence may alter the outcome of some
or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder
of the charges converts the matter into a capital case.” (People v. Mendoza (2000) 24
Cal.4th 130, 160-161 (Mendoza).)
         Defendant has failed to make a clear showing of prejudice. As discussed in part
I.B., ante, there was cross-admissibility of evidence under section 1108. “[T]hat
circumstance alone is sufficient to dispel any potential of prejudice arising from the
joinder of these counts.” (Merriman, supra, 60 Cal.4th at p. 42.) We note, however, that
the three remaining factors also show that there was insufficient prejudice. As discussed

                                               12
in section I.B., we are not persuaded by defendant’s contention that the charges involving
Liliana and V. were unusually inflammatory. The absence of unusually inflammatory
charges was apparent when the trial court ruled on the severance motion. In ruling on the
severance motion, the trial court specifically noted that, based on its review of the
preliminary hearing transcript, none of the charged offenses was unusually likely to
inflame the jury against defendant. As discussed in part I.B., ante, defendant has failed to
show that a weak case was joined with a strong case. This circumstance was also
apparent when the trial court ruled on the severance motion. In issuing its ruling on the
severance motion, the trial court noted that the children’s preliminary hearing testimony
was “all over the board” and filled with “inconsistencies,” that A.’s preliminary hearing
testimony contained “both consistencies and inconsistencies,” and that the molestation
charges were “neither stronger nor weaker” than the rape charges. Finally, none of the
charges against defendant was a capital offense, so joinder did not convert the matter into
a capital case. Thus, based on the foregoing factors, we must conclude that the trial court
did not abuse its discretion in denying defendant’s severance motion.
       In arguing that the trial court abused its discretion, defendant relies on People v.
Earle (2009) 172 Cal.App.4th 372. Defendant’s reliance on Earle is misplaced. In
Earle, this court held that the trial court abused its discretion in denying the defendant’s
motion to sever an indecent exposure charge from a sexual assault charge. (Id. at pp.
378-379.) In reaching our holding, we explained that the “charges arose from entirely
distinct and dissimilar incidents with no apparent historical connection to one another,”
and that the sexual assault charge “was considerably weaker” than the indecent exposure
charge. (Id. at p. 378.) Here, as previously discussed, the charged offenses all involved
sexual violence against females who were connected to a particular family unit. We have
also already explained that a weak case was not joined with a strong case. Thus, unlike
Earle, the charges against defendant were not dissimilar and unconnected, and no charge

                                             13
against defendant was considerably weaker than another charge. Earle is therefore
distinguishable, and Earle does not compel us to conclude that that the trial court abused
its discretion in denying defendant’s severance motion.
       Finally, defendant cites Coleman v. Superior Court (1981) 116 Cal.App.3d 129 for
the proposition that sex crimes against children are necessarily inflammatory, and that
this circumstance alone required the trial court to sever the counts involving Liliana and
V. from the counts involving A. Defendant’s argument is unpersuasive. Coleman did
not hold that sex crimes against children are inflammatory per se. Rather, Coleman noted
that the charged crimes against children—which included rape and oral copulation—were
highly inflammatory. (Id. at pp. 132, 138, 139.) Coleman also noted: “We do not
purport to lay down any rule as to when a denial of a motion for severance constitutes an
abuse of discretion. In the nature of things, such a determination can only be made on a
case by case basis turning on the particular facts of the cases.” (Id. at p. 139.) As
previously discussed, we have analyzed the particular facts of defendant’s case and
concluded that the offenses against Liliana and V.—which involved neither vaginal
penetration nor oral copulation—were not unusually inflammatory. Coleman therefore
does not require us to conclude that the trial court abused its discretion in denying
defendant’s severance motion.
       C. Joinder Did Not Result in a Due Process Violation
       “Even if a trial court’s severance or joinder ruling is correct at the time it was
made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder
actually resulted in “gross unfairness” amounting to a denial of due process.’ ”
(Mendoza, supra, 24 Cal.4th at p. 162.)
       Here, defendant’s due process argument is premised on the theory that A.
fabricated the rape allegations. Specifically, defendant contends that the evidence at trial
showed that A. “fabricated testimony in connection with this case.” Defendant further

                                              14
contends that the “inflammatory nature of the allegations involving [the] minors and the
relative strength of that case . . . worked to improperly bolster A.’s rape allegations and
rendered [the] trial fundamentally unfair.”
       Defendant’s argument is unconvincing. He assumes that A. fabricated her
testimony because she did not immediately report the rapes to her family and the police.
We cannot conclude that A.’s delayed reporting established that she fabricated her
testimony. At trial, A. explained that she did not immediately report the rapes because
she felt embarrassed and humiliated. This testimony provided a reasonable explanation
for her failure to immediately report. Indeed, it was the “exclusive province” of the jury
to evaluate A.’s testimony and conclude that she was a credible witness. (People v.
Maury (2003) 30 Cal.4th 342, 403.) Moreover, as we have previously explained, we are
not persuaded by defendant’s assertion that the child molestation evidence was stronger
and more inflammatory than the rape evidence. We accordingly cannot conclude that
defendant’s trial involved fabricated rape allegations that were improperly bolstered by
the molestation evidence. Defendant therefore has failed to show that joinder resulted in
a due process violation.




III. SUFFICIENCY OF THE EVIDENCE
       Defendant contends that there was insufficient evidence to support his conviction
for assault with intent to commit lewd conduct on a child under the age of 14 because
there was no evidence that V. was under the age of 14 at the time of the offense. The
People concede that there was no evidence that V. was under the age of 14, and they
request that we reduce defendant’s conviction to the lesser included offense of simple
assault (Pen. Code, § 240). Defendant does not dispute that simple assault is a lesser



                                              15
included offense of assault with intent to commit lewd conduct on a child under the age
of 14. As explained below, we will reduce the conviction to simple assault.
       The information charged defendant with assault in violation of Penal Code
section 220, subdivision (a). That section prohibits assault “with intent to commit
mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289.”
(Pen. Code, § 220, subd. (a)(1).) The information alleged that defendant committed the
assault with the intent to violate Penal Code section 288, subdivision (a). Penal Code
section 288, subdivision (a) prohibits lewd conduct upon “a child who is under the age of
14 years.”
       The evidence failed to establish that V. was under the age of 14. V. testified that
she was 14 or 15 years old at the time of the offense. No one testified that V. was under
the age of 14. Indeed, E. testified that V. was born on June 6, 1991. Given that the
offense occurred sometime between December 2006 and December 2008, V. was at least
15 years old at the time of the offense. Thus, there was insufficient evidence that
defendant intended to commit lewd conduct on a child under the age of 14, and
defendant’s conviction for assault with intent to commit lewd conduct on a child under
the age of 14 cannot stand.
       Penal Code section 1181 grants this court the power to reduce convictions that are
not supported by sufficient evidence: “When the verdict or finding is contrary to law or
evidence, but if the evidence shows the defendant to be not guilty of the degree of the
crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser
crime included therein, the court may modify the verdict, finding or judgment
accordingly without granting or ordering a new trial, and this power shall extend to any
court to which the cause may be appealed.” (Pen. Code, § 1181, subd. (6).)
       We have no reason to doubt that simple assault is a lesser included offense of
assault with intent to commit lewd conduct on a child under the age of 14. (See People v.

                                            16
Elam (2001) 91 Cal.App.4th 298, 308 [“Inasmuch as assault with intent to commit
forcible oral copulation is merely a simple assault committed with the specific intent to
force the victim to commit oral copulation [citation], simple assault is a lesser offense
necessarily included in the greater offense.”]; People v. Carapeli (1988) 201 Cal.App.3d
589, 595 [simple assault is a lesser included offense of assault with the intent to commit
rape].) Moreover, the evidence established that defendant committed simple assault: he
dragged V. to the bed, got on top of her, pinned her down, and kissed her against her will.
(See Pen. Code, § 240 [“An assault is an unlawful attempt, coupled with a present ability,
to commit a violent injury on the person of another.”]; People v. Wright (1996) 52
Cal.App.4th 203, 209, fn. omitted [“An assault consists of an attempt coupled with the
present ability to inflict an ‘injury’ unlawfully on another; this ‘injury’ can be the least
unwanted touching.”].) We therefore will exercise our power under Penal Code section
1181, and we will reduce defendant’s conviction to simple assault.
                                        DISPOSITION
       The judgment is modified to reduce the conviction in count 2 to simple assault
(Pen. Code, § 240), and the matter is remanded for resentencing on that count. In all
other respects, the judgment is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




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           PREMO, J.




____________________________________
           MÁRQUEZ, J.




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