Filed 5/6/14 P. v. Herrera CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR MANUEL HERRERA,

Defendant and Appellant.

 D063090

 (Super. Ct. No. SCD234143)

APPEAL from a judgment of the Superior Court of San Diego County, Theodore 

M. Weathers, Judge. Affirmed.

Carl Fabian, under appointment by the Court of Appeal, for the Defendant and 

Appellant. 

Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant 

Attorneys General, Charles C. Ragland, Deputy Attorney General for the Plaintiff and 

Respondent. 
2

A jury convicted Hector Herrera of oral copulation of a child 10 years of age or 

younger (Pen. Code,1 § 288.7, subd. (d); count 1) and lewd and lascivious touching of a 

child under the age of 14 (§ 288, subd. (a); count 2). The trial court sentenced him to a 

total prison term of 18 years to life, consisting of the indeterminate 15-year-to-life term 

on count 1 and a consecutive three-year determinate term on count 2. Herrera contends, 

for various reasons described below, that the court abused its discretion when it imposed 

consecutive sentences. Conceding that his counsel did not object to some of the court's 

sentencing decisions, he asks that we exercise our discretion to excuse his counsel's 

forfeiture and consider his arguments on the merits. Herrera alternatively argues the 

issue is directly reviewable as a claim for prejudicially ineffective assistance under the 

Sixth Amendment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Raquel G. has three children, the youngest of whom is Valeria G., who was four 

years old at the time of the offenses. In 2011, Raquel was taking Valeria and her other 

children to daycare at a facility owned by Guadalupe Herrera. Mrs. Herrera's husband, 

the defendant, was always at the facility and was her helper. Sometimes when Raquel 

dropped her children off Mrs. Herrera was not present, and either the defendant or Mrs. 

Herrera's sister-in-law would be watching the children. Most mornings the defendant 

was watching the children. The defendant would also take the children to and from 

school because Mrs. Herrera did not drive. Mrs. Herrera relied on the defendant to help 

 

1 Statutory references are to the Penal Code unless otherwise specified. 
3

with the children at the daycare, and he supervised them while she prepared meals or ran 

errands. He would lie down with the children during midday naptime. 

On May 16, 2011, Valeria asked her mother if she knew that the defendant 

touched her. Valeria pointed to her private area and said, "He touches me." On further 

questioning, Valeria told her mother she told the defendant to stop, and he did stop and 

walked away, but "a few minutes later, he came back and he did it again." Raquel asked 

Valeria if she was sure that is what happened, and she responded, "Yes." Valeria told her 

mother she was not lying, and asked her not to tell Mrs. Herrera, but to tell the defendant 

to stop. 

Raquel called police the next day, and an officer spoke with Valeria and Raquel's 

other children. While grabbing her vaginal area, Valeria told the officer the defendant 

was touching her private parts. She also told the officer that the defendant pulled her 

pants off and started licking her vagina. Valeria told the officer it happened on the last 

day she was taken to daycare, which Raquel confirmed was the previous Friday. 

On May 18, 2011, Valeria was interviewed by forensic interviewer Marisol 

Olguin. Valeria told Olguin that Hector took off her pants and licked her vagina (which 

she referred to as her "booty"), while she was sleeping on a chair. According to Valeria, 

Mrs. Herrera was in the kitchen. Valeria reported that she told the defendant, "No." and 

he told her he was going to grab her. Valeria told Olguin it happened one time. Valeria 

said the defendant also touched her once with his hand. 

At trial, Valeria testified that the defendant touched her in her "private spot" with 

his hand while Mrs. Herrera was in the kitchen. She also testified that he licked her. 
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In imposing sentence, the trial court acknowledged it was familiar with the facts 

having presided over the trial, and pointed out the jury had reached verdicts on both 

counts. It found counts 1 and 2 were "separate and discrete acts for which Mr. Herrera 

should be punished consecutively." It continued: "The Court is aware of the lack of a 

significant criminal record on Mr. Herrera's part. I don't believe that he was the person 

that was necessarily entrusted with the children in this daycare situation. Nevertheless, 

he is married to the owner of the daycare and was certainly present and certainly helped 

out on a variety of times, and as such, he was in a position of trust in caring for these 

children, and he violated that position of trust." The court imposed the low term of three 

years on count 2 based on Herrera's lack of a significant criminal record, though it 

observed Herrera was without remorse and still denied committing the offenses. 

DISCUSSION

I. Standard of Review and Legal Principles

California Rules of Court, rule 4.425 provides that "[a]ny circumstances in 

aggravation or mitigation" may be considered in deciding to impose concurrent or 

consecutive sentences unless the fact is used to impose an upper term, enhance 

defendant's sentence, or is an element of the crime. (Cal. Rules of Court, rule 4.425(b).) 

Criteria that may be used include that "[t]he crimes and their objectives were 

predominantly independent of each other" and "[t]he crimes were committed at different 

times or separate places, rather than being committed so closely in time and place as to 

indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a).) 

However, these criteria are not exclusive. California Rules of Court, rule 4.408(a) states: 
5

"The enumeration in these rules of some criteria for the making of discretionary 

sentencing decisions does not prohibit the application of additional criteria reasonably 

related to the decision being made. Any such additional criteria must be stated on the 

record by the sentencing judge." 

This court reviews a trial court's sentencing decision for abuse of discretion. 

(People v. Sandoval (2007) 41 Cal.4th 825, 847 [sentencing in general]; People v. 

Bradford (1976) 17 Cal.3d 8, 20 [concurrent versus consecutive sentences].) "In the 

absence of a clear showing of abuse, the trial court's discretion in this respect is not to be 

disturbed on appeal. [Citations.] Discretion is abused when the court exceeds the bounds 

of reason, all of the circumstances being considered." (Bradford, at p. 20.) We 

undertake our review under this standard, mindful that " 'California courts have long held 

that a single factor in aggravation is sufficient to justify a sentencing choice . . . .' " 

(People v. Quintanilla (2009) 170 Cal.App.4th 406, 413; People v. Williams (1991) 228 

Cal.App.3d 146, 152.) 

II. Separate and Discrete Acts Finding

Herrera contends remand is required because the trial court's finding that he 

committed separate and discrete acts was "inapplicable" and not a proper reason to justify 

imposition of consecutive sentences. He maintains the proper test is whether he engaged 

in a "single period of aberrant behavior" (Cal. Rules of Court, rule 4.425(a)(3)), and the 

record evidence, because it does not show an "appreciable time differential," cannot 

support a consecutive sentence under this factor. 
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As the People point out, defense counsel did not object or challenge this factor as a 

ground for the court to consider. We conclude Herrera has forfeited the contention. 

" '[T]he waiver doctrine should apply to claims involving the trial court's failure to 

properly make or articulate its discretionary sentencing choices. Included in this category 

are cases in which the stated reasons allegedly do not apply to the particular case, and 

cases in which the court purportedly erred because it . . . failed to state any reasons or 

give a sufficient number of valid reasons.' " (People v. Quintanilla, supra, 170 

Cal.App.4th at pp. 412-413, quoting People v. Scott (1994) 9 Cal.4th 331, 353; see 

generally People v. Seijas (2005) 36 Cal.4th 291, 302 [defendant's failure to make a 

timely and specific objection on the ground asserted on appeal renders that ground not 

cognizable].) "The reason for this rule is that '[i]t is both unfair and inefficient to permit 

a claim of error on appeal that, if timely brought to the attention of the trial court, could 

have been easily corrected or avoided.' [Citations.] '[T]he forfeiture rule ensures that the 

opposing party is given an opportunity to address the objection, and it prevents a party 

from engaging in gamesmanship by choosing not to object, awaiting the outcome, and 

then claiming error.' " (People v. French (2008) 43 Cal.4th 36, 46.)

Acknowledging his counsel's inaction, Herrera asks that we either not invoke a 

forfeiture or address whether he received ineffective assistance of counsel due to defense 

counsel's failure to object to the court's sentencing error. To prevail on a claim of 

ineffective assistance of counsel, Herrera "must prove ' "that counsel's representation fell 

below an objective standard of reasonableness under prevailing professional norms, and 

that counsel's deficient performance was prejudicial, i.e., that a reasonable probability 
7

exists that, but for counsel's failings, the result would have been more favorable to the 

defendant." ' [Citation.] ' "A reasonable probability is a probability sufficient to 

undermine confidence in the outcome." ' [Citation.] If a claim of ineffective assistance 

of counsel can be determined on the ground of lack of prejudice, a court need not decide 

whether counsel's performance was deficient." (In re Crew (2011) 52 Cal.4th 126, 150; 

see Strickland v. Washington (1984) 466 U.S. 668, 688.) "If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should 

be followed." (Strickland v. Washington, at p. 697.)

Here, we conclude below that the evidence supports the trial court's finding of 

another factor justifying a consecutive sentence: that Herrera was in a position of trust 

and confidence with respect to Valeria. As stated, a single appropriate factor is sufficient 

to support a decision to impose consecutive sentences. (See People v. Osband (1996) 13 

Cal.4th 622, 728-729; People v. Coelho (2001) 89 Cal.App.4th 861, 888.) The court 

could have selected only that factor to impose Herrera's sentence, and on this record we 

discern no reasonable probability it would not have done so even assuming counsel was 

ineffective in failing to object to the "separate and discrete acts" finding. 

III. Position of Trust Finding

Herrera contends the evidence does not support the trial court's finding that he 

occupied a position of trust with respect to Valeria or the other children; that his duties 

were mainly driving the children to and from school and occasionally watching them 

while they were playing in the playroom or when Mrs. Herrera was cooking. He also 
8

maintains the evidence shows the children at times refused to obey his directions and he 

had to call his wife to speak to the children and direct them to follow his instructions. 

Herrera relies on People v. French (2008) 43 Cal.4th 36 and other authorities, but 

we conclude his arguments are unpersuasive. French involved whether the defendant's 

plea of no contest constituted an admission of the additional aggravating circumstance 

that the defendant took advantage of a position of trust in committing his offense, lewd 

and lascivious conduct with a child under 14 years of age, who was a charge at an inhome daycare run by the defendant's daughter. (French, at pp. 41-42, 50-51.) The 

California Supreme Court held that the factual basis as stated by the prosecutor—that 

defendant committed the offenses against one of his victims when he took him to the 

bathroom located in a park—did not clearly establish that aggravating circumstance. (Id. 

at p. 51.) The court observed that the prosecutor did not state that the victim had been 

entrusted to the defendant's care, nor did the prosecutor specify what the defendant's role 

was in relation to his daughter's daycare. (Id. at p. 51.) French and other authorities 

relied upon by Herrera merely summarize facts that either supported or did not support a 

court's conclusion that a defendant occupied a position of trust; none purport to set forth 

general standards or rules governing that factual inquiry for sentencing purposes. 

(People v. Franklin (1994) 25 Cal.App.4th 328, 338 [evidence was undisputed that 

defendant was victim's stepfather and entrusted with caring for victim and her sister, 

which placed him in a position of trust and confidence regarding the children; such a 

finding was not an element of the crime of continuous sexual abuse and thus its use as an 

aggravating factor was not prohibited]; People v. Dancer (1996) 45 Cal.App.4th 1677, 
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1683, 1693-1695 [finding that the defendant exploited a position of trust was supported 

by evidence that the defendant ingratiated himself to a young child without a resident 

father, brother or playmates; gave her candy and ice cream; let her use his exercise 

equipment; and fostered a relationship in which she trusted him enough to enter his 

garage despite her mother's instruction], disapproved on another ground in People v. 

Hammon (1997) 15 Cal.4th 1117, 1123; People v. Pham (2009) 180 Cal.App.4th 919, 

930 [defendant did not dispute court's conclusion used to impose upper term that he, as 

the victim's treating chiropractor, took advantage of a position of trust]; People v. 

Burbine (2003) 106 Cal.App.4th 1250, 1262-1263 [trial court's finding that appellant 

took advantage of a position of trust by taking them on rides on his big rig truck equipped 

with a sleeping area did not violate rule that aggravating factor could not be an element; 

offense of continuous child abuse was not an element of that offense].) Another authority

cited by Herrera does not involve a sentencing issue. (See People v. Cardenas (1994) 21 

Cal.App.4th 927, 940 [involving sufficiency of the evidence findings as to duress, force 

or fear pursuant to conviction under section 288, subdivision (b), and concluding jury's 

finding was supported by evidence that the appellant, purporting to act as a "curandero"

or healer, placed himself in a position of trust with his victims and traded on their fears 

that if they did not allow him to proceed with his "cure," they would remain ill or face 

imminent death].)

Here, in contrast to People v. French, supra, 43 Cal.4th 36, the evidence 

establishes that Herrera did in fact care for the children while his wife was not present, 

drove them to and from school, walked with them to the park once or twice a week, and 
10

at time disciplined them.2 The trial court reasonably concluded these were circumstances 

where Herrera was necessarily supervising the children, entrusted with their care and 

safety, and in a position of trust and authority with regard to then four-year-old Valeria, 

regardless of whether other children regarded him as an authority figure or heeded his 

instruction. 

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

 

2 When asked whether Herrera was "sort of the disciplinarian around there . . . " 

Mrs. Herrera testified, "Most of the time, it was me. . . . But whenever Hector wanted to 

discipline them, they would say bad words to him, and I would be hearing and watching 

them."