Filed 12/23/20 P. v. Pineda CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This 

opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDROS ROJAS PINEDA,

Defendant and Appellant.

B300928

Los Angeles County

Super. Ct. No. KA116196

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Juan Carlos Dominguez, Judge. Affirmed.

Stephen Temko, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Roberta L. Davis and William H. 

Shin, Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Appellant and defendant Pedro Rojas Pineda was convicted 

of sexual intercourse with a child ten years old or younger, sexual 

penetration of a child ten years old or younger, and indecent 

exposure with a prior such conviction. The child was his 

daughter. He was sentenced to a term of 40 years to life in state 

prison. 

On appeal, Pineda argues: (1) the evidence was insufficient 

to support his sexual intercourse and penetration convictions; (2) 

the trial court erred by admitting testimony regarding his 

daughter’s report of abuse to her friend; and (3) the trial court 

erred by imposing separate punishments for his sexual 

intercourse and penetration convictions. Because his arguments 

are meritless, we affirm. 

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an 

information charging Pineda with sexual intercourse or sodomy 

with a child ten years old or younger (Pen. Code, § 288.7, subd. 

(a);1 count one), oral copulation or sexual penetration of a child 

ten years old or younger (§ 288.7, subd. (b); count two), and 

indecent exposure with a prior such conviction (§ 314, subd. (1); 

counts three, four, and five). 

In bifurcated proceedings, Pineda waived his right to a jury 

trial regarding his prior indecent exposure conviction and 

1 All undesignated statutory references are to the Penal 

Code.
3

requested a bench trial on the issue. The trial court found Pineda 

sustained such a conviction in May 2015. The jury found Pineda 

guilty on all counts except count three, on which it was unable to 

reach a verdict. Thereafter, the trial court granted the People’s 

motion to dismiss count three. 

The trial court sentenced Pineda to 40 years to life in state 

prison, consisting of a term of 25 years to life on count one and a

term of 15 years to life on count two. The trial court also 

sentenced Pineda to two two-year middle terms on counts four 

and five, both of which were to run concurrently with his prison 

terms on counts one and two. The court further ordered Pineda to 

pay a $300 restitution fine. The court also imposed various other 

fines and fees but either waived or stayed payment. 

Pineda appealed. 

FACTUAL BACKGROUND

Pineda’s daughter, who for privacy purposes we will refer 

to by the fictitious name of “Jane,” was born on January 15, 2007. 

In 2017, Jane lived in a two-bedroom apartment located in El 

Monte with Pineda, her mother, her uncle, and her four brothers. 

On September 3, 2017, Jane was playing with the 

neighbor’s children, two sisters who for privacy purposes we will 

refer to as “J” and “A.” While playing with J and A, Jane saw 

Pineda take his penis out of his pants and show it to J and A. At 

that point, the girls left and told J and A’s mother what had 

happened. 

Seeing Pineda expose himself to her friends also prompted 

Jane to tell their mother that Pineda had been touching her 

inappropriately. Later that evening, J and A’s mother told Jane’s 
4

mother what Jane had told her. At that point, Jane’s mother and 

the neighbor girls’ mother decided to take Jane to the doctor. 

Following a visit to the doctor that evening, they went to the 

police. 

At the police station, Jane spoke to El Monte Police 

Department Officer Chris Frey. She told Officer Frey that Pineda 

sexually molested her four times in the past two weeks, and that 

he last touched her two days before. In describing the most recent 

incident of inappropriate touching, Jane stated she was asleep 

when she “woke up and noticed that [Pineda] had his hands down 

her underwear and . . . had inserted one or two fingers into her 

vagina.” 

Pineda was arrested at his sister’s apartment in the early 

morning hours of September 4, 2017. 

Following Pineda’s arrest, Detective Jacob Burse spoke 

with Jane. Jane related Pineda sexually molested her on multiple 

occasions by digitally penetrating her vagina and inserting his 

penis into her vagina. 

DISCUSSION

I. Sufficiency of the Evidence 

Pineda contends his convictions on counts one and two are 

unsupported by substantial evidence. Specifically, he argues the 

prosecution failed to prove the offenses occurred in the timeframe 

alleged in the information, i.e., on or between August 13 and 

September 1, 2017. The Attorney General responds the 

prosecution was only required to prove Pineda committed the 

offenses within the applicable ten-year limitations period, as time 

is not a “material ingredient” of those crimes. (See People v. 
5

Garcia (2016) 247 Cal.App.4th 1013, 1022 (Garcia).) The 

Attorney General therefore contends that because the evidence 

demonstrates Pineda used his penis and fingers to penetrate 

Jane’s vagina sometime between late 2016 and September 2017, 

his convictions on counts one and two are supported by 

substantial evidence. We agree with the Attorney General and 

reject Pineda’s substantial evidence challenge. 

Section 288.7, subdivision (a) provides: “Any person 18 

years of age or older who engages in sexual intercourse . . . with a 

child who is 10 years of age or younger is guilty of a felony[.]” 

Section 288.7, subdivision (b) provides: “Any person 18 years of 

age or older who engages in . . . sexual penetration, as defined in 

Section 289, with a child who is 10 years of age or younger is 

guilty of a felony[.]” Per section 289, subdivision (k)(1), “‘[s]exual 

penetration’ is the act of causing the penetration, however slight, 

of the genital . . . opening of any person . . . by any foreign object, 

substance, instrument, or device, or by any unknown object.” 

In People v. Jones (1990) 51 Cal.3d 294 (Jones), our 

Supreme Court set forth the “minimum quantum of proof 

necessary to support a conviction” for crimes involving sexual 

abuse of a child. (Id. at p. 314.) The Court stated: “The victim, of 

course, must describe the kind of act or acts committed with 

sufficient specificity, both to assure that unlawful conduct indeed 

has occurred and to differentiate between the various types of 

proscribed conduct (e.g., lewd conduct, intercourse, oral 

copulation or sodomy). Moreover, the victim must describe the 

number of acts committed with sufficient certainty to support 

each of the counts alleged in the information or indictment (e.g., 

‘twice a month’ or ‘every time we went camping’). Finally, the 

victim must also be able to describe the general time period in 
6

which these acts occurred (e.g., ‘the summer before my fourth 

grade,’ or ‘during each Sunday morning after he came to live with 

us’), to assure the acts were committed within the applicable 

limitation period. Additional details regarding the time, place or 

circumstance of the various assaults may assist in assessing the 

credibility or substantiality of the victim’s testimony, but are not 

essential to sustain a conviction.” (Id. at p. 316.) 

“In reviewing a sufficiency of evidence claim, the reviewing 

court’s role is a limited one. ‘“The proper test for determining a 

claim of insufficiency of evidence in a criminal case is whether, on 

the entire record, a rational trier of fact could find the defendant 

guilty beyond a reasonable doubt. [Citations.] On appeal, we 

must view the evidence in the light most favorable to the People 

and must presume in support of the judgment the existence of 

every fact the trier could reasonably deduce from the evidence. 

[Citation.]”’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 

738-739.)

Applying these principles, we conclude substantial evidence 

supports the jury’s finding that Pineda was guilty of sexual 

intercourse with and sexual penetration of a child ten years of 

age or younger. Jane testified Pineda first touched her 

inappropriately when she “was nine, and . . . about to turn 10.” 

He also touched her sexually after she turned ten years old. 

Further, Jane told Officer Frey that Pineda sexually molested her 

four times in the two weeks leading up to her interview on 

September 3, 2017, and that he inserted his fingers into her 

vagina two days before. 

Jane testified that she slept on the floor in the same room 

with her mother, father, and four brothers. At night, while Jane’s 

mother was at work and her brothers were asleep, Pineda would 
7

grab her by the ankles while she was lying on the ground, pull 

her to his side, and insert his fingers or his penis into her vagina, 

causing her pain. She testified Pineda inserted his penis in her 

vagina more than two times, but did not know whether there 

were more than five incidents. Her testimony made it clear 

Pineda touched her with his fingers more than once, but she did 

not recall how many times this took place. Jane described in 

detail how Pineda would touch her inappropriately with his 

fingers and penis. 

On this record, we conclude the evidence adequately set 

forth the kind of acts committed (sexual intercourse and digital 

penetration), the number of acts committed to support each of the 

counts alleged (intercourse more than twice, digital penetration 

at least once), and the general time period in which the acts 

occurred (shortly before Jane’s tenth birthday and continuing 

thereafter until she spoke with Officer Frey). Therefore, under 

Jones, Pineda’s convictions on counts one and two are supported 

by substantial evidence. (Jones, supra, 51 Cal.3d at p. 316.) 

As noted above, the crux of Pineda’s sufficiency argument is 

the prosecution was required to prove the offenses occurred “on or 

between August 13, 2017 and September 1, 2017” as alleged in 

the information. At the outset, we note Pineda’s argument is 

unavailing with respect to his conviction on count two because, as 

noted above, the evidence demonstrates he digitally penetrated 

Jane’s vagina on September 1, 2017, two days before her 

interview with Officer Frey.

In any event, as the Attorney General correctly points out, 

the prosecution was not required to prove either of the crimes 

occurred in the timeframe alleged in the information. “‘The law is 

clear that, when it is charged that an offense was committed “on 
8

or about” a named date, the exact date need not be proved unless 

the time “is a material ingredient in the offense” [citation], and 

the evidence is not insufficient merely because it shows that the 

offense was committed on another date.’ [Citations].” (Garcia, 

supra, 247 Cal.App.4th at p. 1022.) 

We are not persuaded by Pineda’s argument that Garcia 

does not apply here because the information alleged the crimes 

occurred “on or between” two dates instead of “on or about” a 

certain date. Contrary to Pineda’s argument, even where the 

information alleges an offense took place on a certain date, rather 

than “on or about” that date, the prosecution is not required to 

prove the crime was committed on the specified date unless time 

is a material ingredient to the offense. 

For example, in People v. Amy (1950) 100 Cal.App.2d 126 

(Amy), the defendant was charged with two counts of violating 

section 288. (Id. at p. 126.) The information alleged count one was 

committed on June 20, 1949, and count two was committed on 

December 23, 1949. (Id. at p. 127.) At trial, the victim testified 

the first act occurred while she was on summer vacation in 1949, 

and the second act occurred on a day when her mother went to 

the beauty shop a week or two before Christmas. (Ibid.) The 

defendant was found guilty on both counts. (Id. at p. 126.) On 

appeal, the defendant argued his convictions should be 

overturned because “‘there was a failure to prove a specific act on 

a specified date as charged.’” (Id. at p. 127.) 

The Court of Appeal rejected the defendant’s argument. 

(Amy, supra, 100 Cal.App.2d at pp. 127-128.) In so doing, the 

court observed “[t[he burden was on the [P]eople to prove that the 

offenses occurred within the period of limitation but they are not 

required to prove the date with exactness. [Citation.]” (Id. at p. 
9

127.) The court further noted that a variance between the 

pleading and the proof should be disregarded “unless time is of 

the essence of the offense,” and a challenge to such a variance 

cannot be made for the first time on appeal unless the defendant 

shows he was prejudiced thereby. (Id. at pp. 127-128.) Thus, the 

court affirmed the convictions, reasoning: (1) the prosecution 

proved the offenses were committed within the applicable 

limitations period; (2) the defendant did not indicate he was 

misled in making his defense; (3) the defendant did not attempt 

to prove he had an alibi on either of the dates alleged; and (4) the 

defendant was not in danger of double jeopardy. (Id. at p. 128.) 

Here, as in Amy, the prosecution proved Pineda committed 

the crimes of sexual intercourse with and sexual penetration of a 

minor ten years or younger within the applicable ten-year 

limitations period. (§ 801.1, subd. (b).) Neither crime requires the 

wrongful act occur in a certain timeframe. (See § 288.7, subds. (a) 

& (b); cf. § 288.5, subd. (a) [a person “is guilty of the offense of 

continuous sexual abuse of a child” if he, “over a period of time, 

not less than three months in duration, engages in three or more 

acts of substantial sexual conduct with a child under the age of 

14 years”].) Nor did Pineda attempt to prove an alibi. Therefore, 

time was not essential to either of the offenses at issue. (People v. 

Obremski (1989) 207 Cal.App.3d 1346, 1354 [“Time is essential if 

the defense is alibi. [Citation.]”].) Additionally, at trial, Pineda 

did not object to any variance between the information and the 

evidence. On appeal, he has not argued or otherwise shown he 

was prejudiced thereby. 

Accordingly, for the reasons discussed above, we conclude 

Pineda’s substantial evidence challenge is without merit. 
10

II. Admissibility of A’s Testimony Regarding Jane’s 

Report of Abuse to Her 

At trial, the prosecution sought to elicit testimony from A 

regarding whether Jane told her about Pineda’s inappropriate 

conduct. Defense counsel objected on hearsay grounds. The 

prosecution responded the testimony was admissible under the 

fresh complaint doctrine. After discussing the issue with counsel 

in chambers, the court allowed the prosecution to lay a 

foundation on when, specifically, Jane told A about the abuse. 

Thereafter, the trial court overruled defense counsel’s hearsay 

objection, and A testified: “[Jane] told me . . . when she would 

sleep, . . . her father would touch her.” 

Pineda contends the trial court erred by admitting A’s 

testimony concerning Jane’s report of abuse to her because: (1) 

the testimony fell outside the scope of the fresh complaint 

doctrine; and (2) the testimony was inadmissible under Evidence 

Code section 352. 

“A trial court’s exercise of discretion in admitting or 

excluding evidence is reviewable for abuse [citation] and will not 

be disturbed except on a showing the trial court exercised its 

discretion in an arbitrary, capricious, or patently absurd manner 

that resulted in a manifest miscarriage of justice [citation].” 

(People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) We address each 

of Pineda’s arguments in turn below. 

1. Admissibility Under Fresh Complaint Doctrine 

In People v. Brown (1994) 8 Cal.4th 746 (Brown), our 

Supreme Court defined the modern view of the fresh complaint 

doctrine as follows: “[U]nder principles generally applicable to 

the determination of evidentiary relevance and admissibility, 
11

proof of an extrajudicial complaint, made by the victim of a 

sexual offense, disclosing the alleged assault, may be admissible 

for a limited, nonhearsay purpose—namely, to establish the fact 

of, and the circumstances surrounding, the victim’s disclosure of 

the assault to others—whenever the fact that the disclosure was 

made and the circumstances under which it was made are 

relevant to the trier of fact’s determination as to whether the 

offense occurred. Under such generally applicable evidentiary 

rules, the timing of a complaint (e.g., whether it was made 

promptly after the incident or, rather, at a later date) and the 

circumstances under which it was made (e.g., whether it was 

volunteered spontaneously or, instead, was made only in 

response to the inquiry of another person) are not necessarily 

determinative of the admissibility of evidence of the complaint.” 

(Id. at pp. 749-750, italics omitted.) 

Moreover, the Court stated that to be admissible under the 

fresh complaint doctrine, “[e]vidence of the victim’s report or 

disclosure of the alleged offense should be limited to the fact of 

the making of the complaint and other circumstances material to 

[the] limited [nonhearsay] purpose [of its admission].” (Brown, 

supra, 8 Cal.4th at p. 763.) The “‘fact of complaint’ [does] not 

include details of the incident, but [does] include evidence 

demonstrating the complaint ‘“related to the matter being 

inquired into, and [was] not a complaint wholly foreign to the 

subject . . . .”’ [Citation.]” (Id. at p. 756, italics omitted, quoting 

People v. Burton (1961) 55 Cal.2d 328, 351 (Burton).) 

Consequently, “the alleged victim’s statement of the nature of the 

offense and the identity of the asserted offender, without details, 

is proper. [Citations.]” (Burton, supra, 55 Cal.2d at pp. 351-352, 

italics omitted.) 
12

Pineda contends A’s testimony regarding Jane’s report of 

abuse fell outside the scope of the fresh complaint doctrine 

because the testimony impermissibly set forth the “details of 

what statements were made.” We disagree. 

Here, A’s testimony was limited to Jane’s statement of the 

asserted offender’s identity (her father) and the nature of the 

offense (inappropriate touching). Therefore, A’s testimony 

properly illustrated Jane’s complaint related to the crimes 

alleged. (Burton, supra, 55 Cal.2d at pp. 351-352.) No testimony 

was admitted regarding Jane’s report of the specific details 

pertaining to Pineda’s wrongful conduct. Indeed, when asked 

whether Jane gave A any other details, A testified she did not 

remember. 

We reject Pineda’s contention that Brown completely 

overruled all prior cases applying the fresh complaint doctrine, 

such as Burton. In Brown, our Supreme Court only disapproved 

earlier fresh complaint cases to the extent they: (1) supported 

“the original premise and rationale underlying the freshcomplaint doctrine,” i.e., “that it is natural for the victim of a 

sexual assault to complain promptly following the assault”; and 

(2) held that, to qualify as a fresh complaint, the report must 

have been made within a short time following the incident in 

question and not in response to questioning. (Brown, supra, 8 

Cal.4th at pp. 749, 758-760, 762-763.) Of relevance to our 

analysis in this case, the Court did not overrule Burton’s holding 

that “although details cannot be recounted, it can be shown by 

the People ‘that the complaint related to the matter being 

inquired into, and was not a complaint wholly foreign to the 

subject’ [citation]; that is, the alleged victim’s statement of the 

nature of the offense and the identity of the asserted offender, 
13

without details, is proper. [Citations.]” (Burton, supra, 55 Cal.2d 

at p. 351, italics omitted; see Brown, supra, 8 Cal.4th at pp. 756, 

759-763.) 

Accordingly, for the reasons discussed above, we conclude 

the trial court did not abuse its discretion by finding A’s 

testimony concerning Jane’s report of abuse to her fell within the 

fresh complaint doctrine.2

2. Admissibility Under Evidence Code Section 352 

Evidence Code section 352 provides: “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.” “‘“Prejudice” in the context of Evidence 

Code section 352 refers to the possibility of misuse of the 

evidence—use of the evidence by the trier of fact for a purpose for 

which the evidence is not properly admissible.’ [Citation.]” 

(People v. Jiminez (2019) 35 Cal.App.5th 373, 390.) 

Pineda contends A’s testimony concerning Jane’s report of 

abuse was inadmissible under Evidence Code section 352. 

Specifically, he suggests the testimony’s probative value was 

substantially outweighed by the risk of undue prejudice because 

2 Pineda correctly observes the trial court did not instruct 

the jury that A’s testimony was to be considered only for the 

limited, nonhearsay purpose of establishing the fact of, and the 

circumstances surrounding, Jane’s disclosure of Pineda’s sexual 

assault to her. The trial court, however, was not required to give 

such an instruction, as defense counsel did not request it to do so. 

(People v. Manning (2008) 165 Cal.App.4th 870, 880.) 
14

Jane “had already testified that she had relayed complaints 

about [Pineda’s] alleged misconduct to other people, including 

[A’s] mother.” We do not agree with Pineda’s argument. 

At the outset, we note defense counsel did not object to A’s 

testimony regarding Jane’s report of abuse to her on Evidence 

Code section 352 grounds at trial. Consequently, Pineda’s 

argument on the issue has been forfeited. (People v. Williams 

(1997) 16 Cal.4th 153, 206.) 

In any event, even if a specific and timely objection had 

been made, and Pineda had not forfeited this argument, we 

discern no error. As noted above, Jane testified in detail about 

Pineda’s sexual abuse. A’s testimony regarding Jane’s report of 

abuse was therefore probative of Jane’s credibility. (See People v. 

Ramirez (2006) 143 Cal.App.4th 1512, 1522.) Moreover, A’s 

testimony on the matter consisted of a single sentence and did 

not include any details. Under these circumstances, it would have 

been well within the trial court’s discretion to find the probative 

value of A’s testimony was not substantially outweighed by the 

risk of undue prejudice.

3. Prejudice

Even assuming, arguendo, the trial court erred by 

admitting A’s testimony concerning Jane’s report of abuse, we 

would find no prejudice under Chapman v. Cal. (1967) 386 U.S. 

18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman) or People v. 

Watson (1956) 46 Cal.2d 818, 836-838 (Watson). Here, the 

evidence of Pineda’s guilt was overwhelming. Again, as discussed 

above, Jane testified in substantial detail about Pineda’s crimes. 

The evidence also established Jane reported Pineda’s 

inappropriate touching to the neighbor girls’ mother, Officer 
15

Frey, and Detective Burse. Under these circumstances, the 

asserted error would have been harmless beyond a reasonable 

doubt, and it is not reasonably probable that the trial court’s 

exclusion of A’s brief testimony regarding Jane’s report of abuse 

to her would have resulted in a more favorable outcome for 

Pineda. (See Chapman, supra, 386 U.S. at p. 24; Watson, supra, 

46 Cal.2d at pp. 835-836.)3

III. Separate Punishments on Counts One and Two 

Pineda contends the trial court should have stayed his 

sentence on count two based on section 654. Specifically, he 

argues the evidence demonstrates “the incidences of digital 

penetration preceded, or were immediately followed by, 

intercourse.” Therefore, Pineda argues, his “intent in digitally 

penetrating [Jane] on each occasion was merely incidental to his 

objective in penetrating her with his penis.” The Attorney 

General responds substantial evidence supports the trial court’s 

finding that section 654 does not apply, as the court could have 

reasonably concluded “the digital penetration was accomplished 

for the purpose of [Pineda’s] own arousal, and not to facilitate any 

other form of sexual contact.” We agree with the Attorney 

General. 

3 Pineda also contends the trial court violated his federal 

constitutional rights to due process and fair trial by admitting A’s 

testimony about Jane’s report of abuse to her. As the Attorney 

General correctly points out, however, Pineda has forfeited his 

constitutional claims because he did not raise any objection on 

those grounds below. (People v. Riggs (2008) 44 Cal.4th 248, 304.) 

In any event, Pineda’s claim is meritless because the trial court 

did not err by admitting the testimony at issue. (Ibid.)
16

Section 654, subdivision (a) provides: “An act or omission 

that is punishable in different ways by different provisions of law 

shall be punished under the provision that provides for the 

longest potential term of imprisonment, but in no case shall the 

act or omission be punished under more than one provision.” 

Section 654 “‘applies when there is a course of conduct 

which violates more than one statute but constitutes an 

indivisible transaction.’ [Citation.] Generally, whether a course of 

conduct is a divisible transaction depends on the intent and 

objective of the actor: ‘If all of the offenses were incident to one 

objective, the defendant may be punished for any one of such 

offenses but not for more than one.’ [Citation.]” (People v. Alvarez 

(2009) 178 Cal.App.4th 999, 1006 (Alvarez).) 

“However, the rule is different in sex crime cases. Even 

where the defendant has but one objective—sexual gratification—

section 654 will not apply unless the crimes were either 

incidental to or the means by which another crime was 

accomplished. [Citations.] [¶] But, section 654 does not apply to 

sexual misconduct that is ‘preparatory’ in the general sense that 

it is designed to sexually arouse the perpetrator or the victim. 

[Citation.]” (Alvarez, supra, 178 Cal.App.4th at p. 1006.) 

“Whether section 654 applies in a given case is a question 

of fact for the trial court, which is vested with broad latitude in 

making its determination. [Citations.] Its findings will not be 

reversed on appeal if there is any substantial evidence to support 

them. [Citations.] We review the trial court’s determination in 

the light most favorable to the respondent and presume the 

existence of every fact the trial court could reasonably deduce 

from the evidence. [Citation.]” (People v. Jones (2002) 103 

Cal.App.4th 1139, 1143.) 
17

Applying the principles above, we conclude substantial 

evidence supports the trial court’s finding that section 654 does 

not apply in this case. Jane testified that sometimes Pineda 

touched her vagina with both his penis and fingers on the same 

day, but other times he would use only one of those body parts to 

touch her on a single day. Based on this testimony, the trial court 

could reasonably conclude Pineda performed each act of digital 

penetration and sexual intercourse for purposes of accomplishing 

his own sexual arousal. Moreover, even assuming any instance of 

sexual intercourse was immediately preceded by digital 

penetration as Pineda contends, the trial court could nevertheless 

conclude the earlier acts were not “merely incidental to or 

facilitative of the later acts[,]” because sexual intercourse may be 

accomplished without digital penetration. (People v. Madera 

(1991) 231 Cal.App.3d 845, 855; Alvarez, supra, 178 Cal.App.4th 

at pp. 1006-1007.)

Accordingly, the trial court did not err by imposing 

separate punishments for counts one and two. 
18

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J. 

We concur: 

MANELLA, P.J. 

WILLHITE, J.