Filed 3/27/15 P. v. Tejeda CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN GERARDO TEJEDA

, Defendant and Appellant. G050029

(Super. Ct. No. 12CF0066 )

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard
M. King , Judge. Affirmed.

Jeffrey S. Kross , under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland , Assistant Attorney
General, Randall D. Einhorn and Martin E. Doyle , Deputy Attorneys General, for
Plaintiff and Respondent.

* * *2 A jury convicted defendant Juan Gerardo Tejeda

, a transgendered female,

of committ in g a lewd and lascivious act upon Jose M., who was 14 years old on the date

of the sexual offense

. (Pen. Code, § 288, subd

. (c)(1) ; count 3.) 1 On appeal d efendant

contends there is insufficient evidence to support the lewd conduct conviction and the

conviction should be reduced to the lesser offense of attempt ed lewd conduct

. We find

substantial evidence supports d efendant ’ s conviction and therefore affirm the judgment.

FACTS

On December 20, 2011, d efendant was 30 years old and liv ed in an
apartment across the street from a church parking lot. That afternoon, six teenage boys,
including 14

- year

- old Jose M., were skateboarding in the parking lot

. While Jose M. and

the other bo ys were skateboarding, they saw d efendant standing on her balcony across the

street.

Defendant motioned with her hand toward the boys in a way that suggested
she wanted them to do a trick with their skateboards. Jose M. thought d efendant wanted
one of them to ride their skateboard down the church stairs, which is a trick called an

“ ollie. ”

Some of the boys told another boy, Bryan T., to “ show his private part ” to

d efendant if he completed the skateboard trick. Bryan T. landed the trick and flashed his

1 All statutory references are to the Penal Code.

Defendant challenges only her conviction on count 3. The jury also convicted h e r of committing sexual offenses against five other boys , consisting of two counts of lewd acts on a child under age 14, two counts of oral copulation on a child under age 16, a nd two count s of attempted oral copulation on a child under age 16

. The jury also found she engaged in substantial sexual conduct in the two counts of lewd acts on a child under age 14, within the meaning of section 1203.066, subdivision (a)(8). The court sentenced defendant to an aggreg ate 10

- year state prison term.3

penis to d efendant. After he did this, d efendant exposed her breasts to the boys

. 2

Defendant t hen made a hand gesture to the boys , which they interpreted as an invitation
to come up to her apartment.

Two of the boys we nt up to the apartment first, while the remaining four
boys waited at a neighboring store. Shortly after

, one of the boys in the apartment yelled

out the window that “ someone was in the room with the lady ” “ getting head. ” After
hearing this, two more boys w ent up to defendant ’ s apartment, followed by Jose M. and
the remaining boy a few minutes later.

When Jose M. entered the apartment, he wait ed in the living room while

most of the other boys took turns going into the bedroom with d efendant. At so me point,
Jose M. opened the closed door to the bedroom to retrieve his skateboard and because he

was curious about what was happening inside the room. When he walked in the room, he
saw one of the boys sitting on the bed, and d efendant on her knees in fr ont of the boy,
orally copulating him. Jose M. then left the bedroom and returned to the living room.

While Jose M. was in the living room, at some point, de fendant returned to
the living room and tried to touch Jose M. ’ s “ private part. ” Defendant touched Jose M

. ’ s pants near his penis. To keep d efendant from touching his “ private part

, ” Jose M. cupped
his hands over his pant s in the region near his penis. D efendant touched Jose M. ’ s hand
while it was covering the boy ’ s penis, but she did not touch the front of his pants. Jose

M. did not want d efendant to touch his penis or to g iv e him a “ blow job ” because he “ saw

her face ” and had doubts as to whether d efendant was a woman.

Jose M. and the other boys were in d ef endant’s apartment for about 40

minute s to an hour. While they were in the living room

, d efendant exposed her breasts
by taking off her top or lifting it up

. Jose M. saw m ost of the other boys touch

2 There is conflicting evidence on whether d efendant exposed her breast before or after Bryan T. showed his peni s to d efendant and why Bryan T. decided to show his penis in the first place.4

d efendant ’ s exposed breast s

. Jose M. also touched d efendant ’ s breast s with his hand

while d efendant exposed them in the living room

.

Jose M. and the other boys eventually left the apartment. After they left,

t he six boys agreed to keep what happened in the apartment a secret. Jose M. did not tell
any adults what occurr ed until he was contacted by the police.

DISCUSSION

Substantial Evidence S upp o rt s Defendant ’ s Conviction of Committing a Lewd Act on Jose M.

Defendant contends h er conviction for committ ing a lewd act on 14

- year

old Jose M. ( § 288, subd. (c)(1)) should be reduced to the lesser offense of an attempted

lewd act because the evidence is insufficient to show she completed t h e offense

. Defendant ’ s argument essentially concedes the evidence is sufficient to show she
harbored the specific intent to commit the crime.

Under se ction 288

, subdivision (a), a pers on who “ willfully and lewdly
commits any lewd or lascivious act

. . . upon or with the body, or any part or mem ber
thereof, of a child [ under age 14 ,] with the intent of arousing, appealing to, or gratifying
the lust, passions, or sexual desires of that person or the child

, is guilty of a felony

. ”

Under section 288, subdivision (c)(1)

— the subdivision under which defendant was

convicted

— a “ person who commits an act described in subdivision (a) with the intent
described in that subdivision, and the victim is a child of 14 or 15 years, and that person
is at least 10 years older than t he child ” i s guilty of a felony or a misdemeanor. Thus, by
its terms, section 288 requires both a touching and a specific intent to sexually arouse,
appeal to, or gratify the perpetrator or the child.

“ O ur review of any claim of insufficiency of the evidence is limited. ‘ In
assessing the sufficiency of the evidence, we review the entire record in the light most5

favorable to the judgment to determine whether it discloses evidence that is reasonable,

credi ble, and of solid value such that a reasonable trier of fact could find the d efendant
guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted
unless it appears “ that upon no hypothesis whatever is there sufficient substantia l
evidence to support [the conviction]. ” ’” ( People v. Veale (2008) 160 Cal.App.4th 40,

45

. ) “ Given this court ’ s limited role on appeal, defendant bears an enormous burden in
claiming there is insufficient evidence to sustain his molestation convictions. ” ( Id. at

p. 46.)
Here, two separate acts of touching occu r red with r e spect to Jose M . First,

defendant touch ed Jose M. ’ s hands and pants as the bo y covered his genital area

. Seco nd

, Jose M. touch ed defendant ’ s exposed breast.

As to defendant ’ s touching of Jose M., d efendant argues she did not
complete a lewd act, because Jose M. ’ s hands prevented her from actually touching the
boy ’ s penis. Not so. A lewd act can involve “ any part ” of the victim ’ s body, and the
touching can occur through the v ictim ’ s clothing. ( People v. Martinez (1995) 11 Cal.4th
434, 4 44 ; § 288 .) The actual touching of a sexual organ is not required. ( People v. Raley
(1992) 2 Cal. 4th 870, 907 .)

As to Jose M. ’ s touching of d efendant ’ s breast , defendant argues she did
not engage in the touching; rather, Jose M. touched her. But t he touching necessary to

violate section 288 “‘ may be done by the child victim on its own person [or someone

else ’ s person] providing such touching was at the instigation of a person who had th e required specific intent. ’” ( People v. Imler (1992) 9 Cal.App.4th 1178, 1182; People v. Lopez (2010) 185 Cal.App.4th 1220, 1230 [defendant directed victims to remove their

cloth es and change into provocative clothing ].) Defendant argues Jose M. touched her
breast without any instigation or prompting. Not so. D efendant expos ed her breasts to

Jose M

. and the other boys in the living room. She let the other boys touch her breasts in

front of Jose M. This instigated or p rompted Jose M. to touch t he m t o o

.6 Substantial evidence supports the jury ’ s findings both actions were
completed and violated section 288.

DISPOSITION

T he judgment is affirmed

.

IKOLA, J.

WE CONCUR:

MOORE, ACTING P. J.

THOMPSON, J.