Filed 12/17/13 P. v. Flores 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DANIEL VLAS FLORES, Defendant and Appellant. G047137
(Super. Ct. No. 09WF1803)

O P I N I O N

Appeal from a judgment of the Su perior Court of Orange County, Lance Jensen, Judge. Affirmed. Carl Fabian, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistan t Attorney General, Charles C. Ragland and Kimberley A. Donohue, Deputy Attorneys Ge neral, for Plaintiff and Respondent.
* * *2 I NTRODUCTION Defendant Daniel Vlas Flores was c onvicted of kidnapping and sexually abusing a seven-year-old girl who suffers from developmen tal delays. Defendant was
sentenced to a total term of 65 years to life, with the possibility of parole. He raises two arguments on appeal; we reject both, and therefore affirm the judgment. First, defendant contends there was insufficient evidence to support his conviction for digital penetration. To th e contrary, substantia l evidence supports the
conviction. Second, defendant argues the trial c ourt erred in imposing his sentences consecutively. We conclude the impositi on of consecutive sentences was amply supported by the record and by th e court’s explanation of reasons.

S TATEMENT OF F ACTS In August 2009, M.L. was seven y ears old. She had developmental disabilities and language problems that made it difficult for her to communicate. One afternoon, M.L. was playing with A.B. (w ho was M.L.’s friend), A.B.’s brother, and A.B.’s male cousin in the backyard of th eir apartment complex. A.B., who was eight years old at that time, is defendant’s niece. Defendant, who also lived in the apartment complex, entered the yard and asked the child ren for help moving some shelves. A.B.
told defendant to take one of the boys with him, because A.B.’s mother had told her “never play with [her] uncle when he’s drunk.” But defendant insisted that M.L. help
him because she was “fatter.” Defendant grabbed M.L. by the wrist a nd took her out of the yard, despite her attempts to pull away. After continuing to play in the yard for a while, A.B. decided to see what defendant and M.L. were doing . She and the boys went to defendant’s apartment; the living room was empty, and the bedroom door was locked. The children3 went back outside, and A.B.’s brother and cousin used a stick to open a window in defendant’s apartment. After entering the room, A.B. saw M.L. sitting in the bedroom closet with her pants down. Defendant was standing near her, fully dressed. M.L. put on her pants, and ran crying out of de fendant’s apartment and to her ow n apartment, where she locked
herself in a bathroom. About five minutes later, after being encour aged by A.B., A.B.’s older sister, and an adult neighbor, M.L. came out of the bathroom and ran to her bedroom, still crying, where she hid under the bed. Paramedics were called, and a female ambulance driver found M.L. on a couch, with her face buried in the cushions, rocking aggressively back and forth. M.L. then hid under a pile of clothes in the closet , crying and clutching her mother’s picture. Eventually, the ambulance driver and an adult neighbor were able to take off M.L.’s pants to look for any sign of trauma or inju ry. M.L. was crying the entire time. The
ambulance driver saw blood and a “white cr eamy substance” on M.L.’s underwear, and blood in her vaginal area. The police were called and arrested defendant. During a sexual assault examination, the medical examiner discovered redness and lacerations in M.L.’s genital and anal regions. M.L. was bleeding in the genital and anal areas. The exam iner opined that the cause of M.L.’s injuries was “blunt penetrating force to the genital and anal area [s].” The examiner also opined that M.L.’s injuries would be consistent with penetration by a penis or a finger. Defendant’s semen was found in M.L.’s genital and anal regions . M.L.’s blood was found on defendant’s
hand. There was no blood on a ny part of M.L.’s body, othe r than her genital and anal

areas. Defendant was charged with kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1) [count 1]), sexual intercourse with a child 10 years old or younger ( id. , § 288.7, subd. (a) [count 2]), sexual penetra tion of a child 10 y ears old or younger ( id. , § 288.7, subd. (b) [count 3]), and sodomy with a child 10 years old or younger ( id. ,4 § 288.7, subd. (a) [count 4]). The jury convic ted defendant on all counts. The trial court sentenced defendant to a total term of 65 year s to life, with the possi bility of parole. The trial court imposed indeterminate sentences of 25 years to life, 15 years to life, and 25 years to life on counts 2, 3, and 4, respectiv ely. The court also imposed a consecutive term of seven years to life on count 1, but stay ed execution of that sentence pursuant to Penal Code section 654. Defendant timely appealed.

D ISCUSSION I.
S UFFICIENCY OF THE E VIDENCE Defendant argues there was insufficient evidence of digital penetration to support his conviction on count 3. 1 “When considering a challe nge to the sufficiency of the evidence to support a conviction, we re view the entire record in the light most favorable to the judgment to determine whet her it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable d oubt. [Citation.] . . . We presume in support of the judgme nt the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the ju dgment is not warranted simply because the circumstances might also reasona bly be reconciled with a cont rary finding. [Citation.] A reviewing court neither reweighs eviden ce nor reevaluates a witness’s credibility. [Citation.]” ( People v. Lindberg (2008) 45 Cal.4th 1, 27.) Penal Code section 288.7, subdivision (b), provides: “Any person 18 years of age or older who engages in . . . sexual pe netration, as defined in Section 289, with a

1 Defendant also contends, without a ny analysis, argument, or evidentiary citation, that his convictions under counts 1 and 2 were also unsupported by legally adequate evidence, and must be reversed. We reject defendant’s unsupported argument.5 child who is 10 years of age or younger is guilty of a felo ny and shall be punished by imprisonment in the state prison for a term of 15 years to life.” Pena l Code section 289, subdivision (k)(1) provides: “‘Sexual penetrati on’ is the act of causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.” Contact with the labia majora is sufficient to constitute penetration under section 2 88.7, subdivision (b). ( People v. Quintana (2001) 89 Cal.App.4th 1362, 1371.) Substantial evidence supported the jury ’s finding that defendant violated Penal Code section 288.7, subdivision (b), by digitally penetrating M.L. M.L.’s blood
was found on defendant’s hand. M.L. was bleed ing only in her genital and anal areas, not anywhere else on her body. The medical exam iner testified that M.L.’s injuries could have been caused by penetration by defend ant’s finger. Given the extent of M.L.’s injuries, which continued to bleed for hours after the attack, and which were visible and obvious, it would be reasonable for the jury to have inferred that penetration, by finger or penis, occurred more than once. Based on th at evidence, the jury could properly infer that defendant digitally penetrated M.L., either vaginally or anally. 2 Defendant suggests that M.L.’s blood could have been transferred to his
hand when he went to the bathroom. No ev idence exists in the re cord that defendant went to the bathroom at any time between assaulting M.L. and his arrest a short time later. (See People v. Story (2009) 45 Cal.4th 1282, 1299 [“ The Court of Appeal erred in focusing on evidence that did not exist rather than on th e evidence that did exist”].)

2 In his opening brief on appeal, defenda nt claims the prosecutor argued only that defendant digitally penetrated M.L.’s vagina. Defendant’s contention is not supported by defendant’s citation to the reporter’s tran script of closing argument at trial.6 The authorities on which defendan t relies are inapposite. In People v.
Moore (2011) 51 Cal.4th 386, 406, the Supreme Court held that the trial court abuses its discretion by admitting an expert’s testimony that “rests on an assumption without any support in the trial evidence.” In that case, the expert crim inalist was permitted to testify
that if it was assumed that a bloodstain in one room was deposited by a human being, that person would have been lying down or very close to th e floor at the time the blood was deposited. ( Id. at p. 405.) Because the expert c ould not determine how that bloodstain had been deposited, and there was no eviden ce it had been deposited by a person rather than an object, the expe rt’s testimony should ha ve been excluded. ( Ibid. ) The court also
determined the defendant ha d not been prejudiced by th e admission of the evidence; although the prosecution argued the bloodstai n showed the defendant had started the
attack on the victim in one room and then continued the attack in another, the actual evidence of a brutal, extended attack on a vulnerable vic tim made any appeal to the passion of the jury by the bloodstain evidence insignificant. ( Id. at pp. 406-407.) People v. Moore does not address the issue of what evidence is suffici ent to support a conviction under Penal Code s ection 288.7, subdivision (b).
In People v. Pearson (2012) 53 Cal.4th 306, 319, the Supreme Court reversed a finding that the defendant had personally used a deadly weapon in the
commission of the sex crimes because of a la ck of any evidence: “No witness testified defendant used the stake, no out-of-court statem ents to that effect were introduced, and no physical evidence indicated he had used it. The ev idence leaves it entirely possible defendant used the stake in attacking [the vic tim], but does not support a finding of such use beyond a reasonable doubt.” In this ca se, by contrast, there is sufficient actual evidence that defendant digitally penetrat ed M.L., and reversal is unwarranted.7 II.
C ONSECUTIVE T ERMS Defendant argues the trial court erre d by imposing consecutive sentences. 3 We review the trial court’s sentencing decision for abuse of discretion. ( People v.
Sandoval (2007) 41 Cal.4th 825, 847.) 4 In this case, the trial court stated on the record that it was imposing consecutive sentences based on the following se ntencing factors: California Rules of Court, rule 4.421(a)(1) (“The crime involved gr eat violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness”); id. , rule 4.421(a)(3) (“The victim wa s particularly vulnerable”); id. , rule 4.421(a)(8) (“The manner in which the crime was carried out indicates planning, sophistication, or professiona lism”); and Penal Code secti on 1170.85, subdivision (b) (“Upon conviction of any felony it sha ll be considered a circumstance in aggravation . . . if the victim of an offense is particularly vul nerable, or unable to defend himself or herself, due to ag e or significant disability”).

3 Defendant failed to raise this issue in the trial court, and we could refuse to reach the merits because they have been forfeited. ( People v. Scott (1994) 9 Cal.4th 331, 353, 356.) We will nevertheless address the issue on the merits to avoid the inevitable claim of ineffective assistance of counsel. 4 The opening brief on appeal includes the following statement: “The judge prefaced his statement of se ntencing reasons by characteriz ing appellant’s crimes as ‘atrocities’ and likened appellant’s conduct to acts which occurred du ring World War II.” What the trial court actually said was quite different: “The court notes that as to [California Rules of Court, rule] 4.421(a)(1), yo ur acts, as described by the evidence this court heard and as described by [the deput y district attorney] and described by the probation report, amounted, as the probation officer indicated, to . . . crimes that were not only heinous, vicious, cruel and callous, but arose to such a level that they were accurately described by the probation officer as atrocities. [¶] You probably don’t know what an atrocity is. I’ve read enough, I’ve seen enough, my father was in World War II, society knows what an atrocity is. [¶] I can’t think of anyt hing worse that you can do to a child than what you did to this young lady.”8 Defendant complains that because the factors in aggravation relied on by the trial court to support the imposition of c onsecutive terms were all related to M.L.’s developmental delays, the statement of reas ons was defective. A single aggravating factor may be used to justify the im position of consecutive sentences. ( People v. Osband (1996) 13 Cal.4th 622, 728-729; People v. Leon (2010) 181 Cal.App.4th 452, 468-469.) Defendant “acknowledges the corr ectness of the trial court’s fi nding that [M.L.] met the
standard of a vulnerable victim within the me aning of [California Rules of Court,] rule 4.421(a)(3).” The testimony at trial supported this finding. Further, it is not correct that the court’s imposition of consecutive sentences was based solely on a single factor. In add ition to M.L.’s developm ental delays, the court relied on the heinous, vicious, cruel, and callous nature of the crime, in which defendant raped, sodomized, and digitally penetrated a child under 10 years of age, causing physical and emotional trauma and visible injuries th at are normally not found in cases such as this. (Cal. Rules of Court, rule 4.421(a)(1).) Further, the court relied on defendant’s planning, which involved concocting a ruse and separating M.L. from her playmates, based on her being “fatter” than the other children. ( Id. , rule 4.421(a)(8).)
Defendant also contends that th e trial court improperly failed to acknowledge the mitigating factor of de fendant’s lack of a criminal history. 5 Defendant acknowledges, as he must, that the trial cour t read and considered the probation report,
which addressed this m itigating factor. The court did not abuse its discretion in rejecting

5 Defendant also references his limite d cognitive functioning, history of being sexually abused, and abandonment by his pare nts at a young age. Defendant’s alleged sexual abuse and abandonment were men tioned by defendant du ring his probation interview, but beyond his statement to the probation officer, there is no evidence to support them. Defendant’s alleged lack of cognitive functioning is based only on the probation officer’s observation of defendant’s responses to questions asked during the interview, not on any te sting or expert evaluation. The probation report does not identify these as mitigating factors. Given the nature of the crimes and the exceptional vulnerability of the victim, it is not reasonably probable the trial court would have imposed a different sentence even if it had explicitly considered these factors.9 this mitigating factor, howeve r. The probation report makes clear that defendant had “no prior record of committing crimes in this country .” (Italics added.) Defendant had only
been in the United States for two years before molesting M.L. There was no record of whether defendant had any criminal history in Mexico during the first 26 years of his life,
so the lack of a criminal record in the United States was not as telling as it might
otherwise have been.
Defendant failed to estab lish any abuse of discreti on by the trial court in imposing consecutive sentences, base d on the record before it.

D ISPOSITION The judgment is affirmed.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.