Filed 3/18/14 P. v. Cornejo CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO AGUILAR CORNEJO,

Defendant and Appellant.

 B250148

 (Los Angeles County

 Super. Ct. No. LA069866)

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph 

Brandolino, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, and Allison 

H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Pedro Aguilar Cornejo was convicted, following a jury trial, of 

kidnapping to commit rape in violation of Penal Code section 2091, subdivision (b)(1), 

forcible rape in violation of section 261, subdivision (a)(2), sexual penetration by a 

foreign object in violation of section 289, subdivision (a)(1), sodomy by use of force in 

violation of section 286, subdivision (c)(2), and forcible oral copulation in violation of 

section 288a, subdivision (c)(2). The jury found true the allegations that appellant 

personally used a deadly or dangerous weapon in the commission of the crimes within the 

meaning of section 12022, subdivision (b)(1). For all sexual offenses, the jury found true 

the one strike allegations that appellant kidnapped the victim within the meaning of 

section 667.61, subdivisions (b) and (e)(1) (the “one strike” law) and the movement of 

the victim substantially increased the risk of harm inherent in the underlying offenses 

within the meaning of subdivisions (a), (d) and (d)(2). The jury also found true the one 

strike allegations that appellant committed the sex offenses during the commission of first 

degree burglary with the intent to commit rape within the meaning of section 667.61, 

subdivisions (a), (d), and (d)(4) and personally used a deadly or dangerous weapon in the 

commission of the sex offenses within the meaning of sections 667.61, subdivisions (b) 

and (e)(3), 12022.3, 12022.5 and 12022.53. The trial court sentenced appellant to a total 

term of 53 years to life in prison.

Appellant appeals from the judgment of conviction, contending there is 

insufficient evidence to support his conviction for penetration with a foreign object and 

also contending the true finding on the one strike burglary allegation must be reversed 

because the sex offenses did not occur during the commission of a burglary. We affirm 

the judgment of conviction.

Facts

Lorena F. spent Christmas Eve, 2000, at home in her apartment, wrapping 

presents, watching television, and waiting for a call from her boyfriend telling her that he 

 

1 All further statutory references are to the Penal Code unless otherwise specified.
3

was ready to be picked up. When the call came shortly after midnight, she unlocked her 

front door, then turned around to turn off or hang up the phone. Appellant entered the 

apartment, grabbed her from behind and put her in a chokehold, then put a knife to her 

throat and told her not to move. Appellant was wearing a home-made ski mask, which he 

did not remove during the course of his crimes. 

Appellant began moving Lorena toward her bedroom. She said that her boyfriend 

was coming and would be at the apartment very soon. Appellant replied, “Okay. Then 

that changes everything,” and “We have to go.” He forced Lorena out of the apartment 

and made her walk to a nearby vacant lot. During the walk, he repeatedly threatened to 

kill her.

Once in the vacant lot, appellant began his sexual assaults on Lorena. He forcibly 

raped her, forcibly sodomized her, forced her to orally copulate him, and sexually 

penetrated her with his fingers. Throughout the attack, appellant threatened to kill 

Lorena. Eventually, appellant said, “Well, I’ve finally decided to let you live.” He told 

her not to get up or move. Lorena remained on the ground even after she heard appellant 

leave the lot. 

Eventually, Lorena got up, found some of her clothing, dressed and went to nearby 

residences seeking help. A resident of an apartment complex called police for her. Los 

Angeles Police Sergeant Roy Guthrie responded to the call. He found Lorena curled up 

in a fetal position, crying. Sergeant Guthrie took Lorena to Northridge Medical Center.

At the medical center, forensic nurse Kathleen Adams conducted a sexual assault 

examination of Lorena. Nurse Adams asked Lorena a standard list of questions. In 

response, Lorena stated that her attacker had penetrated her vagina twice with his penis 

but she did not think his fingers penetrated her vagina. Nurse Adams observed that 

Lorena was disheveled and injured. She had debris in her hair, her clothing was dirty and 

torn and she had no shoes. There were numerous scratches on her body. A physical 

examination revealed debris in the vestibule between the labia and in the anal folds, and 

numerous lacerations in the same areas, including the most severe anal laceration the 
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nurse had seen in 17 years of such examinations. Nurse Adams took swab samples from 

Lorena as well.

In 2010, the DNA profile developed from Lorena’s vaginal swab samples resulted 

in a match in the Combined DNA Indexing System (CODIS). The match was to 

appellant, who was in state prison in Idaho for a 2001 conviction for committing lewd 

conduct with a female. 

Appellant was interviewed by Los Angeles Police Detective Gregory Stone. 

Appellant stated that from 1999 through Christmas 2000, he had lived with his father in a 

residence on Riverton in North Hollywood. The residence was next door to the 

apartment building where Lorena lived. After Christmas, appellant moved to Idaho. 

Appellant admitted raping a woman who lived on Riverton on Christmas Eve, and also 

admitted using a knife to force her to walk to the vacant lot where the rapes occurred. He 

denied that he had ever seen the woman before that night and claimed that it was just a 

coincidence that he was outside her door carrying a knife and wearing a ski mask when 

she opened the door.

Appellant introduced no evidence at trial apart from a drawing showing the 

portion of the swab used in the DNA analysis. 

Discussion

1. Sufficiency of the evidence –sexual penetration by a foreign object

Appellant contends there is insufficient evidence of penetration to support his 

conviction for violating section 289, and further contends that such a conviction violates 

his federal constitutional right to due process. We do not agree.

“In reviewing a challenge to the sufficiency of the evidence, we do not determine 

the facts ourselves. Rather, we examine the whole record in the light most favorable to 

the judgment to determine whether it discloses substantial evidence—evidence that is 

reasonable, credible and of solid value—such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the 

judgment the existence of every fact the trier could reasonably deduce from the evidence.
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[Citation.] [¶] The same standard of review applies to cases in which the prosecution 

relies primarily on circumstantial evidence and to special circumstance allegations. 

[Citation.] [I]f the circumstances reasonably justify the jury’s findings, the judgment 

may not be reversed simply because the circumstances might also reasonably be 

reconciled with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate 

a witness’s credibility. [Citations.]” (People v. Nelson (2011) 51 Cal.4th 198, 210 

[internal quotation marks omitted].)

“‘Sexual penetration’ 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. . . .” (§ 289, subd. (k)(1).)2 “‘Penetration of the [victim’s] 

external genital organs is sufficient to constitute sexual penetration and to complete the 

crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.’

[Citation.]” (People v. Quintana (2001) 89 Cal.App.4th 1362, 1366.)

Lorena’s testimony was more than sufficient evidence to support the verdict. She 

testified repeatedly about the penetration.

On direct examination, Lorena was asked: “When [appellant] was touching your 

vagina with his hand, did his fingers ever go inside your vagina?’ She replied: “Yes.”

Later, she explained: “It’s just like a big mix-up of the way it happened. You know, I 

remember what he did to me, but not exactly if it happened in this order.” She confirmed 

that “him putting his fingers” actually happened. 

On cross-examination, appellant’s counsel asked Lorena if “in your interview at 

the Northridge Hospital, you had indicated that he did not penetrate your vagina with his 

hand?” Lorena replied: “He touched me there, I know he touched me. He – I mean, I 

don’t know if you call it ‘penetrating’ but his fingers were there in the area.” Appellant’s 

counsel asked: “So as you sit here now, he touched you in the vaginal area, but you don’t 

recollect him –” Lorena interrupted the question and said: “He put his fingers in me. He 

didn’t penetrate me hard like he did with his penis, if that’s what you’re asking, but his 

 

2 A finger is a foreign object. (§ 289, subd. (k)(2).) 
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fingers were in there.” Lorena acknowledged that she told the nurse who examined her 

that she did not think that her attacker touched her with his finger in the vaginal area at 

all. She explained that she did not remember the penetration at the time. 

On redirect, the prosecutor asked Lorena: “So would you say that any part of his 

finger went inside your actual vaginal canal?” Lorena replied: “Maybe like this part”

and indicated the portion of a finger above the first crease. The prosecutor asked: “So 

you’re saying that that portion of the finger went inside the opening of your vagina?” 

Lorena replied: “Within that area.” The prosecutor asked: “So past the outer what 

would be the folds?” Lorena replied: “Yes.” The prosecutor asked: “Do you think it 

went inside the vaginal - - what would be the hole of the vagina?” Lorena replied: 

“That’s where I’m not sure . . . . But his fingers were in me there.” The prosecutor asked: 

“When you say ‘in,’ so it was somewhere in between the folds and then where the hole of 

the vagina is?” Lorena replied: “Yes.” Lorena confirmed that she told Sergeant Guthrie, 

the officer who came to the scene, that she had been penetrated by her attacker’s fingers 

and penis. 

Appellant contends that this testimony is too contradictory and vague to show 

sexual penetration. We do not agree.

Appellant is correct that Lorena’s previous statement to the sexual abuse nurse 

contradicted Lorena’s trial testimony. “The testimony of a single witness is sufficient to 

uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to 

other portions.” (In re Robert V. (1982) 132 Cal.App.3d 815, 821.) The jury was not 

required to accept Lorena’s previous statement to the nurse as true, and did not. The jury 

was free to find Lorena’s trial testimony to be the more accurate account of events. We 

do not reweigh evidence or reevaluate witnesses. (People v. Nelson, supra, 51 Cal.4th at 

p. 210.) 

As for vagueness, both Lorena and the attorneys did struggle to describe the 

precise anatomical extent of the penetration, but Lorena was positive that appellant’s 

fingers went in her. The most detailed description came on re-direct, when Lorena

agreed that appellant’s fingers went past the outer folds and reached “somewhere in 
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between the fold and where the hole of the vagina is.” That is sufficient to support the 

verdict.

To the extent that appellant contends that this degree of penetration is insufficient, 

appellant is mistaken. As the nurse explained at trial, female genitalia consists of the 

labia majora (the outer two folds of the vagina) the labia minor (which contains the 

vestibule that houses the hymen) and the vagina. In order to enter the vaginal canal, an 

object would first pass through the labia major, the labia minor, the vestibule and the 

hymen. This is generally a distance of two inches. Lorena described a penetration that 

went past the labia majora, or outer folds.

Penetration of the labia majora is penetration of a “genital opening” and thus 

sexual penetration within the meaning of section 289. (People v. Quintana, supra, 89 

Cal.App.4th at p. 1367 [“the labia majora were thus an ‘opening’ through which 

appellant’s finger penetrated” and since the labia majora are part of the female genitalia, 

“the ‘opening’ through which appellant’s finger penetrated was a genital opening.”] .) 

Since we have “determine[d] that a rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable doubt, the due process clause 

of the United States Constitution is satisfied [citation] as is the due process clause of 

article I, section 15 of the California Constitution.” (People v. Osband (1996) 13 

Cal.4th 622, 690.)

2. One strike burglary allegation

The jury found true the allegation that the charged sex offenses took place during 

the commission of a burglary within the meaning of section 667.61, subdivision (d). 

Appellant contends this finding must be reversed because the burglary was complete 

before the sex crimes occurred. We do not agree.

The jury was instructed on the elements of this allegation with CALCRIM No. 

3178, which explained that “the People must prove that: [¶] 1. The defendant entered an 

inhabited building . . . ; [¶] 2. When the defendant entered the inhabited building, . . . he 

intended to commit rape by force in violation of Penal Code section 261(a)(2); [¶] AND 
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[¶] 3. After the defendant entered the inhabited building, . . . he committed rape by force 

in violation of Penal Code section 261(a)(2) before he escaped to a place of temporary 

safety.” The instruction further stated: “A person has reached a place of temporary 

safety if he or she has successfully escaped from the scene of the crime and is no longer 

being pursued.”

Appellant contends the escape rule does not apply to section 667.61 one strike 

allegations and that in order for the charged sex offenses to occur “during the 

commission” of a burglary, the sex offenses must take place inside the inhabited building. 

Appellant is mistaken.

Appellant argues the escape rule is designed to extend liability for the underlying 

offense, and that for one strike sentencing purposes, the underlying offense is the charged 

sex offense. Thus, he concludes, the escape rule could not extend liability for burglary, 

and burglary must be limited in this context to events occurring from the point of entry to 

the point of exit.

Our colleagues in the Fourth and Sixth District Courts of Appeal have found that 

burglary, for purposes of the one strike law, includes escape. (People v. Palmore (2000) 

79 Cal.App.4th 1290, 1295-1296 [“Burglary, for purposes of this special sentencing 

circumstance in the one strike statute, means the entire course of illegal entry, 

commission of a felony and escape. . . .”]; People v. Alvarado (2001) 87 Cal.App.4th 

178, 191.) Both cases involve sex crimes committed during commercial burglaries under 

section 667.61, subdivision (e)(1), but their reasoning applies equally to residential 

burglaries. We agree with that reasoning.

As the Court of Appeal explained in Alvarado, “[l]ike the felony-murder 

provisions of section 189 and various enhancement statutes, section 667.61(e)(2) 

establishes ancillary consequences for committing a burglary. Moreover, all of these 

statutes share the same legislative purpose: to protect people from acts of force and 

violence that may accompany a felony, in this case burglary. For these reasons, we find 

the continuous-transaction test, including the perpetrator’s escape, to be the appropriate 

way to measure the duration of a burglary under section 667.61(e)(2). Clearly, this 
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measure provides the broadest deterrent against the commission of sex crimes against 

burglary victims. Therefore, we hold that for the purpose of section 667.61(e)(2), ‘during 

the commission of a burglary’ refers to that period of time between the burglar’s initial 

entry with the requisite intent and the burglar’s escape to a place of temporary safety.” 

(People v. Alvarado, supra, 87 Cal.App.4th at p. 191.)

To the extent that appellant contends that the California Supreme Court’s recent 

decision in People v. Wilkins (2013) 56 Cal.4th 333 limits the escape rule to felony 

murder, appellant is mistaken. The California Supreme Court explained in Wilkins that 

although the escape rule originated in felony murder cases, “[t]he escape rule also has 

been extended to other contexts requiring proof that an act occurred in the commission of 

a crime—such as inflicting great bodily injury in the course of commission of a crime 

[citation], kidnapping for purposes of robbery [citation], and use of a firearm in the 

commission of a robbery [citation].” (Id. at p. 341.) We see nothing in Wilkins which 

calls into question the holdings or reasoning of People v. Palmore, supra, 79 Cal.App.4th 

1290 and People v. Alvarado, supra, 87 Cal.App.4th 178.

Further, appellant is mistaken about the scope of a burglary even apart from the 

escape rule. Section 459 provides that “[e]very person who enters any house . . . with 

intent to commit grand or petit larceny or any felony is guilty of burglary.” There is no 

express requirement in this section that the felony be committed inside the house.

“California decisions have rejected the invitation to read into the burglary statutes a

requirement that a defendant enter premises with the intent to commit a crime ‘therein.’” 

(People v. Guthrie (1983) 144 Cal.App.3d 832, 845.) Thus, “California cases do not 

require that a defendant break and enter premises with the intent to commit a crime 

therein in order to commit burglary. [Citations.]” (People v. Ortega (1992) 11 

Cal.App.4th 691, 694 [upholding burglary conviction where entry with intent to commit 

extortion that would be completed elsewhere]; see also People v. Kwok (1998) 63 

Cal.App.4th 1236, 1246-1248 [burglary may be found when defendant made entry with 

intent to facilitate subsequent assault, which ultimately occurred elsewhere]; People v. 

Griffin (2001) 90 Cal.App.4th 741, 748-749; see generally People v. Wright (1962) 206 
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Cal.App.2d 184 [defendant committed burglary when he entered a tire shop in order to 

get access to an adjoining open “shed” from which he intended to steal tires; shed was not 

a structure falling within the burglary statute]; People v. Nance (1972) 25 Cal.App.3d 925 

[defendant committed burglary when he broke into building to pull a switch to turn on 

gasoline pumps located outside the building so that defendant could steal gasoline].)

Appellant also argues the purpose of the burglary one strike allegation is to punish 

more severely those criminals who take advantage of victims who are particularly 

vulnerable because they are inside a structure rather than out in public, and that this 

purpose would not be served by punishing those criminals who commit their sex crimes 

outside a structure. We find the contrary to be true.

As the Court explained in Alvarado, “common experience reveals that people 

usually lower their guard at home, especially when they are eating, reading, watching 

television, bathing and sleeping. However, at those very times, they are unsuspecting and 

particularly vulnerable to shock and surprise by an intruder.” (People v. Alvarado, supra, 

87 Cal.App.4th at pp. 186-187.) Once inside, the burglar may continue to take advantage 

of the victim’s vulnerability by taking “additional steps to avoid detection and [disabling] 

those present.” (Ibid.) “Thus it is clear that in section 667.61 . . . the Legislature sought 

to deter by harsher punishment those who burglarize homes and exploit the vulnerability 

of people inside to commit sex offenses.” (Ibid.)

Here, appellant clearly exploited the vulnerability of Lorena while inside her home 

to commit sex crimes. Lorena had spent the evening at home, relaxing and wrapping 

Christmas presents. Her guard was lowered, and after she unlocked her front door, she 

turned briefly to turn off her phone. It was at that moment that she was shocked and 

surprised by appellant entering her apartment armed with a knife. He was able to begin 

to implement his plan for sexual assault by moving her toward the bedroom. Upon 

learning of the imminent return of Lorena’s boyfriend, appellant grabbed Lorena, 

rendering her even more vulnerable and forced Lorena to flee with him to another 

location to avoid detection. This is exactly the harm the one strike law seeks to deter by 

its increased punishment.
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While actual commission of the sex offenses here did not take place within a 

structure, they did occur before appellant reached a place of temporary safety. We agree 

with the Court in Alvarado that a definition of burglary refers to the “period of time 

between the burglar’s initial entry with the requisite intent and the burglar’s escape to a 

place of temporary safety” is the definition which “provides the broadest deterrent against 

the commission of sex crimes against burglary victims.” (People v. Alvarado, supra, 87 

Cal.App.4th at p. 191.) We adopt that definition.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL RECORDS

MINK, J.*

We concur:

TURNER, P.J. 

KRIEGLER, J.

 

* Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.