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Filed 3/18/21 P. v. Valiente CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEXANDER GALVEZ VALIENTE,

Defendant and Appellant.

 A159455

(Solano County 

Super. Ct. No. VCR232201)

Alexander Galvez Valiente appeals his conviction for two counts 

of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)), 

contending that the evidence was insufficient to support his 

convictions. Because his appeal lacks merit, we affirm.

BACKGROUND

Valiente’s convictions are based on two incidents involving his 

niece, M.H. When she was in her twenties, M.H. reported that Valiente 

had molested her when she was a child. The incidents occurred at a 

house in Vallejo, California (“Vallejo house”) where Valiente had 

resided, and where M.H. attended family gatherings and occasionally 

slept overnight. In addition to Valiente, M.H.’s aunt and grandparents 

resided in the home.
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According to M.H., in one of the incidents (the living room 

incident), Valiente approached her when she was laying on her stomach 

in the living room at the Vallejo house, watching cartoons one morning 

after having slept over. M.H. was wearing pink pajamas with flowers 

on them, and Valiente was wearing olive green plaid pajama pants. 

Valiente flipped her over onto her back by grabbing her torso on the 

sides of her stomach, and then lay on top of her, thrusting his penis 

against her vaginal area through her clothes. She felt Valiente’s body 

weight on top of hers and felt a lot of pressure from his penis against 

her vagina. Because it hurt, M.H. said “owe,” and Valiente stopped and 

got off of her. The incident lasted for about a minute. M.H. testified 

inconsistently about her age when the incident happened, stating at 

various points that she was six, seven, or eight at the time.

In the other incident (the sleeping bag incident), M.H. had slept 

overnight in a sleeping bag on the floor of the master bedroom of the 

Vallejo house. After her aunt woke up and left the room, Valiente got 

into M.H.’s sleeping bag behind her, in a spooning position. The two 

were laying on their left sides. Valiente brushed his right hand along 

M.H.’s body, from her right calf to her hip to her vagina. He touched 

her vagina through her clothes for a few seconds. M.H. was between 

the ages of seven and ten at the time.

Valiente testified at trial and denied the allegations.

After the jury returned guilty verdicts, the trial court sentenced 

Valiente to a total of eight years in prison, suspended the sentence, and 

placed Valiente on three years of probation. The court sentenced 

Valiente to serve 364 days in custody and imposed $1,070 in fines and 

fees. 
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DISCUSSION

In considering Valiente’s contention that there was insufficient 

evidence to support his convictions, we review the record for 

substantial evidence from which a reasonable trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. 

(People v. Morales (2020) 10 Cal.5th 76, 88.) We “ ‘review the evidence 

in the light most favorable to the prosecution and presume in support 

of the judgment the existence of every fact the [trier of fact] could 

reasonably have deduced from the evidence.’ ” (People v. Lee (2017) 11 

Cal.App.5th 344, 353 (Lee).) We may not resolve credibility issues or 

evidentiary conflicts because those are “ ‘the exclusive province of the 

trier of fact.’ ” (People v. Gomez (2018) 6 Cal.5th 243, 280-281 (Gomez).) 

Applying these standards, we affirm the convictions.

A.

Pointing to M.H.’s conflicting testimony about her age at the time 

of each incident, Valiente contends there was insufficient evidence to 

support his convictions. We disagree.

Although M.H. was uncertain about how old she was when the 

incidents of abuse occurred, she was certain that they took place while 

Valiente resided at the Vallejo house.

1

 She testified that the living 

room incident happened when she was about six years old, when she 

was “about seven,” or when she was seven or eight years old. She also 

testified that she thought she was in the first or second grade at the

1 In light of M.H.’s consistent testimony that both incidents 

occurred at the Vallejo house, we reject Valiente’s suggestion that the 

Solano County Superior Court did not have jurisdiction over the case

because the incidents may have occurred while he resided in Marin 

County.
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time. With respect to the sleeping bag incident, M.H. estimated that 

she may have been seven, eight, or nine at the time, or possibly as old 

as 10 years old.

M.H. indicated that she could “not exactly” remember what her 

age was at the time of the two incidents and that they happened “a 

while ago.” She also testified that notwithstanding her inability to 

remember exactly old she was, she was “a hundred percent confident” 

that Valiente got on top of her and tried to “dry hump” her in the living 

room. Likewise, although she could not remember her exact age, she 

testified that she was “a hundred percent confident” that Valiente got 

into her sleeping bag and touched her leg and vagina. She described 

the incidents of molestation in detail, including the time of day, the 

exact location inside the house, the duration, Valiente’s actions, and 

her body position relative to his.

The inconsistencies concerning M.H.’s age do not undermine the 

convictions here. First, we disagree with Valiente’s assertion that the 

living room incident described by M.H. was impossible or highly 

improbable because he did not move into the Vallejo house until 

February of 2003. (See Gomez, supra, 6 Cal.5th at p. 281 [appellate 

court must defer to trier of fact’s resolution of inconsistencies in 

testimony “in the ‘absence of patent falsity, inherent improbability, or 

other reason to question [the testimony’s] validity’ ”].) At that time, 

M.H. would have been eight years old, which was consistent with her 

testimony at one point that she was seven or eight years old at the time 

of the living room incident. Contrary to Valiente’s claim, M.H. never 

testified that she was five years old at the time of the living room 

incident. She testified that instances of inappropriate conduct by 
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Valiente occurred when she was between the ages of five and twelve. 

When defense counsel asked her directly what happened when she was 

five years old, she testified that no specific incident occurred at that 

time, but she “felt that he was always looking for me.”

Second, M.H.’s precise age was immaterial so long as she was 

younger than age 14, as required for a conviction under Penal Code 

section 288, subdivision (a). The prosecution charged both counts of 

lewd acts as having occurred between July 29, 1999 and July 28, 2007, 

and M.H.’s testimony was not only consistent with the charged time 

period, but established that the acts occurred when she was younger 

than 14. (See People v. Garcia (2016) 247 Cal.App.4th 1013, 1022 [“

‘The law is clear that, when it is charged that an offense was committed

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

the time “is a material ingredient in the offense” (Pen. Code, § 955), and

the evidence is not insufficient merely because it shows that the offense

was committed on another date.’ ”].)

Third, although M.H. provided inconsistent testimony about her 

age, it was the jury’s role to evaluate her credibility – not ours. By the 

time of trial, well over a decade had passed since the time of the 

incidents, and it would not have been unreasonable for the jury to 

conclude that M.H. could remember the incidents themselves without 

remembering the precise timing. For example, in People v. Mejia

(2007) 155 Cal.App.4th 86, the court rejected the defendant’s challenge 

to the sufficiency of the evidence where the victim testified that 

defendant molested her more than two times in one month, but later 

testified that he molested her “ ‘about once’ ” that month and that she 

could not remember much about that month. (Id. at pp. 98-99.) In 
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such circumstances, “a reasonable juror could have understood her as 

merely explaining that she could not recall the precise number of times 

she suffered abuse at defendant’s hands during that month, which was 

consistent with her prior testimony that there had been at least two 

instances of abuse that month.” (Ibid.) Ultimately, “the contradictions 

in the victim’s testimony did not render it impossible to believe or 

obviously false, but merely presented the jury with a credibility 

determination that is not reviewable on appeal.” (Id. at p. 99; see also, 

e.g., People v. Tompkins (2010) 185 Cal.App.4th 1253, 1261 [“Even 

though [the victim’s] testimony at trial was somewhat inconsistent” 

concerning the number of incidents, “the inconsistency went only to the 

weight and credibility of the evidence and, on appeal, we do not disturb 

the jury's resolution of that inconsistency.”].)

B.

We likewise reject Valiente’s contention that otherwise accepting 

M.H.’s testimony concerning the sleeping bag incident as true, the 

incident she described was physically impossible.

According to M.H., she and Valiente were both were laying on 

their left sides in the sleeping bag, facing the same direction. Valiente 

was behind M.H. in a spooning position, with his groin area touching 

her buttocks. M.H.’s right leg was on top of her left. Valiente touched 

M.H.’s right calf with his right hand and brushed his hand along her 

body. As M.H. described, Valiente “started with my right calf and then 

he scooted his fingers up on my hips and went over my vaginal area.” 

Valiente touched her vagina through her clothes for “a couple of 

seconds.”
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We disagree with Valiente’s assertion that “[a]natomically 

speaking,” he could not have touched M.H.’s vagina as she described. It 

would have been entirely reasonable for the jury to conclude that since 

Valiente was laying on his left side, close behind M.H., he could have 

reached toward her right calf with his right hand, moved his hand 

upward along her body toward her right hip, and then moved his hand 

from her right hip to her vaginal area, between her legs. Although 

M.H. did not provide a second-by-second account of every place on her 

body that Valiente touched when moving his hand from her right hip to 

her vaginal area, we must “ ‘presume in support of the judgment the 

existence of every fact the [trier of fact] could reasonably have deduced 

from the evidence.’ ” (Lee, supra, 11 Cal.App.5th at p. 353.)

C.

Finally, we are unpersuaded by Valiente’s argument that the 

evidence supporting the convictions was insufficient because the 

prosecution did not introduce evidence other than M.H.’s testimony to 

corroborate her account. Although Valiente emphasizes that there was 

no physical or medical evidence, he does not explain why such evidence 

would be expected in a case involving lewd touching of a child through 

her clothes, where the offenses were not reported until over a decade 

later. In any event, and as Valiente acknowledges, the testimony of a 

single eyewitness is generally sufficient to support a conviction. (See 

Gomez, supra, 6 Cal.5th at p. 281). Corroboration of a child victim’s 

“testimony is not a necessary element of proof in a prosecution for lewd 

acts on a child under 14.” (People v. Harlan (1990) 222 Cal.App.3d 439, 

451.)
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DISPOSITION

The judgment is affirmed.
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_______________________

BURNS, J. 

We concur:

____________________________

NEEDHAM, ACTING P.J.

____________________________

SELIGMAN, J.*

A159455

* Judge of the Superior Court of Alameda County, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.