People v. Gonzales

224 Cal. Rptr. 3d 421, 16 Cal. App. 5th 494, 2017 WL 4769069, 2017 Cal. App. LEXIS 919
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 23, 2017
Docket2d Crim. No. B276101
StatusPublished
Cited by174 cases

This text of 224 Cal. Rptr. 3d 421 (People v. Gonzales) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gonzales, 224 Cal. Rptr. 3d 421, 16 Cal. App. 5th 494, 2017 WL 4769069, 2017 Cal. App. LEXIS 919 (Cal. Ct. App. 2017).

Opinion

GILBERT, P. J.

*496Here we affirm a judgment involving various counts of Penal Code violations relating to child molestation. The prosecution introduced evidence of uncharged sex offenses defendant committed against the victim through the victim's own testimony, not through the testimony of third parties. ( Evid. Code, § 1108, subd. (a).) Such testimony, though not common, is in accord with established precedent. We are concerned, however, with the relationship between CALCRIM No. 1191,1 instructing on evidence of uncharged sex offenses against the victim, and Evidence Code 1108. These concerns are well stated in Justice Perren's concurring opinion.

*497A jury found Richard Gonzales, Jr. guilty of two counts of oral copulation with a child 10 years old or younger ( Pen. Code, §§ 288.7, subd. (b),2 289 ) (counts 1 and 3); three counts of lewd acts with a child (§ 288, subd. (a)) (counts 2, 4 and 6); and one count of sexual penetration of a child 10 years old or younger ( §§ 288.7, subd. (b), 289 ) (count 5). The jury also found as to counts 2, 4 and 6 that Gonzales had substantial sexual contact with the child. (§ 1203.066, subd. (a)(8).)

The trial court sentenced Gonzales to three consecutive 15-years-to-life terms on counts 1, 3 and 5, for a total term of 45 years to life. The court stayed six-year sentences on counts 2, 4 and 6 pursuant to section 654.

We strike fines imposed on counts 2, 4 and 6. We reverse the order requiring Gonzales to pay the public defender but do not remand for a hearing on Gonzales's ability to pay. In all other respects, we affirm.

*425FACTS

L.W. was born on October 20, 2005. In January 2010, L.W. lived with her mother, J.W., and two-year-old brother, E.W., in a studio apartment in Santa Barbara. In October 2010, J.W. met Gonzales who was 41 years old. Gonzales moved into the apartment with J.W. and her children later that year. J.W. and Gonzales slept on a bed and the children slept on a futon.

(a) Charged Offenses

Counts 1 and 2

The second day Gonzales lived in the Santa Barbara apartment, J.W. and E.W. were in the bathroom with the door closed. Gonzales called L.W. to him. When she arrived, Gonzales put his penis in her mouth and moved it back and forth. He stopped when the toilet flushed.

Counts 3 and 4

When L.W. was seven years old, she was living with her family in a motel in Ventura. Gonzales was living with them. When J.W. and E.W. were across the street at a store, Gonzales told L.W. to get on her knees. She thought he was going to make her scrub the floor. He put his penis in her mouth and moved it back and forth. He stopped when he heard the key in the door.

*498Counts 5 and 6

In September 2013, L.W.'s mother was out and L.W. was lying on the bed watching television with her brother. Gonzales called L.W. over to the other bed. He got on top of her, pulled down her pants and underwear and inserted his penis into her vagina. When it was over, Gonzales told L.W. not to tell her mother.

Uncharged Conduct

In December 2011, L.W. moved to Arizona with her family and Gonzales. L.W. was in the first grade. They rented a four-bedroom house. L.W. had her own room. L.W. kept the door to her room open at night because she was afraid of the dark.

One night Gonzales came into L.W.'s room and locked the door. He climbed into bed with her, pulled down her pants and underwear and inserted his penis into her vagina.

One night Gonzales went to lie down with L.W. J.W. went to check on them because they were gone a long time. She found the door to L.W.'s room locked. She knocked and told Gonzales to open it. After a delay, he did so. J.W. asked Gonzales why the door was locked. Gonzales told her L.W. was afraid a monster would enter her room.

J.W.'s job ended and the family and Gonzales stayed with friends, Alex Ferchand and his girlfriend Nicki. Nicki told Ferchand that Gonzales was showering with the children. Ferchand confronted Gonzales. Gonzales said he was wearing shorts. Ferchand told Gonzales that he did not allow that in his house.

In December 2012, when L.W. was seven years old, the family was staying with Gonzales in Ventura. One day while L.W.'s mother and brother were in the bathroom, Gonzales came up to her with his penis sticking out. L.W. was eating. She pushed him away and told him no. The toilet flushed ending the incident.

L.W. could not remember how many times Gonzales put his penis in her mouth over the course of the years he lived with her family. She guessed Gonzales put his penis in her vagina three times.

*426Investigation

In September 2013, L.W. told her mother, "Ricky raped me." Her mother confronted Gonzales who denied it. L.W. also told fellow students. The *499students reported to the school principal that L.W. spoke of inappropriate sexual behavior. The principal called the police.

Ventura Police Detective Eric Vazquez interviewed L.W. She told him of the instances where Gonzales had placed his penis in her mouth and vagina. She said Gonzales put his penis in her vagina "probably three times" and in her mouth "probably more." She said Gonzales asked her if he could put his penis in her butt. L.W. said no.

Regina D'Aquilla, a sexual assault nurse, interviewed and examined L.W. D'Aquilla noticed an injury to L.W.'s hymen consistent with penetration. L.W. recounted that Gonzales placed his penis in her mouth and vagina. She said he did not place his mouth on her vagina and that she rejected his attempt to put his penis in her butt. L.W. told D'Aquilla that she had a vaginal infection for which her mother gave her medication. L.W. thought the infection was due to Gonzales having put his penis in her vagina.

During therapy, L.W. made two stick-figure drawings. One depicts Gonzales putting his penis in her mouth while she is on her knees; the other depicts Gonzales lying on top of her while her brother watches television.

CSAAS Testimony

Jody Ward, Ph.D., a clinical and forensic psychologist, testified about Child Sexual Abuse Accommodation Syndrome (CSAAS). She said CSAAS is not used to determine whether a child has been abused, but it is helpful for understanding a child's reaction to abuse. Ward did not speak with anyone or review any evidence relating to the case.

Ward testified it is normal for a child to still want comfort from the abuser and to act loving and trusting toward him, for a child to fail to cry out for help, and for a child to try to forget about the abuse. Commonly a child will not remember each incident or the precise details of each incident.

Defense

Gonzales testified in his own defense. He denied committing the alleged acts or having sexual contact with L.W. He said L.W. lied in her interviews and testimony. He offered to provide a DNA sample, but the police would not take it.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Magallon CA1/5
California Court of Appeal, 2025
People v. Cervantes CA2/1
California Court of Appeal, 2025
People v. Melgoza
California Court of Appeal, 2025
People v. Cortez CA4/1
California Court of Appeal, 2025
People v. Arey CA5
California Court of Appeal, 2025
People v. Rodriguezkepley CA4/2
California Court of Appeal, 2025
People v. Giral CA2/6
California Court of Appeal, 2024
People v. Oakley CA1/2
California Court of Appeal, 2024
People v. Perdomo CA1/3
California Court of Appeal, 2024
P. v. Whelan CA3
California Court of Appeal, 2024
People v. Flores
California Court of Appeal, 2024
People v. Mason CA1/1
California Court of Appeal, 2024
People v. Adkisson CA6
California Court of Appeal, 2024
People v. Boswell CA4/1
California Court of Appeal, 2024
People v. Rivard CA3
California Court of Appeal, 2024
People v. Castaneda CA2/6
California Court of Appeal, 2024
People v. Lopez CA4/3
California Court of Appeal, 2024
People v. Silva CA4/1
California Court of Appeal, 2023
People v. Pettijohn CA4/1
California Court of Appeal, 2023
People v. Lawson CA3
California Court of Appeal, 2023

Cite This Page — Counsel Stack

Bluebook (online)
224 Cal. Rptr. 3d 421, 16 Cal. App. 5th 494, 2017 WL 4769069, 2017 Cal. App. LEXIS 919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gonzales-calctapp5d-2017.