Filed 4/29/15 P. v. Morales CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E061011
v. (Super.Ct.No. RIF1104509)
SEBASTIAN GONZALES MORALES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.
Affirmed.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted defendant, Sebastian Morales, of five counts of committing oral
copulation or sexually penetrating a victim 10 years old or younger (Pen. Code, § 288.7,
1 subd. (b))1 and one count of committing a lewd and lascivious act on a minor under the
age of 14. (§ 288, subd. (a).) He was sentenced to prison for three consecutive terms of
15 years to life, plus six years, and appeals.
Upon defendant’s request, this court appointed counsel to represent him on appeal.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436
and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed. 2d 493], setting
forth a statement of the case, a summary of the facts, and potential arguable issues and
requesting this court to conduct an independent review of the record. We discuss those
issues later in this opinion and conclude that none are meritorious.
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have independently reviewed the record for potential error and find no arguable issues.
FACTS
The victim’s mother testified that she began cohabiting with defendant, her
boyfriend, when the victim was three years old. They, and the victim’s two younger
brothers, moved to an apartment in Corona when the victim was seven years old. The
victim testified that while living in that apartment, on two or three occasions, defendant
entered the bedroom the victim shared with one of her brothers in the middle of the night,
pulled down her pajama bottoms and put his finger in her vagina and his penis in her
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 mouth. After the first such incident, defendant twice had the victim put lotion on his
naked body, and he on hers, while they were in his bedroom during the day. During these
incidents, defendant had the victim rub up and down his penis with both of her hands.
Defendant told the victim not to tell about these incidents. When the family moved to an
apartment in Riverside, all five members slept in the same bedroom. On one occasion,
defendant put his penis in the victim’s mouth while the victim’s mother and brothers
slept. The victim told her aunt, who was seven months older than the victim and living
with the victim in her parents’ (the victim’s grandparents’) house, when the victim was
ten and one-half years old. The aunt told the aunt’s mother, who was the victim’s
grandmother, the latter told another aunt, and that aunt told the victim’s mother.
POTENTIAL ARGUABLE ISSUES AND DISCUSSION
There was substantial evidence to support all six of the convictions, as stated
above.
The sentencing court imposed a fine pursuant to section 290.3 of $2,800,
representing a fine of $300 for defendant’s first conviction in this case and fines of $500
each for the remaining five convictions. Section 290.3, subdivision (a) provides, in
pertinent part, “Every person who is convicted of [a violation of 288.7 or 288] . . . shall,
in addition to any imprisonment or fine, or both, imposed for commission of the
underlying offense, be punished by a fine of three hundred dollars . . . upon the first
conviction or a fine of five hundred dollars . . . upon the second and each subsequent
conviction, unless the court determines that the defendant does not have the ability to pay
3 the fine.” In People v. O’Neal (2004) 122 Cal.App.4th 817, 822, the appellate court
observed, “[The defendant] argues nothing permits the imposition of multiple section
290.3 fines in the same proceeding. But the statute refers to fines for convictions, not
fines for proceedings. [The defendant’s] argument is based on the theory that his plea
agreement must be treated as if it involved only one conviction. But he pled guilty to two
counts of committing a lewd act upon a child. Each count involved a separate conviction.
Because there were two counts, [the defendant] had a second or subsequent conviction
under section 290.3 [¶] The statute does not limit the number of fines that may be
imposed for multiple convictions in the same case. If the Legislature wanted to impose
such a limitation, it would have done so. [Citation.] [¶] . . . [A]dopting [the defendant’s]
position would mean there would be different fines for defendants who had the same
number of convictions. If the prosecutor joined multiple counts in one case there would
be a single fine, but there would be multiple fines if each count was filed in a separate
action. The Legislature did not intend such a result because it would be basing fines on
the prosecutor’s procedural choice, not the number of convictions.” We agree with the
reasoning in O’Neal and adopt it as our own, noting that no published opinion has since it
was authored disagreed with it.
Defendant’s mother testified for the defense that defendant interacted with young
female family members appropriately and she opined, based on that, that he had no
sexual interest in children. During cross-examination of the mother, the prosecutor asked
her if defendant ever talked to her about “the kind of porn he likes.” The trial court
4 sustained defense counsel’s objection that the question was outside the scope of
testimony and evidence. Later, the trial court explained that it had sustained defense
counsel’s objection because it had asked the prosecutor “if she had information in her
possession that would be the foundation to the question and with the anticipation the
answer would agree with the premise that the defendant liked child pornography, which
might be inconsistent, of course, with the testimony of [the mother] that [defendant]
displayed at no time any sexual interest in any minor child while in the presence of [the
mother]. [¶] But [the prosecutor] indicated, and I believe truthfully, that she had no such
information and . . . the question did not mention child pornography. I think it talked
about pornography generally. I sustained the objection and [the prosecutor] moved on
from that point.” The prosecutor added, “I was just asking to lay the foundation as to
what [the mother] knew regarding the defendant’s sexual preference. It was not whether
or not he actually watched porn, nor was I going to go any further than that question.”
The trial court responded, “I . . . indicate[d] that if the defendant was looking
at . . .
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Filed 4/29/15 P. v. Morales CA4/2
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 TWO
THE PEOPLE,
Plaintiff and Respondent, E061011
v. (Super.Ct.No. RIF1104509)
SEBASTIAN GONZALES MORALES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.
Affirmed.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted defendant, Sebastian Morales, of five counts of committing oral
copulation or sexually penetrating a victim 10 years old or younger (Pen. Code, § 288.7,
1 subd. (b))1 and one count of committing a lewd and lascivious act on a minor under the
age of 14. (§ 288, subd. (a).) He was sentenced to prison for three consecutive terms of
15 years to life, plus six years, and appeals.
Upon defendant’s request, this court appointed counsel to represent him on appeal.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436
and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed. 2d 493], setting
forth a statement of the case, a summary of the facts, and potential arguable issues and
requesting this court to conduct an independent review of the record. We discuss those
issues later in this opinion and conclude that none are meritorious.
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have independently reviewed the record for potential error and find no arguable issues.
FACTS
The victim’s mother testified that she began cohabiting with defendant, her
boyfriend, when the victim was three years old. They, and the victim’s two younger
brothers, moved to an apartment in Corona when the victim was seven years old. The
victim testified that while living in that apartment, on two or three occasions, defendant
entered the bedroom the victim shared with one of her brothers in the middle of the night,
pulled down her pajama bottoms and put his finger in her vagina and his penis in her
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 mouth. After the first such incident, defendant twice had the victim put lotion on his
naked body, and he on hers, while they were in his bedroom during the day. During these
incidents, defendant had the victim rub up and down his penis with both of her hands.
Defendant told the victim not to tell about these incidents. When the family moved to an
apartment in Riverside, all five members slept in the same bedroom. On one occasion,
defendant put his penis in the victim’s mouth while the victim’s mother and brothers
slept. The victim told her aunt, who was seven months older than the victim and living
with the victim in her parents’ (the victim’s grandparents’) house, when the victim was
ten and one-half years old. The aunt told the aunt’s mother, who was the victim’s
grandmother, the latter told another aunt, and that aunt told the victim’s mother.
POTENTIAL ARGUABLE ISSUES AND DISCUSSION
There was substantial evidence to support all six of the convictions, as stated
above.
The sentencing court imposed a fine pursuant to section 290.3 of $2,800,
representing a fine of $300 for defendant’s first conviction in this case and fines of $500
each for the remaining five convictions. Section 290.3, subdivision (a) provides, in
pertinent part, “Every person who is convicted of [a violation of 288.7 or 288] . . . shall,
in addition to any imprisonment or fine, or both, imposed for commission of the
underlying offense, be punished by a fine of three hundred dollars . . . upon the first
conviction or a fine of five hundred dollars . . . upon the second and each subsequent
conviction, unless the court determines that the defendant does not have the ability to pay
3 the fine.” In People v. O’Neal (2004) 122 Cal.App.4th 817, 822, the appellate court
observed, “[The defendant] argues nothing permits the imposition of multiple section
290.3 fines in the same proceeding. But the statute refers to fines for convictions, not
fines for proceedings. [The defendant’s] argument is based on the theory that his plea
agreement must be treated as if it involved only one conviction. But he pled guilty to two
counts of committing a lewd act upon a child. Each count involved a separate conviction.
Because there were two counts, [the defendant] had a second or subsequent conviction
under section 290.3 [¶] The statute does not limit the number of fines that may be
imposed for multiple convictions in the same case. If the Legislature wanted to impose
such a limitation, it would have done so. [Citation.] [¶] . . . [A]dopting [the defendant’s]
position would mean there would be different fines for defendants who had the same
number of convictions. If the prosecutor joined multiple counts in one case there would
be a single fine, but there would be multiple fines if each count was filed in a separate
action. The Legislature did not intend such a result because it would be basing fines on
the prosecutor’s procedural choice, not the number of convictions.” We agree with the
reasoning in O’Neal and adopt it as our own, noting that no published opinion has since it
was authored disagreed with it.
Defendant’s mother testified for the defense that defendant interacted with young
female family members appropriately and she opined, based on that, that he had no
sexual interest in children. During cross-examination of the mother, the prosecutor asked
her if defendant ever talked to her about “the kind of porn he likes.” The trial court
4 sustained defense counsel’s objection that the question was outside the scope of
testimony and evidence. Later, the trial court explained that it had sustained defense
counsel’s objection because it had asked the prosecutor “if she had information in her
possession that would be the foundation to the question and with the anticipation the
answer would agree with the premise that the defendant liked child pornography, which
might be inconsistent, of course, with the testimony of [the mother] that [defendant]
displayed at no time any sexual interest in any minor child while in the presence of [the
mother]. [¶] But [the prosecutor] indicated, and I believe truthfully, that she had no such
information and . . . the question did not mention child pornography. I think it talked
about pornography generally. I sustained the objection and [the prosecutor] moved on
from that point.” The prosecutor added, “I was just asking to lay the foundation as to
what [the mother] knew regarding the defendant’s sexual preference. It was not whether
or not he actually watched porn, nor was I going to go any further than that question.”
The trial court responded, “I . . . indicate[d] that if the defendant was looking
at . . . pornography involving adult[s], . . . that, in and of itself, in my mind, may not be
relevant to these proceedings. [¶] . . . [¶] . . . [The prosecutor said at sidebar] that there
is no evidence that the defendant viewed pornography . . . to any extent—whether
it . . . involve[ed] a minor or an adult.”
We find no prosecutorial misconduct, that is, the use of deceptive and
reprehensible methods (People v. Avila (2009) 46 Cal.4th 680,711) in the question the
prosecutor asked of defendant’s mother. Moreover, because it was successfully objected
5 to by defense counsel, and no answer was given, it could not possibly have prejudiced
defendant.
During argument to the jury, defense counsel maintained that the victim’s mother
had put the victim up to accusing defendant and corroborated at trial the latter’s account
of telling the mother about the molestations because she was angry at defendant for
rejecting her and wanted to keep defendant from gaining custody of the son they shared.
Defense counsel argued that defendant had no opportunity to commit the acts alleged to
have taken place in Corona and they could not have happened the way the victim
described them. He asserted that the victim’s interaction with defendant, her failure to
report the acts soon after they occurred, the inconsistencies in her stories and between
hers and her aunt’s, the lack of evidence that defendant was inappropriate with any other
young female family members and the absence of physical evidence suggested that
defendant had not molested the victim. He argued that defendant would have had to have
been foolish to molest the victim in their Riverside apartment, where her mother and
brothers slept in the same room with them. He asserted that there was no evidence that
defendant liked to be around children—in fact, the evidence was that he did not,
therefore, the molestations “didn’t happen.” He argued that the victim got her knowledge
of sexual facts by watching her mother and defendant engage in sexual activity. In
response, during her closing argument, the prosecutor said that in order to acquit
defendant, the jury would have to disbelieve the victim, her mother and her aunt. The
prosecutor continued, “And if you go through all of this conspiracy theory, if you go
6 through all of the testimony and you believe that this conspiracy theory happened, that
with no evidence [the mother] is a vindictive malicious person, regardless of what
defense witnesses say [to the contrary], regardless of what evidence came in, acquittal.
Put him back in your community.” Defense counsel objected on the basis that this was
improper argument. The trial court instructed the jury, “[N]othing the attorneys say is
evidence. Do not consider the last statement of counsel for any purpose at all. You’re
not to consider the impact of acquitting somebody insofar as putting that person back into
your community. That is not to be considered by you. That’s improper argument.” To
the extent the prosecutor may have committed misconduct in making the comment about
releasing defendant into the community, defendant was not prejudiced because the trial
court instructed the jury to ignore it and we presume the jury followed this directive.
(People v. Adams (2014) 60 Cal.4th 541, 578.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
McKINSTER J.
KING J.