People v. Montoya

1

THE PEOPLE, Plaintiff and Respondent, v. EPIFANIO LEDESMA MONTOYA, Defendant and Appellant.

H048965

California Court of Appeals, Sixth District

April 27, 2023

NOT TO BE PUBLISHED

(Monterey County Super. Ct. No. 19CR012403)

Wilson, J.

A jury convicted defendant Epifanio Ledesma Montoya of multiple sexual offenses against two different children, Jane Doe 1 and Jane Doe 2,^[1] both of whom were under 14 years of age. He was sentenced to a total indeterminate term of 100-years-to-life in prison.

On appeal, Montoya raises the following arguments related to his trial: (1) his trial counsel was constitutionally ineffective for failing to suppress Montoya's custodial interview with police officers and in her final argument to the jury (2) the trial court erred in admitting expert testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS); and (3) the trial court erred in instructing the jury on CSAAS with CALCRIM No. 1193. With respect to his sentence, Montoya argues: (1) the 25-years-to-life terms imposed under the One Strike law constituted improper dual punishment and violated the Eighth Amendment; (2) the trial court erred by failing to conduct a hearing on his ability to pay fines and fees; and (3) the minute order from the sentencing hearing and abstract of judgment must be corrected to reflect the trial court's oral pronouncement of a $1,500 restitution fund fine.

We find no merit in any of Montoya's substantive arguments, but agree that the abstract of judgment and minute order must be modified regarding his restitution fund fine. As modified, we will affirm the judgment.

I. Factual and Procedural Background

A. Procedure

On January 5, 2021, the Monterey County District Attorney filed an amended information charging Montoya with one count of committing a forcible lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (b)(1);^[2] count 1), and four counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a); counts 2-5).^[3]The amended information also alleged, as to each count, that the offenses were committed against more than one victim and each victim was under the age of 14 (§ 667.61, subd. (j)(2); counts 1-5). As to counts 1 through 4, the amended information further alleged Montoya had substantial sexual conduct with the victims and the victims were under the age of 14 (§ 1203.066, subd. (a)(8); counts 1-4).

On February 22, 2021, the jury convicted Montoya on all five counts and found true the special allegations associated with those counts (§§ 667.61, subds. (e)(4), (j)(2), 1203.066, subd. (a)(8)).

On March 23, 2021, the trial court sentenced Montoya to an aggregate indeterminate term of 100-years-to-life in prison, consisting of consecutive terms of 25-years-to-life on counts 1, 2, 4, and 5, plus a concurrent term of 25-years-to-life as to count 3.

In addition, the trial court imposed the following fines, fees, and assessments: a restitution fund fine of $1,500 ($300 per conviction) (§ 1202.4, subd. (b));^[4] an additional parole revocation fund fine of $1,500, suspended pending successful completion of parole (§§ 1202.4, subd. (b), 1202.45); a sexual offender registration fine of $500 plus $1,550 in penalty assessments and administrative fees for a total of $2,050 (§ 290.3); a court operation assessment of $200 ($40 per conviction) (§ 1465.8, subd. (a)(1)); and a court facility assessment of $150 ($30 per conviction) (Gov. Code, § 70373).

Montoya timely appealed.

B. Facts

1. Prosecution case

a. Montoya's relationship with the victims and discovery of sexual conduct

Montoya began dating Maria C. in 2015 or 2016 and, in the fall of 2019, he was living with Maria C. at her home in Salinas with her two daughters, A.C. and Jane Doe 1. In 2019, A.C. was an adult and Jane Doe 1 was 10 years old. Either A.C. or Montoya would look after Jane Doe 1 after school while Maria C. was at work. Sometimes, one of Jane Doe 1's classmates, Jane Doe 2, would come to Jane Doe 1's house after school as well.

b. Jane Doe 1's testimony regarding uncharged conduct^[5]

Jane Doe 1, who was 11 years old at the time of trial, testified that Montoya first touched her inappropriately when she was near the end of third grade. She was sitting on the couch in her living room watching television when Montoya came into the room and sat next to her. Montoya put his hand on her thigh then slid his hand up toward her groin. He touched her "private part" over her clothes for two or three minutes until she grabbed his hand and pushed him away. Jane Doe 1 ran to her sister's bedroom, locked the door, and began to cry. She did not say anything because she was afraid Montoya would do something to her mother.

The next incident Jane Doe 1 described took place at the beginning of fourth grade. She and Montoya were "play[] fighting" alone in the living room after she returned home from school. Montoya got on top of her and she "couldn't do anything." Montoya touched her ribs then her breasts.

That same school year, Jane Doe 1 was watching television in the living room. She was on the floor and Montoya sat down near her and pulled her leg. When Montoya started to pull her pants down, she tried to pull them back up and told him to stop. Montoya grabbed her legs so that she could not move, took off her pants, and got on top of her. He inserted his penis into her vagina, hurting her.

The last uncharged incident again occurred when Jane Doe 1 was in fourth grade. She was in her mother's bedroom when Montoya entered the room and asked what she was doing. After Jane Doe 1 replied "nothing," Montoya jumped on her. Because Montoya was heavy, she could not breathe. Montoya grabbed Jane Doe 1's hands, put his knee on her stomach, and pulled down her pants. He then pulled down his pants, but not his underwear, and "went up and down" on top of her.

c. Jane Doe 1's testimony regarding counts 1 and 2

Jane Doe 1 testified that the offense charged in count 1 occurred when she was sitting in the living room of her mother's house.^[6] Montoya came out of her mother's room, sat down near her, then pulled her to the floor. After he pulled down her pants, Jane Doe 1 got up and ran to her mother's room, got on the bed, and tried to cover herself with a blanket. Montoya pulled the blanket away, removed both of their pants, and got on top of her. He pulled his underwear down and inserted his penis into her vagina. Jane Doe 1 tried to get away, but he grabbed her elbows, preventing her from moving. After a couple of minutes, she was able to kick him in the stomach and he stopped.

The incident charged in count 2 also occurred when Jane Doe 1 was in the fourth grade. Jane Doe 1 was watching television after school, lying on her stomach. She asked Montoya to scratch her back and, as he did so, she pretended to fall asleep. Montoya moved his hand down her spine until he was touching her buttocks. He put his hand beneath her shorts, and pushed her underwear aside before touching her vagina with two fingers. Montoya then pulled out his penis and inserted it into her vagina, hurting her. After an undisclosed amount of time, Montoya got up and left the room.

d. Jane Doe 1's testimony regarding the cellphone video

At the beginning of fifth grade, Jane Doe 1 befriended Jane Doe 2, who was the same age as her. On September 26, 2019, Jane Doe 2 and her younger brother came over to Jane Doe 1's house after school. Jane Doe 1 had previously disclosed to Jane Doe 2 what Montoya had done to her. Jane Doe 2 spontaneously asked "what if [I] did it" with Montoya. Jane Doe 1 replied by asking why she would do that. Jane Doe 2 did not respond but went into the living room where Montoya was playing with Jane Doe 2's younger brother. Jane Doe 1 decided she wanted to catch Montoya in the act, because she was tired of him abusing her. She positioned her phone on the dresser in her mother's room, with the camera facing the bed, activated the video recording and left the room. After some period of time, she reentered the bedroom, repositioned the phone and started the video recording again. When she watched the videos later that day, she saw Montoya and Jane Doe 2 in them.^[7]

e. Jane Doe 1's testimony regarding the incident with Jane Doe 2 at Montoya's worksite

Jane Doe 1 also testified that, in October 2019, she and Jane Doe 2 went to a barbecue that was held in the evening at Montoya's workplace. At the site, Jane Doe 1 and Jane Doe 2 rode with Montoya in a golf cart, far away from the party. They joined Montoya in a field while he worked on some pipes. Jane Doe 2 told Montoya to pull down his pants, and he pulled down his pants and underwear. Jane Doe 1 could see Montoya's penis because he shined his flashlight on it. Montoya told Jane Doe 2 to pull down her pants and she did. Jane Doe 2 told Jane Doe 1 to pull down her pants as well, but Jane Doe 1 refused.

They all rode back to Montoya's car in the golf cart and got inside the car. Jane Doe 1 sat in the passenger's seat while Montoya sat in the driver's seat. Jane Doe 2 climbed between Montoya and Jane Doe 1. Jane Doe 1 saw Montoya pull Jane Doe 2's pants down and heard him unbuckle his belt.^[8] Jane Doe 2 was lying on her side with Montoya reclined behind her, both facing Jane Doe 1. Montoya and Jane Doe 2 were "doing it," and the car moved "like if there was an earthquake." After about five minutes of this, Jane Doe 1 got out of the car, but Montoya and Jane Doe 2 remained inside.

f. Discovery of cellphone video and Montoya's custodial interview

In November 2019, A.C. showed Maria C. a video on Jane Doe 1's phone showing Montoya and Jane Doe 2 engaging in sexual conduct.^[9] Maria C. called the police. Salinas police officers viewed the cell phone video and...