People v. Perez-Robles

95 Cal.App.5th 222

313 Cal.Rptr.3d 372

The PEOPLE, Plaintiff and Respondent,

v.Fermin PEREZ-ROBLES, Defendant and Appellant.

C095414

Court of Appeal, Third District, California.

Filed September 6, 2023

As Modified on Denial of Rehearing September 18, 2023

Certified for Partial Publication.^*

Charles M. Bonneau, Jr., Retained Counsel for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.

EARL, P. J.

Defendant Fermin Perez-Robles, a massage therapist, was convicted by a jury on 16 counts of sexual penetration and sexual battery involving six clients and sentenced to 15 years in prison. He argues (1) the evidence is insufficient to support his conviction on 10 counts, including those for sexual battery by restraint; (2) the jury was not properly instructed on lesser included offenses on four counts; (3) the jury was improperly instructed on using other charged sex offenses as propensity evidence; (4) the prosecutor misstated the law during closing argument; and (5) the imposition of the upper term sentence on one count must be reversed and remanded based on recent changes to Penal Code section 1170 (further undesignated statutory references are to the Penal Code). We agree the evidence is insufficient to support one count (count 4); although there was sufficient evidence of restraint, the jury should have been instructed on lesser included offenses on two counts (counts 14 & 20); and the imposition of the upper term sentence on count 11 must be vacated and remanded for resentencing. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant is a massage therapist. In 2011, he opened a business called Heal the Body inside of a shopping mall. The business closed in around 2014, and defendant began doing massages out of his home. In early 2019, he began working at Woodland Chiropractic and Wellness, a business owned by a chiropractor named Dr. James Newell, which we will refer to as the "Wellness Center."

In February 2021, defendant was charged with numerous counts of sexual penetration and sexual battery. The charging document was amended several times, and by the time the case went to trial, there were a total of 38 counts involving nine clients. Although the specifics were different as to each victim, all of them claimed defendant touched them inappropriately during a massage. We will discuss the relevant facts regarding the specific counts in the discussion section, below.

During trial, the prosecutor dismissed three of the 38 counts, and 35 counts were submitted to the jury. The jury found defendant guilty on 16 counts involving six victims, as follows: counts 3 and 4, sexual penetration by force ( § 289, subd. (a)(1)(A) ), involving victim R.B.; count 7, sexual battery by misrepresentation of professional purpose ( § 243.4, subd. (c) ), involving victim A.G.; count 11, sexual penetration by misrepresentation of professional purpose ( § 289, subd. (d) ), involving victim E.M.; count 14, sexual battery while the victim is restrained ( § 243.4, subd. (a) ), and count 15, misdemeanor sexual battery ( § 243.4, subd. (e)(1) ), involving victim D.E.; count 20, sexual battery while the victim is restrained ( § 243.4, subd. (a) ), and counts 21 and 22, sexual battery by misrepresentation of professional purpose ( § 243.4, subd. (c) ), involving victim C.E.; and counts 30 through 35 and 37, sexual battery by misrepresentation of professional purpose ( § 243.4, subd. (c) ), involving victim Y.G.

The jury found defendant not guilty on four counts and was unable to reach a verdict on the remaining 15 counts.

Defendant was sentenced to an aggregate term of 15 years, calculated as follows: the upper term of eight years on count 11; two years (one-third the middle term) on count 3; and one year each (one-third the middle term) on counts 7, 14, 20, 30, and 37. Defendant was also sentenced to the upper term of four years on count 22 and to 180 days in county jail on count 15, both to be served concurrently. Sentences on the remaining counts were imposed and stayed pursuant to section 654.

Defendant timely appealed.

DISCUSSION

ISufficiency of the Evidence

Defendant argues that the evidence is insufficient to support his conviction on 10 counts (counts 3, 4, 11, 14, 20, 31, 32, 33, 34, and 35).¹

"In determining the sufficiency of the evidence to support a conviction, ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " ( People v. Leon (2008) 161 Cal.App.4th 149, 156, 73 Cal.Rptr.3d 786, italics omitted.) We review "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ( People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.) "The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable. Th[is] rule is applicable to sex [offense] cases." ( People v. Scott (1978) 21 Cal.3d 284, 296, 145 Cal.Rptr. 876, 578 P.2d 123.) " ‘ "A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." ’ " ( People v. Livingston (2012) 53 Cal.4th 1145, 1170, 140 Cal.Rptr.3d 139, 274 P.3d 1132.) " ‘ " ‘If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ " ’ " ( People v. Burney (2009) 47 Cal.4th 203, 253, 97 Cal.Rptr.3d 348, 212 P.3d 639.) The "relevant question" is thus "not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt that defendant" committed the crime. ( People v. Perez (1992) 2 Cal.4th 1117, 1127, 9 Cal.Rptr.2d 577, 831 P.2d 1159.)

A.-B.^**

Unpublished Text Follows

In counts 3 and 4, defendant was convicted of sexual penetration of R.B. by force, violence, duress, menace, or fear, in violation of section 289, subdivision (a)(1)(A).² He argues there is insufficient evidence of force, violence, duress, menace, or fear as to both counts, and insufficient evidence of sexual penetration as to count 4.

1. Relevant facts

R.B. received two massages from defendant in the summer of 2020. Counts 3 and 4 both involved the second massage, and our description of the first massage is thus abbreviated.

R.B. had a neck injury and was referred to the Wellness Center by her father, who had been a patient of Dr. Newell's for years. R.B. walked into the clinic on June 22 without an appointment, and was able to see defendant that same day. She offered conflicting testimony on whether defendant touched her labia during the first massage. On re-direct examination, she stated she was "unsure right now" whether he did so. At the end of the first massage, R.B.’s neck felt a little better, and she scheduled a second massage.

The second massage started the same way the first one did. Defendant left the room while R.B. got undressed, lay facedown on the table, and covered herself with a sheet. Defendant came back into the room and began massaging R.B. from her shoulders to her lower back. While massaging her arms, he lifted them in a way that exposed her breasts, and she could feel air on her nipple area. Defendant then moved to her legs. R.B. testified that when he moved the sheet to the inside of her legs, it did not feel as secure as it had during the first massage. He massaged up and down each leg several times and touched her labia. He then put his left hand underneath her pelvis and placed one of his fingers directly on her clitoris. He started moving his fingers back and forth on her clitoris. He did this about five times before R.B. realized she had gotten excited and "wet down there." She testified she "blanked for maybe one or two rubs, and then I kind of came to and was like, wait a minute, I'm getting aroused in a professional massage. This has to stop." She said, "Okay," and defendant stopped.

R.B. was asked what was going through her mind when this was happening, and she responded, "I ... was ... really ... scared because I was like, well, I'm laying on the table naked. I really don't know what's going on. I don't know ... if that was supposed to happen or not. But I knew I was sexually aroused, which I knew was not supposed to happen in a professional setting, professional massage. So I was kind of just like trying to play dead in a sense and just stay there just because I was so scared and nervous about what was going on. [¶] ... [¶] ... I felt like if he could touch me in what I think is inappropriate, there's no telling what else he could do to me. [¶] I know the last time when I made the appointment around the same time, there was nobody else in the office because it was lunchtime. So this appointment was kind of the same timeframe, so I figured no one else was in the office if anything was to happen. Again, I was naked. I honestly don't know if I could fight him off. I am in his territory, his domain. And again, if he feels he can touch me in an inappropriate way, there's no telling what else he could do to me."

Defendant next had R.B. turn over onto to her back and he massaged her arms and chest area. As he massaged her chest, his hands went around both breasts and he "grope[d]" them. R.B. did not say anything, but just lay there "playing dead." When asked what she was thinking when defendant groped her breasts, she responded, "I...