People v. Valdovinos

1

THE PEOPLE, Plaintiff and Respondent, v. FERNANDO VALDOVINOS, Defendant and Appellant.

G062584

California Court of Appeals, Fourth District, Third Division

October 30, 2024

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 20CF0967, Lance P. Jensen, Judge.

Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Evan Stele, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOTOIKE, J.

Following a bench trial, appellant Fernando Valdovinos was convicted of multiple offenses. Great bodily injury allegations and certain enhancements were also found to be true. The trial court sentenced Valdovinos to 25 years to life imprisonment under the "One Strike" law for personally inflicting great bodily injury on Jane Doe in the commission of a sex offense. (Pen. Code, § 667.61, subds. (a) &(d)(6).)^[1] On appeal, Valdovinos concedes he inflicted great bodily injuries on Jane Doe but argues the evidence was insufficient to prove it was "in the commission of" the sex offenses. We affirm because sufficient evidence supported the trial court's determination.

FACTUAL AND PROCEDURAL HISTORY

On May 1, 2020, Doe, who was then 75 years old, was found nonresponsive in bushes next to a church parking lot. She was nude from the waist down, had blood on her face, both of her eyes were swollen, and there was a pool of blood on the ground underneath her head. Doe lived in her vehicle and often parked her vehicle overnight at the same church, but her vehicle was not there when Doe was found.

Doe was transported to a hospital where a forensic nurse conducted a physical examination of her. Doe was unconscious, sedated and intubated during the exam. She had multiple injuries including, inter alia, swelling and bruising to both eyes, a hemorrhage to her left eye, a laceration to the side of her head, bruising to both sides of her neck and under the chin, bruising to her breast, and injuries to her genitals.

A surveillance camera video, retrieved from the business adjacent to the church and timestamped the evening of April 30, 2020, showed a subject, later identified as Valdovinos, talking to Doe near the rear of her vehicle. The two then walk toward the front of the vehicle and out of the surveillance camera's view. Approximately 20 to 25 minutes later, the surveillance camera video showed Valdovinos walk back into view and out toward the street. He then returns into view with an additional woman and they leave in Doe's vehicle.

On May 2, 2020, police detained Valdovinos while he was driving Doe's vehicle. In an interview with police, Valdovinos initially claimed he obtained the vehicle for someone named Mike. Valdovinos stated Mike was forcing him to do things, but Valdovinos later admitted there was no Mike. Valdovinos said he was in the church parking lot on April 30, 2020, to steal Doe's vehicle. According to Valdovinos, after telling Doe he was going to steal her vehicle, Doe said taking her vehicle was a sin and he should know better because he knows about God. Valdovinos told the officer he told Doe he knew it was a sin and knew about God. Valdovinos also told the officer Doe asked him what God was telling him to do, to which he responded, "'God [was] telling [him] to beat [her] up.'" Valdovinos recounted, when Doe asked him if it was "'going to hurt,'" he responded "'[y]eah.'"

Valdovinos told the officer he threw Doe to the ground, punched her twice in the face, and she appeared to be unconscious. He said when he saw Doe's blood, he had a flashback of being raped by his stepfather. He became aroused, touched Doe's breast, and pulled down her pants. Valdovinos said he tried to rape Doe but could not become erect, so he digitally penetrated her while he masturbated and then ejaculated into a nearby bush.

In an information, the district attorney charged Valdovinos with five counts: assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 1); sexual penetration by foreign object and force (§ 289, subd. (a)(1)(A); count 2); attempted forcible rape (§§ 664, subd. (a), 261, subd. (a)(2); count 3); carjacking (§ 215, subd. (a); count 4); and unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a); count 5).^[2] The information also alleged Valdovinos personally inflicted great bodily injury in the commission of the offense in count 2 (Pen. Code, § 667.61, subds. (a) &(d)(6)) and during the commission and attempted commission of the offense in count 3 (§ 12022.8). Additionally, as to counts 1, 3, and 4, it alleged Valdovinos personally inflicted great bodily injury on Doe, who was 70 years or older (§ 12022.7, subd. (c)).

Valdovinos waived his right to a jury trial and the case proceeded to a bench trial. Multiple witnesses testified, including several police officers, the forensic nurse who performed the physical examination of Doe, and the person who first found Doe in the bushes. Valdovinos moved for judgment of acquittal under section 1118 as to the section 667.61 allegation for count 2 and the sections 12022.7 and 12022.8 enhancements for count 3. After reviewing supplemental briefing from the parties and hearing argument, the trial court denied Valdovinos's motion.

The trial court found Valdovinos guilty on counts 1 through 4. It also found the section 667.61, subdivisions (a) and (d)(6) allegation for count 2 to be true as well as all the enhancements. Relevant to this appeal, the trial court selected count 2 as the principal term and sentenced Valdovinos to 25 years to life imprisonment pursuant to section 667.61.

DISCUSSION

Under section 667.61, subdivisions (a) and (d)(6), a defendant who is convicted of certain sex offenses shall be sentenced to 25 years to life imprisonment if "[t]he defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of [s]ection . . . 12022.7, or 12022.8."^[3] On appeal, Valdovinos concedes he inflicted great bodily injuries on Doe,^[4] but he argues the evidence was insufficient to prove great bodily injury was inflicted in the commission of the sex offenses. Thus, he contends the trial court erred in finding true the great bodily injury allegation for count 2 (§ 667.61 subdivisions (a) &(d)(6)) and the great bodily injury enhancements for count 3 (§§ 12022.7, subd. (c), 12022.8^[5]). We disagree.

Whether Valdovinos inflicted great bodily injury in the commission of the sex offenses is a factual issue for the trier of fact to decide. (See People v. Masbruch (1996) 13 Cal.4th 1001, 1007 (Masbruch) [whether firearm was used '"in the commission of' an enumerated sex offense is for the trier of fact to decide"].) "In reviewing a criminal conviction challenged as lacking evidentiary support, '"the court must 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."' [Citation.] The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation], and to special circumstance allegations [citation]." (People v. Maury (2003) 30 Cal.4th 342, 396.) "To the extent defendant's argument implicates statutory interpretation, our review is de novo." (People v. Elder (2014) 227 Cal.App.4th 411, 417 (Elder).)

"'"[I]n the commission of" has been given an expansive, not a tailored meaning.' [Citation.] '"[I]n the commission of" is not the same as "while committing," "while engaged in," or "in pursuance."'" (People v. Calles (2012) 209 Cal.App.4th 1200, 1222 (Calles).) As the California Supreme Court has explained "[i]n the case of a weapons-use enhancement, such use may be deemed to occur 'in the commission of' the offense if it occurred before, during, or after the technical completion of the felonious sex act." (People v. Jones (2001) 25 Cal.4th 98, 109-110 (Jones), superseded by statute on another ground as stated in People v. Andrade (2015) 238 Cal.App.4th 1274, 1307.) In Jones, our Supreme Court concluded the language "'in the commission of'" in the weapons-use provisions at issue there had the same meaning as the phrase under the felony-murder provisions. (Jones, supra, at p. 109.) Notably, Jones described the felony-murder doctrine as focusing, not on semantics or simple chronology, but instead on the relationship between the killing and underlying felony. (Id. at pp. 109-110 [stating the operative question in Jones was "whether the sex offense posed a greater threat of harm-i.e., was more culpable-because the defendant used a deadly weapon to threaten or maintain control over his victim"].)

Additionally in Masbruch, the defendant pointed a gun at a woman, tied her and her mother up, spent an hour torturing and robbing them, and then raped and sodomized the woman. (Masbruch, supra, 13 Cal.4th at pp. 1004-1005, 1011.) Notwithstanding the passage of time between the display of the gun and the sex offenses, the California Supreme Court concluded the evidence was sufficient to support a finding the gun was used in the commission of the sex offenses. (Id. at p. 1011.) As our high court explained, "[i]n considering whether a gun use occurred, the jury may consider a 'video' of the entire encounter; it is not limited to a 'snapshot' of the moments immediately preceding a sex offense. Thus, a jury could reasonably conclude that although defendant's presence with the...