The opinion
Filed 10/10/24 P. v. Olivares CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B329148
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA121162)
v.
VICTOR OLIVARES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Rogelio Delgado, Judge. Affirmed in part,
reversed in part, and remanded.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and John Yang, Deputy Attorney General, for
Plaintiff and Respondent.
******
A jury convicted Victor Olivares (defendant) of committing
multiple sexual crimes against his stepdaughter and step-
granddaughter when they were young children. On appeal,
defendant argues that (1) one of his convictions is unsupported by
substantial evidence,1 and (2) the trial court failed to recognize it
had discretion to impose the sentences for two of his convictions
concurrently. We reject defendant’s first argument but agree
with the People’s concession of error as to the second. We
accordingly affirm defendant’s convictions, but vacate his
sentence and remand for the trial court to exercise its discretion
whether to impose the sentences for the two lewd act counts
concurrently or consecutively.
1 The briefing from both parties on this issue was woefully
deficient. Their briefs omitted critical facts and asked us to
evaluate the sufficiency of the evidence against a crime other
than the one actually at issue; the People even misstate one
victim’s birthdate with a date that would exonerate defendant of
most of his crimes. By submitting such deficient and sloppy
briefing, the parties effectively told this Court, “Here’s an issue
that we have inaccurately and incompletely presented; now
figure it out yourselves.” This barely qualifies as issue spotting;
it certainly is not advocacy.
2
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Brenda M. has several children, including a daughter
named Destiny who was born in July 2011. Brenda also has
several grandchildren, including a granddaughter named
Bethany who was born in August 2014.
Defendant married Brenda in 2015, and moved in with her.
At that time, defendant was 38 years old.
Between July 2014 and October 2018, defendant committed
several sexual acts against Destiny. As drawn from a forensic
interview of Destiny, a summary of Destiny’s preliminary hearing
testimony, and Destiny’s testimony at trial, those acts were
comprised of the following:
— When Destiny was five years old, defendant began
“touch[ing]” her “private part” where she “pee[d].”
— On one occasion, defendant entered a dark room
where Destiny was sleeping, took off her clothes, started touching
her “private” part, and told Destiny to kiss him. He then showed
Destiny his “body part . . . that pees,” and instructed her to touch
that part, which she did because she was “scared.” Defendant
then “held” her hand under his while moving it up and down
along his penis. He then admonished Destiny not to tell anyone.
— On multiple other occasions, defendant would “lick[]
[Destiny’s] body part” “that pees.” She would “cry[]” as he did it.
— In 2018, defendant not only touched “his private
part” with Destiny’s “private part,” but also put “his private part
that pees . . . into her private part that pees.” Destiny told her
grandmother and others that this caused her “part” to “hurt[]”
and “burn[].”
3
In the summer of 2018, defendant also committed sex acts
against Bethany. (The details of these acts are not at issue on
appeal, so we will not recount them.)
II. Procedural Background
A. Charges
The People charged defendant with several crimes. As to
Destiny and as to the time frame noted above, the People charged
defendant with (1) committing lewd acts (Pen. Code, § 288, subd.
(a)),2 (2) oral copulation with a child 10 years old or younger (§
288.7, subd. (b)), and (3) “sexual intercourse” with a child 10
years old or younger (§ 288.7, subd. (a)). As to Bethany and as to
the time frame noted above, the People charged defendant with
(1) committing lewd acts (§ 288, subd. (a)), and (2) oral copulation
with a child 10 years old or younger (§ 288.7, subd. (b)). As to the
two lewd acts counts, the People alleged that defendant
committed those crimes against multiple victims under the One
Strike Law (§ 667.61, subd. (i)), and that both victims were under
14 years old at the time of the crimes (§ 667.61, subd. (j)(2)).
B. Trial
After a mistrial was declared due to juror misconduct, the
matter proceeded to trial a second time in April 2023.
While testifying, Destiny recalled the incidents in which
defendant touched her “private part,” the incident in which
defendant put her hand on his “private part” in an up-and-down
motion, and the multiple incidents in which defendant licked her
“private part.” However, Destiny testified it was “hard to
remember everything,” explained that she did not like
remembering the incidents and had “tried to forget” them, but
2 All further statutory references are to the Penal Code
unless otherwise indicated.
4
promised that she was “doing [her] best” to remember while
testifying.
The People thereafter called the investigating officer to
recount Destiny’s preliminary hearing testimony, during which
Destiny “mention[ed] that [defendant’s] private part that pees
went into her private part that pees.” The sole objection to this
testimony was that the examination was “leading”; when the
People responded, “[i]t’s [a] consistent statement,” the trial court
stated, “[g]o ahead.”
The People also introduced the transcript from an October
2018 forensic interview of Destiny, during which she reported to
the interviewer (just as Destiny testified at trial that she
reported to her grandmother) that her “private [part]” “started
hurting” after the most recent incident.
The jury found defendant guilty of all charged counts and
found true all allegations.
C. Sentencing
The trial court imposed a prison sentence of 50 years to life.
Specifically, the court applied the One Strike Law (§ 667.61,
subds. (a), (c) & (d)(7)) to impose sentences of 25 years to life on
each lewd act count because both Destiny and Bethany were
under the age of 14 at the time of defendant’s sex acts against
them. The court then ran those sentences consecutively, stating
“under 667.61 [subdivision] (e) [the sex acts were] committed
against . . . multiple victims, different victims, which would
require, pursuant to the statute, consecutive sentences.” The
court imposed sentences of 15 years to life on the remaining
counts, and elected to run them concurrently to the 50-year-to-life
sentence.
5
D. Appeal
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that (1) his conviction for sexual
intercourse with a child 10 years old or younger must be reversed
for insufficiency of the evidence, and (2) the trial court erred in
running the sentences for the two lewd act counts consecutively
without recognizing it had discretion to run them concurrently.
I. Sufficiency of the Evidence
To prove the crime of sexual intercourse with a child 10
years old or younger, the People must prove (1) “[t]he defendant
engaged in a[n] act of sexual intercourse . . . with the victim,” (2)
“when the defendant did so, the victim was 10 years of age or
younger,” and (3) “at the time of the act, the defendant was at
least 18 years old.” (People v. Mendoza (2015) 240 Cal.App.4th
72, 79; CALCRIM No. 1127; see, § 288.7, subd. (a).)3 “Sexual
intercourse” means “any penetration, no matter how slight, of the
vagina or genitalia by the penis.” (Mendoza, at p. 79, italics
added; People v. Dunn (2012) 205 Cal.App.4th 1086, 1097; see §
263 [“Any sexual penetration, however slight, is sufficient to
complete the crime”].) Because penetration of the genitalia is
sufficient, penetration of the labia majora is sufficient; there need
not also be penetration of the vagina. (Dunn, at p. 1097; People v.
Quintana (2001) 89 Cal.App.4th 1362, 1370-1371.)
In evaluating whether sufficient evidence supports a
conviction, we ask only whether the record as a whole “‘“discloses
substantial evidence—that is, evidence which is reasonable,
3 Both parties’ briefs mistakenly assert that the crime at
issue is oral copulation with a child 10 years old or younger under
section 288.7, subd. (b).
6
credible, and of solid value—such that a reasonable trier of fact
could find [the penetration element] beyond a reasonable
doubt.”’” (People v. Ghobrial (2018) 5 Cal.5th 250, 277, italics
omitted.) In undertaking this inquiry, we may not reweigh the
evidence; instead, we must review the evidence in the light most
favorable to the jury’s verdict and resolve all conflicting
inferences and credibility findings in favor of that verdict. (In re
Caden C. (2021) 11 Cal.5th 614, 640; People v. Reed (2018) 4
Cal.5th 989, 1006.)
Substantial evidence supports the conviction for sexual
intercourse with a minor 10 years of age or younger by a person
older than 18. It is undisputed that Destiny was 10 years old or
younger and that defendant was in his thirties at the time of this
crime. There is also evidence from which a reasonable trier of
fact could find penetration (and hence sexual intercourse) beyond
a reasonable doubt—namely, Destiny’s preliminary hearing
testimony that defendant’s “private part that pees went into her
private part that pees” (italics added), coupled with her testimony
that she felt pain. This quantum of evidence is comparable to
evidence that has been found to be sufficient proof of penetration
in other cases. (People v. Karsai (1982) 131 Cal.App.3d 224, 233
[victim’s testimony that defendant went “between [her] lips” and
that it “hurt”; sufficient evidence of penetration], disapproved on
other grounds, People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8;
see also, People v. Thomas (1986) 180 Cal.App.3d 47, 55-56
[victim’s testimony that defendant “tried to enter” anus and that
it “hurt”; sufficient evidence of penetration]; People v. Martinez
(1986) 188 Cal.App.3d 19, 25 [same]; People v. Gonzalez (1983)
141 Cal.App.3d 786, 789-790 [victim’s testimony that defendant
“tried to enter a little bit” and that it caused “a lot of pain”;
7
sufficient evidence of penetration], disapproved on other grounds,
People v. Kurtzman (1988) 46 Cal.3d 322, 330.) Because
penetration is established by insertion of the penis between the
labia majora, the examination by Destiny’s pediatrician showing
an absence of evidence of damage to Destiny’s hymen or other
physical damage to her genitalia does not render Destiny’s
testimony incredible (and hence unable to constitute substantial
evidence). Similarly, the People’s expert’s testimony that the
pain Destiny felt could have resulted from insertion of
defendant’s penis between Destiny’s labia majora or between her
legs is not inconsistent with Destiny’s testimony that she felt
defendant’s penis go “into” her “private part.”
Defendant resists this conclusion with two arguments.
First, defendant argues that the sole evidence that
defendant’s penis “went into” Destiny’s “private part” came from
Destiny’s preliminary hearing testimony, that this testimony
should have been excluded from evidence as hearsay, and that
the remaining evidence is insufficient to establish penetration.
We reject this argument for two reasons.
To begin, defendant forfeited the hearsay objection he
raises now by not objecting on hearsay grounds below. (Evid.
Code, § 353; People v. Dennis (1998) 17 Cal.4th 468, 530
[objection on the basis of “leading” does not preserve objection on
the basis of “hearsay”].) Contrary to what defendant urges, this
is not a case where we can overlook the improper ground for the
objection because the court nevertheless understood the proper
ground on its own; here, all the court stated was “[g]o ahead.”
(Cf. People v. Scott (1978) 21 Cal.3d 284, 290.)
Further, defendant’s hearsay objection lacks merit because
Destiny’s preliminary hearing testimony was admissible under
8
the former testimony exception to the hearsay rule.4 (Evid. Code,
§§ 1290-1292.) Under that exception, the “former testimony” of a
witness—which includes a witness’s testimony at a preliminary
hearing (id., § 1290, subd. (a))—is admissible under the hearsay
rule if that testimony is (1) admitted against a party who “had
the right and opportunity to cross-examine the declarant [at the
prior hearing] with an interest and motive similar to that which
he has at the [current] hearing,” and (2) the declarant is
“unavailable as a witness” at the current hearing. (Id., § 1291,
subd. (a)(2).) Here, Destiny’s preliminary hearing testimony is
being admitted against defendant, who was a party to the
preliminary hearing and who had the same motive and
opportunity to cross-examine her at that prior hearing. (Accord,
People v. Stritzinger (1983) 34 Cal.3d 505, 515-516 [motive and
opportunity elements satisfied when introducing a witness’s
preliminary hearing testimony against a defendant at trial].)
Moreover, Destiny’s genuine lack of memory about the incident in
which defendant penetrated her renders her unavailable as a
witness as to that incident. (People v. Alcala (1992) 4 Cal.4th
742, 774-775, 778-780 [genuine lack of memory renders witness
unavailable under former testimony exception]; People v. Price
(1991) 1 Cal.4th 324, 415 [assuming this to be true]; cf. People v.
Hawthorne (1992) 4 Cal.4th 43, 55 [deferring to trial court’s
“implied[] determin[ation]” that witness’s lack of memory did not
render him unavailable]; People v. Coffman and Marlow (2004)
4 Because we conclude this exception applies, we need not
address the parties’ arguments that the prior consistent
statement exception or prior inconsistent statement exception
applies. As the parties only identified these possible exceptions,
we solicited supplemental briefing on the applicability of the
former testimony exception.
9
34 Cal.4th 1, 79-80 [feigned lack of memory does not render
witness unavailable].)5 Contrary to what defendant asserts, a
witness’s lack of memory need not be total and need not be
accompanied by expert testimony before that witness’s genuine
inability to recall a separate and specific incident renders her
unavailable as to her testimony about that incident. (Cf. Price, at
p. 415 [genuine lack of “memory of certain details” of an incident
did not render witness unavailable when “he recalled far too
much” about the incident]; Evid. Code, § 240, subd. (c) [expert
testimony “may” be used to establish unavailability].) Defendant
more globally criticizes the prosecutor for not more effectively
arguing in favor of the former testimony exception at trial, but
the prosecutor had no reason to do so in light of defendant’s
failure to object at trial on hearsay grounds. And although the
People elected to introduce Destiny’s former testimony through
the investigating officer who heard that testimony rather than
through the preliminary hearing transcript, this is of no moment
because the officer was a percipient witness to that testimony
5 Although some cases hold that a witness’s genuine lack of
memory does not render her unavailable for purposes of
assessing whether a defendant had an opportunity to cross-
examine the witness at trial as required by the Confrontation
Clause (e.g., People v. Noriega (2015) 237 Cal.App.4th 991, 1001),
that is a separate issue from whether a witness’s genuine lack of
memory at trial renders the witness unavailable for purposes of
admitting her testimony under the former testimony exception
(People v. Perez (2000) 82 Cal.App.4th 760, 767, fn. 2 [noting this
distinction]).
10
and because defendant has not suggested that the officer’s
recounting of Destiny’s testimony was inaccurate.6
Second, defendant argues that even if Destiny’s
preliminary hearing testimony is considered, the evidence of
penetration is still not “precise and specific” within the meaning
of People v. Paz (2017) 10 Cal.App.5th 1023, 1038. Borrowing
from out-of-state authority, Paz adopted a rule that “prosecutors
must elicit precise and specific testimony to prove the required
penetration beyond a reasonable doubt” rather than “us[ing]
vague, euphemistic language.” (Paz, at p. 1038.) Even if we
assume Paz properly states the law, its standard was met here
because the sole issue is whether defendant penetrated Destiny’s
genitalia and because Destiny’s testimony that his “private part”
“went into” her “private part” is specific enough to establish the
fact of such penetration. While the use of phrases like “private
part” are not anatomically precise, Destiny was six or seven years
old at the time of the incident and 11 years old at the time of
trial; to require greater medical precision of such young witnesses
would effectively immunize those who prey on the youngest of
victims. (People v. Jones (1990) 51 Cal.3d 294, 299-300
[convictions for lewd acts under section 288 may properly be
based on “nonspecific” or “‘generic’” testimony from the victim].)
II. Sentencing
As the People concede, the trial court appeared to labor
under the misconception that it was required to impose
6 Further, because the officer testified from his own memory
and was not merely summarizing the transcript of the
preliminary hearing, there is no secondary evidence issue. (Evid.
Code, § 1521 [secondary evidence rule only applies when a
witness testifies to the “content of a writing”].)
11
consecutive sentences for the two lewd act counts due to the
jury’s finding that defendant committed those two crimes against
multiple victims. Although the imposition of consecutive
sentences is mandatory under the One Strike Law if a defendant
commits certain sex crimes against multiple victims (§ 667.61,
subd. (i)), the crimes to which this mandate applies are
statutorily enumerated and the crime of committing lewd acts is
not on that enumerated list. (§§ 667, subd. (i) [applying rule of
consecutive sentences to crimes listed in subdivisions (c)(1)
through (c)(7); id., subd. (c)(8) [listing committing a lewd act].)
Where consecutive sentences are not mandated, the trial court
retains the discretion to impose consecutive or concurrent
sentences. (People v. Valdez (2011) 193 Cal.App.4th 1515, 1524
[so holding].) Because the trial court here did not appreciate that
it had this discretion, we remand to allow the court to exercise it
in the first instance. (See People v. Coelho (2001) 89 Cal.App.4th
861, 889.)
DISPOSITION
The convictions are affirmed. The sentence is vacated, and
the matter remanded for the trial court to exercise its discretion
whether to run the 25 years to life sentences for the two counts of
lewd acts consecutively or concurrently.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
12
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
13