People v. Zepeda
People v. Zepeda
Opinion of the Court
*781*212Defendant Julio Cesar Olivera Zepeda appeals a judgment entered upon a jury verdict finding him guilty of aggravated sexual *213assault of a child ( Pen. Code, 1 § 269, subd. (a)(4) ), forcible lewd acts on a child (§ 288, subd. (b)(1) ), and continuous sexual abuse of a child (§ 288.5). He contends the evidence is insufficient to support a finding that he committed four of the crimes through force, violence, fear, or duress, and that the trial court erred in instructing the jury as to another of the counts. We shall affirm the judgment.
I. BACKGROUND
Defendant was the stepfather of the victim of his crimes (Minor). He and Minor's mother (Mother) married in 2009. The events in question took place in late 2013 and early 2014, when Minor was 10 and 11 years old.
Defendant was about 5 feet 11 inches or six feet tall, and weighed approximately 200 pounds. Minor was approximately four and a half feet tall and weighed 80 or 90 pounds.
Minor's Testimony at Trial
Minor shared a bedroom with her younger sister (Sister), and defendant shared a bedroom with Minor's mother (Mother).
One night, while Mother was in the shower and Sister was in bed, Minor was on a small couch with defendant, watching him play a video game. Defendant told Minor, "Let's play a game." He touched her "privates," underneath her clothing, with his finger, and rubbed her, until Mother got out of the shower.
Defendant touched Minor on other occasions. Once, when Minor was 11 years old, he touched her uncovered "private" with his "private."
Minor's Interview
The jury saw a recording of a forensic interview Minor had with a social worker in February 2014. Minor said defendant had touched her "private" more than one time, sometimes when Mother or Sister were showering. A week or two before the interview, defendant had been playing a video game, *214and he paused the game, got off the bed, moved her to the other side of the bed, "squished" her toward him, and pulled her pants down. He put his hand between her legs, then "started putting his mouth," or licking her after her underwear had been pulled off. Then he put his "private" into Minor's "private," and "started moving it around, like a worm" with his hand; it also touched her anal area. Defendant asked Minor if she liked it, but she did not respond, thinking that if she said yes, he would continue, and if she said no, he would have continued until she said yes.
Minor told the interviewer that sometimes defendant rubbed her "front part"
*782with his finger, and it would sometimes hurt her.
Minor said defendant touched her approximately twice a week.
The last time defendant touched Minor, she was sleeping on the same mattress as Sister. Minor was against the wall to avoid being close to defendant. While Mother and Sister were sleeping, defendant moved Sister out of the way, moved Minor closer to him, spread her legs, and "use[d] his hand" and did "the licking."
Minor said she was afraid to tell anyone what had happened because she did not know what defendant might do to her, Mother, or Sister; she was concerned he might abuse Sister as well.
*215Defendant's Interview
Defendant spoke with two police detectives after being read his rights.
Upon further questioning, defendant said he had touched Minor with his hands or mouth "[a]round five" times. He later said he had touched her vagina with his hand five or six times, skin to skin. The first time, he was picking Sister up, and Minor wanted him to pick her up as well. He grabbed her from behind and put her on the bed, and touched her vagina. Another time, he was tickling Minor while playing with her and Sister, and he touched Minor's vagina, underneath her pants. Another time, he touched "[t]he top" with his penis. Defendant said he had touched Minor's vagina with his mouth once or twice; one of those times had been "in top of the clothes."
Verdicts
The jury found defendant guilty of two counts of aggravated sexual assault of a *783child-oral copulation ( § 269, subd. (a)(4) ; counts two and three); seven counts of committing a forcible lewd act on a child (§ 288, subd. (b)(1); counts four through ten); and one count of continuous sexual abuse of a child (§ 288.5; count twelve). Counts four through seven were based on four instances of defendant touching Minor's vagina; count eight was based on Minor's hand touching defendant's penis; count nine was based on defendant's penis touching her vagina; and count ten was based on his penis touching her anus. The trial court sentenced defendant to a total term of 56 years plus 30 years to life.
II. DISCUSSION
A. Sufficiency of Evidence of Force or Duress
During its deliberations, the jury sent a note to the court asking, in connection with the second count of oral copulation (count three), "Definition of oral copulation: [¶] 1. [D]oes this include over the top of clothing?" The trial court referred the jury to the general instructions on oral copulation, which correctly stated, as pertinent here, "Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required." (See People v. Grim (1992)
Defendant notes that he stated in his interview that he had touched Minor's vagina with his mouth once or twice, and that one of those incidents was "in top of the clothes." He contends that the jury's question indicates it had his statement in mind and that the trial court should have instructed the jury that oral copulation requires skin-to-skin contact as a matter of law. He argues we should therefore reverse the verdict on count three.
We disagree. The parties have drawn our attention to no published cases in this state considering whether the presence of clothing defeats a charge of oral copulation, and our own research has disclosed none. However, we are guided by People v. Ribera (2005)
For this final point, the court in Ribera relied on State v. Pearson (Iowa 1994)
This result is consistent with California law concluding contact through clothing constitutes sexual contact for purposes of another statutory scheme. In People v. Whitlock (2003)
*218In light of these authorities, we conclude the trial court properly treated the question of whether contact through clothing constituted oral copulation as one of fact for the jury. As the court noted, clothing may consist of something as flimsy as nylon pantyhose or underwear, or as substantial as bomb disposal clothing. Whether the clothing prevented "contact" may *785properly be considered on a case-by-case basis.
III. DISPOSITION
The judgment is affirmed.
We concur:
Streeter, Acting P.J.
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Minor was shown a drawing of a child and asked to circle the area defendant touched; she circled the front genital area.
Shown a drawing of a male, Minor circled the genitals to indicate the part of defendant's body that touched her, and she said she preferred to call it the "private."
She also stated he sometimes would touch her chest area and "squeeze it."
It appears the abuse began a couple of months before Christmas 2013 and continued until Minor reported it in early February 2014. Minor turned 11 in January 2014.
The interview was conducted in a combination of English and Spanish, defendant's native language.
See footnote *, ante .
Defense counsel did not object to the court's response to the jury's question. Having failed to do so, defendant waived the issue. (See People v. Rodrigues (1994)
Iowa Code section 702.17 provides that a number of activities constitute sex acts, among them "[c]ontact between the mouth and genitalia."
Defendant does not contend that the evidence is insufficient to support two convictions of oral copulation.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.