People v. Pineda CA2/4

Filed 12/23/20 P. v. Pineda CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR

THE PEOPLE, B300928

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA116196
v.

PEDROS ROJAS PINEDA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Juan Carlos Dominguez, Judge. Affirmed.
Stephen Temko, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Roberta L. Davis and William H.
Shin, Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

Appellant and defendant Pedro Rojas Pineda was convicted
of sexual intercourse with a child ten years old or younger, sexual
penetration of a child ten years old or younger, and indecent
exposure with a prior such conviction. The child was his
daughter. He was sentenced to a term of 40 years to life in state
prison.
On appeal, Pineda argues: (1) the evidence was insufficient
to support his sexual intercourse and penetration convictions; (2)
the trial court erred by admitting testimony regarding his
daughter’s report of abuse to her friend; and (3) the trial court
erred by imposing separate punishments for his sexual
intercourse and penetration convictions. Because his arguments
are meritless, we affirm.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an
information charging Pineda with sexual intercourse or sodomy
with a child ten years old or younger (Pen. Code, § 288.7, subd.
(a);1 count one), oral copulation or sexual penetration of a child
ten years old or younger (§ 288.7, subd. (b); count two), and
indecent exposure with a prior such conviction (§ 314, subd. (1);
counts three, four, and five).
In bifurcated proceedings, Pineda waived his right to a jury
trial regarding his prior indecent exposure conviction and

1 All undesignated statutory references are to the Penal
Code.

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requested a bench trial on the issue. The trial court found Pineda
sustained such a conviction in May 2015. The jury found Pineda
guilty on all counts except count three, on which it was unable to
reach a verdict. Thereafter, the trial court granted the People’s
motion to dismiss count three.
The trial court sentenced Pineda to 40 years to life in state
prison, consisting of a term of 25 years to life on count one and a
term of 15 years to life on count two. The trial court also
sentenced Pineda to two two-year middle terms on counts four
and five, both of which were to run concurrently with his prison
terms on counts one and two. The court further ordered Pineda to
pay a $300 restitution fine. The court also imposed various other
fines and fees but either waived or stayed payment.
Pineda appealed.

FACTUAL BACKGROUND

Pineda’s daughter, who for privacy purposes we will refer
to by the fictitious name of “Jane,” was born on January 15, 2007.
In 2017, Jane lived in a two-bedroom apartment located in El
Monte with Pineda, her mother, her uncle, and her four brothers.
On September 3, 2017, Jane was playing with the
neighbor’s children, two sisters who for privacy purposes we will
refer to as “J” and “A.” While playing with J and A, Jane saw
Pineda take his penis out of his pants and show it to J and A. At
that point, the girls left and told J and A’s mother what had
happened.
Seeing Pineda expose himself to her friends also prompted
Jane to tell their mother that Pineda had been touching her
inappropriately. Later that evening, J and A’s mother told Jane’s

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mother what Jane had told her. At that point, Jane’s mother and
the neighbor girls’ mother decided to take Jane to the doctor.
Following a visit to the doctor that evening, they went to the
police.
At the police station, Jane spoke to El Monte Police
Department Officer Chris Frey. She told Officer Frey that Pineda
sexually molested her four times in the past two weeks, and that
he last touched her two days before. In describing the most recent
incident of inappropriate touching, Jane stated she was asleep
when she “woke up and noticed that [Pineda] had his hands down
her underwear and . . . had inserted one or two fingers into her
vagina.”
Pineda was arrested at his sister’s apartment in the early
morning hours of September 4, 2017.
Following Pineda’s arrest, Detective Jacob Burse spoke
with Jane. Jane related Pineda sexually molested her on multiple
occasions by digitally penetrating her vagina and inserting his
penis into her vagina.

DISCUSSION

I. Sufficiency of the Evidence
Pineda contends his convictions on counts one and two are
unsupported by substantial evidence. Specifically, he argues the
prosecution failed to prove the offenses occurred in the timeframe
alleged in the information, i.e., on or between August 13 and
September 1, 2017. The Attorney General responds the
prosecution was only required to prove Pineda committed the
offenses within the applicable ten-year limitations period, as time
is not a “material ingredient” of those crimes. (See People v.

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Garcia (2016) 247 Cal.App.4th 1013, 1022 (Garcia).) The
Attorney General therefore contends that because the evidence
demonstrates Pineda used his penis and fingers to penetrate
Jane’s vagina sometime between late 2016 and September 2017,
his convictions on counts one and two are supported by
substantial evidence. We agree with the Attorney General and
reject Pineda’s substantial evidence challenge.
Section 288.7, subdivision (a) provides: “Any person 18
years of age or older who engages in sexual intercourse . . . with a
child who is 10 years of age or younger is guilty of a felony[.]”
Section 288.7, subdivision (b) provides: “Any person 18 years of
age or older who engages in . . . sexual penetration, as defined in
Section 289, with a child who is 10 years of age or younger is
guilty of a felony[.]” Per section 289, subdivision (k)(1), “‘[s]exual
penetration’ is the act of causing the penetration, however slight,
of the genital . . . opening of any person . . . by any foreign object,
substance, instrument, or device, or by any unknown object.”
In People v. Jones (1990) 51 Cal.3d 294 (Jones), our
Supreme Court set forth the “minimum quantum of proof
necessary to support a conviction” for crimes involving sexual
abuse of a child. (Id. at p. 314.) The Court stated: “The victim, of
course, must describe the kind of act or acts committed with
sufficient specificity, both to assure that unlawful conduct indeed
has occurred and to differentiate between the various types of
proscribed conduct (e.g., lewd conduct, intercourse, oral
copulation or sodomy). Moreover, the victim must describe the
number of acts committed with sufficient certainty to support
each of the counts alleged in the information or indictment (e.g.,
‘twice a month’ or ‘every time we went camping’). Finally, the
victim must also be able to describe the general time period in

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which these acts occurred (e.g., ‘the summer before my fourth
grade,’ or ‘during each Sunday morning after he came to live with
us’), to assure the acts were committed within the applicable
limitation period. Additional details regarding the time, place or
circumstance of the various assaults may assist in assessing the
credibility or substantiality of the victim’s testimony, but are not
essential to sustain a conviction.” (Id. at p. 316.)
“In reviewing a sufficiency of evidence claim, the reviewing
court’s role is a limited one. ‘“The proper test for determining a
claim of insufficiency of evidence in a criminal case is whether, on
the entire record, a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citations.] On appeal, we
must view the evidence in the light most favorable to the People
and must presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.
[Citation.]”’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 733,
738-739.)
Applying these principles, we conclude substantial evidence
supports the jury’s finding that Pineda was guilty of sexual
intercourse with and sexual penetration of a child ten years of
age or younger. Jane testified Pineda first touched her
inappropriately when she “was nine, and . . . about to turn 10.”
He also touched her sexually after she turned ten years old.
Further, Jane told Officer Frey that Pineda sexually molested her
four times in the two weeks leading up to her interview on
September 3, 2017, and that he inserted his fingers into her
vagina two days before.
Jane testified that she slept on the floor in the same room
with her mother, father, and four brothers. At night, while Jane’s
mother was at work and her brothers were asleep, Pineda would

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grab her by the ankles while she was lying on the ground, pull
her to his side, and insert his fingers or his penis into her vagina,
causing her pain. She testified Pineda inserted his penis in her
vagina more than two times, but did not know whether there
were more than five incidents. Her testimony made it clear
Pineda touched her with his fingers more than once, but she did
not recall how many times this took place. Jane described in
detail how Pineda would touch her inappropriately with his
fingers and penis.
On this record, we conclude the evidence adequately set
forth the kind of acts committed (sexual intercourse and digital
penetration), the number of acts committed to support each of the
counts alleged (intercourse more than twice, digital penetration
at least once), and the general time period in which the acts
occurred (shortly before Jane’s tenth birthday and continuing
thereafter until she spoke with Officer Frey). Therefore, under
Jones, Pineda’s convictions on counts one and two are supported
by substantial evidence. (Jones, supra, 51 Cal.3d at p. 316.)
As noted above, the crux of Pineda’s sufficiency argument is
the prosecution was required to prove the offenses occurred “on or
between August 13, 2017 and September 1, 2017” as alleged in
the information. At the outset, we note Pineda’s argument is
unavailing with respect to his conviction on count two because, as
noted above, the evidence demonstrates he digitally penetrated
Jane’s vagina on September 1, 2017, two days before her
interview with Officer Frey.
In any event, as the Attorney General correctly points out,
the prosecution was not required to prove either of the crimes
occurred in the timeframe alleged in the information. “‘The law is
clear that, when it is charged that an offense was committed “on

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or about” a named date, the exact date need not be proved unless
the time “is a material ingredient in the offense” [citation], and
the evidence is not insufficient merely because it shows that the
offense was committed on another date.’ [Citations].” (Garcia,
supra, 247 Cal.App.4th at p. 1022.)
We are not persuaded by Pineda’s argument that Garcia
does not apply here because the information alleged the crimes
occurred “on or between” two dates instead of “on or about” a
certain date. Contrary to Pineda’s argument, even where the
information alleges an offense took place on a certain date, rather
than “on or about” that date, the prosecution is not required to
prove the crime was committed on the specified date unless time
is a material ingredient to the offense.
For example, in People v. Amy (1950) 100 Cal.App.2d 126
(Amy), the defendant was charged with two counts of violating
section 288. (Id. at p. 126.) The information alleged count one was
committed on June 20, 1949, and count two was committed on
December 23, 1949. (Id. at p. 127.) At trial, the victim testified
the first act occurred while she was on summer vacation in 1949,
and the second act occurred on a day when her mother went to
the beauty shop a week or two before Christmas. (Ibid.) The
defendant was found guilty on both counts. (Id. at p. 126.) On
appeal, the defendant argued his convictions should be
overturned because “‘there was a failure to prove a specific act on
a specified date as charged.’” (Id. at p. 127.)
The Court of Appeal rejected the defendant’s argument.
(Amy, supra, 100 Cal.App.2d at pp. 127-128.) In so doing, the
court observed “[t[he burden was on the [P]eople to prove that the
offenses occurred within the period of limitation but they are not
required to prove the date with exactness. [Citation.]” (Id. at p.

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127.) The court further noted that a variance between the
pleading and the proof should be disregarded “unless time is of
the essence of the offense,” and a challenge to such a variance
cannot be made for the first time on appeal unless the defendant
shows he was prejudiced thereby. (Id. at pp. 127-128.) Thus, the
court affirmed the convictions, reasoning: (1) the prosecution
proved the offenses were committed within the applicable
limitations period; (2) the defendant did not indicate he was
misled in making his defense; (3) the defendant did not attempt
to prove he had an alibi on either of the dates alleged; and (4) the
defendant was not in danger of double jeopardy. (Id. at p. 128.)
Here, as in Amy, the prosecution proved Pineda committed
the crimes of sexual intercourse with and sexual penetration of a
minor ten years or younger within the applicable ten-year
limitations period. (§ 801.1, subd. (b).) Neither crime requires the
wrongful act occur in a certain timeframe. (See § 288.7, subds. (a)
& (b); cf. § 288.5, subd. (a) [a person “is guilty of the offense of
continuous sexual abuse of a child” if he, “over a period of time,
not less than three months in duration, engages in three or more
acts of substantial sexual conduct with a child under the age of
14 years”].) Nor did Pineda attempt to prove an alibi. Therefore,
time was not essential to either of the offenses at issue. (People v.
Obremski (1989) 207 Cal.App.3d 1346, 1354 [“Time is essential if
the defense is alibi. [Citation.]”].) Additionally, at trial, Pineda
did not object to any variance between the information and the
evidence. On appeal, he has not argued or otherwise shown he
was prejudiced thereby.
Accordingly, for the reasons discussed above, we conclude
Pineda’s substantial evidence challenge is without merit.

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II. Admissibility of A’s Testimony Regarding Jane’s
Report of Abuse to Her
At trial, the prosecution sought to elicit testimony from A
regarding whether Jane told her about Pineda’s inappropriate
conduct. Defense counsel objected on hearsay grounds. The
prosecution responded the testimony was admissible under the
fresh complaint doctrine. After discussing the issue with counsel
in chambers, the court allowed the prosecution to lay a
foundation on when, specifically, Jane told A about the abuse.
Thereafter, the trial court overruled defense counsel’s hearsay
objection, and A testified: “[Jane] told me . . . when she would
sleep, . . . her father would touch her.”
Pineda contends the trial court erred by admitting A’s
testimony concerning Jane’s report of abuse to her because: (1)
the testimony fell outside the scope of the fresh complaint
doctrine; and (2) the testimony was inadmissible under Evidence
Code section 352.
“A trial court’s exercise of discretion in admitting or
excluding evidence is reviewable for abuse [citation] and will not
be disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice [citation].”
(People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) We address each
of Pineda’s arguments in turn below.

1. Admissibility Under Fresh Complaint Doctrine
In People v. Brown (1994) 8 Cal.4th 746 (Brown), our
Supreme Court defined the modern view of the fresh complaint
doctrine as follows: “[U]nder principles generally applicable to
the determination of evidentiary relevance and admissibility,

10
proof of an extrajudicial complaint, made by the victim of a
sexual offense, disclosing the alleged assault, may be admissible
for a limited, nonhearsay purpose—namely, to establish the fact
of, and the circumstances surrounding, the victim’s disclosure of
the assault to others—whenever the fact that the disclosure was
made and the circumstances under which it was made are
relevant to the trier of fact’s determination as to whether the
offense occurred. Under such generally applicable evidentiary
rules, the timing of a complaint (e.g., whether it was made
promptly after the incident or, rather, at a later date) and the
circumstances under which it was made (e.g., whether it was
volunteered spontaneously or, instead, was made only in
response to the inquiry of another person) are not necessarily
determinative of the admissibility of evidence of the complaint.”
(Id. at pp. 749-750, italics omitted.)
Moreover, the Court stated that to be admissible under the
fresh complaint doctrine, “[e]vidence of the victim’s report or
disclosure of the alleged offense should be limited to the fact of
the making of the complaint and other circumstances material to
[the] limited [nonhearsay] purpose [of its admission].” (Brown,
supra, 8 Cal.4th at p. 763.) The “‘fact of complaint’ [does] not
include details of the incident, but [does] include evidence
demonstrating the complaint ‘“related to the matter being
inquired into, and [was] not a complaint wholly foreign to the
subject . . . .”’ [Citation.]” (Id. at p. 756, italics omitted, quoting
People v. Burton (1961) 55 Cal.2d 328, 351 (Burton).)
Consequently, “the alleged victim’s statement of the nature of the
offense and the identity of the asserted offender, without details,
is proper. [Citations.]” (Burton, supra, 55 Cal.2d at pp. 351-352,
italics omitted.)

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 Pineda contends A’s testimony regarding Jane’s report of
abuse fell outside the scope of the fresh complaint doctrine
because the testimony impermissibly set forth the “details of
what statements were made.” We disagree.
Here, A’s testimony was limited to Jane’s statement of the
asserted offender’s identity (her father) and the nature of the
offense (inappropriate touching). Therefore, A’s testimony
properly illustrated Jane’s complaint related to the crimes
alleged. (Burton, supra, 55 Cal.2d at pp. 351-352.) No testimony
was admitted regarding Jane’s report of the specific details
pertaining to Pineda’s wrongful conduct. Indeed, when asked
whether Jane gave A any other details, A testified she did not
remember.
We reject Pineda’s contention that Brown completely
overruled all prior cases applying the fresh complaint doctrine,
such as Burton. In Brown, our Supreme Court only disapproved
earlier fresh complaint cases to the extent they: (1) supported
“the original premise and rationale underlying the fresh-
complaint doctrine,” i.e., “that it is natural for the victim of a
sexual assault to complain promptly following the assault”; and
(2) held that, to qualify as a fresh complaint, the report must
have been made within a short time following the incident in
question and not in response to questioning. (Brown, supra, 8
Cal.4th at pp. 749, 758-760, 762-763.) Of relevance to our
analysis in this case, the Court did not overrule Burton’s holding
that “although details cannot be recounted, it can be shown by
the People ‘that the complaint related to the matter being
inquired into, and was not a complaint wholly foreign to the
subject’ [citation]; that is, the alleged victim’s statement of the
nature of the offense and the identity of the asserted offender,

12
without details, is proper. [Citations.]” (Burton, supra, 55 Cal.2d
at p. 351, italics omitted; see Brown, supra, 8 Cal.4th at pp. 756,
759-763.)
Accordingly, for the reasons discussed above, we conclude
the trial court did not abuse its discretion by finding A’s
testimony concerning Jane’s report of abuse to her fell within the
fresh complaint doctrine.2

2. Admissibility Under Evidence Code Section 352
Evidence Code section 352 provides: “The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” “‘“Prejudice” in the context of Evidence
Code section 352 refers to the possibility of misuse of the
evidence—use of the evidence by the trier of fact for a purpose for
which the evidence is not properly admissible.’ [Citation.]”
(People v. Jiminez (2019) 35 Cal.App.5th 373, 390.)
Pineda contends A’s testimony concerning Jane’s report of
abuse was inadmissible under Evidence Code section 352.
Specifically, he suggests the testimony’s probative value was
substantially outweighed by the risk of undue prejudice because

2 Pineda correctly observes the trial court did not instruct
the jury that A’s testimony was to be considered only for the
limited, nonhearsay purpose of establishing the fact of, and the
circumstances surrounding, Jane’s disclosure of Pineda’s sexual
assault to her. The trial court, however, was not required to give
such an instruction, as defense counsel did not request it to do so.
(People v. Manning (2008) 165 Cal.App.4th 870, 880.)

13
Jane “had already testified that she had relayed complaints
about [Pineda’s] alleged misconduct to other people, including
[A’s] mother.” We do not agree with Pineda’s argument.
At the outset, we note defense counsel did not object to A’s
testimony regarding Jane’s report of abuse to her on Evidence
Code section 352 grounds at trial. Consequently, Pineda’s
argument on the issue has been forfeited. (People v. Williams
(1997) 16 Cal.4th 153, 206.)
In any event, even if a specific and timely objection had
been made, and Pineda had not forfeited this argument, we
discern no error. As noted above, Jane testified in detail about
Pineda’s sexual abuse. A’s testimony regarding Jane’s report of
abuse was therefore probative of Jane’s credibility. (See People v.
Ramirez (2006) 143 Cal.App.4th 1512, 1522.) Moreover, A’s
testimony on the matter consisted of a single sentence and did
not include any details. Under these circumstances, it would have
been well within the trial court’s discretion to find the probative
value of A’s testimony was not substantially outweighed by the
risk of undue prejudice.

3. Prejudice
Even assuming, arguendo, the trial court erred by
admitting A’s testimony concerning Jane’s report of abuse, we
would find no prejudice under Chapman v. Cal. (1967) 386 U.S.
18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman) or People v.
Watson (1956) 46 Cal.2d 818, 836-838 (Watson). Here, the
evidence of Pineda’s guilt was overwhelming. Again, as discussed
above, Jane testified in substantial detail about Pineda’s crimes.
The evidence also established Jane reported Pineda’s
inappropriate touching to the neighbor girls’ mother, Officer

14
Frey, and Detective Burse. Under these circumstances, the
asserted error would have been harmless beyond a reasonable
doubt, and it is not reasonably probable that the trial court’s
exclusion of A’s brief testimony regarding Jane’s report of abuse
to her would have resulted in a more favorable outcome for
Pineda. (See Chapman, supra, 386 U.S. at p. 24; Watson, supra,
46 Cal.2d at pp. 835-836.)3

III. Separate Punishments on Counts One and Two
Pineda contends the trial court should have stayed his
sentence on count two based on section 654. Specifically, he
argues the evidence demonstrates “the incidences of digital
penetration preceded, or were immediately followed by,
intercourse.” Therefore, Pineda argues, his “intent in digitally
penetrating [Jane] on each occasion was merely incidental to his
objective in penetrating her with his penis.” The Attorney
General responds substantial evidence supports the trial court’s
finding that section 654 does not apply, as the court could have
reasonably concluded “the digital penetration was accomplished
for the purpose of [Pineda’s] own arousal, and not to facilitate any
other form of sexual contact.” We agree with the Attorney
General.

3 Pineda also contends the trial court violated his federal
constitutional rights to due process and fair trial by admitting A’s
testimony about Jane’s report of abuse to her. As the Attorney
General correctly points out, however, Pineda has forfeited his
constitutional claims because he did not raise any objection on
those grounds below. (People v. Riggs (2008) 44 Cal.4th 248, 304.)
In any event, Pineda’s claim is meritless because the trial court
did not err by admitting the testimony at issue. (Ibid.)

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 Section 654, subdivision (a) provides: “An act or omission
that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the
act or omission be punished under more than one provision.”
Section 654 “‘applies when there is a course of conduct
which violates more than one statute but constitutes an
indivisible transaction.’ [Citation.] Generally, whether a course of
conduct is a divisible transaction depends on the intent and
objective of the actor: ‘If all of the offenses were incident to one
objective, the defendant may be punished for any one of such
offenses but not for more than one.’ [Citation.]” (People v. Alvarez
(2009) 178 Cal.App.4th 999, 1006 (Alvarez).)
“However, the rule is different in sex crime cases. Even
where the defendant has but one objective—sexual gratification—
section 654 will not apply unless the crimes were either
incidental to or the means by which another crime was
accomplished. [Citations.] [¶] But, section 654 does not apply to
sexual misconduct that is ‘preparatory’ in the general sense that
it is designed to sexually arouse the perpetrator or the victim.
[Citation.]” (Alvarez, supra, 178 Cal.App.4th at p. 1006.)
“Whether section 654 applies in a given case is a question
of fact for the trial court, which is vested with broad latitude in
making its determination. [Citations.] Its findings will not be
reversed on appeal if there is any substantial evidence to support
them. [Citations.] We review the trial court’s determination in
the light most favorable to the respondent and presume the
existence of every fact the trial court could reasonably deduce
from the evidence. [Citation.]” (People v. Jones (2002) 103
Cal.App.4th 1139, 1143.)

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 Applying the principles above, we conclude substantial
evidence supports the trial court’s finding that section 654 does
not apply in this case. Jane testified that sometimes Pineda
touched her vagina with both his penis and fingers on the same
day, but other times he would use only one of those body parts to
touch her on a single day. Based on this testimony, the trial court
could reasonably conclude Pineda performed each act of digital
penetration and sexual intercourse for purposes of accomplishing
his own sexual arousal. Moreover, even assuming any instance of
sexual intercourse was immediately preceded by digital
penetration as Pineda contends, the trial court could nevertheless
conclude the earlier acts were not “merely incidental to or
facilitative of the later acts[,]” because sexual intercourse may be
accomplished without digital penetration. (People v. Madera
(1991) 231 Cal.App.3d 845, 855; Alvarez, supra, 178 Cal.App.4th
at pp. 1006-1007.)
Accordingly, the trial court did not err by imposing
separate punishments for counts one and two.

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 DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

MANELLA, P.J.

WILLHITE, J.

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