Filed 9/2/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B255092
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA412895)
v.
ILDEFONSO MENDOZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald
S. Coen, Judge. Affirmed.
David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Shawn McGahey Webb and Jonathan M. Krauss, Deputy Attorneys General, for
Plaintiff and Respondent.
_______________________
Defendant Ildefonso Mendoza was charged with two counts of sexual intercourse
or sodomy with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a); counts 1
& 2),1 oral copulation or sexual penetration with a child 10 years old or younger (§ 288.7,
subd. (b); count 3),2 lewd act upon a child (§ 288, subd. (a); count 4), and possession of
matter depicting a minor engaging in sexual conduct (§ 311.11, subd. (a); count 5). A
jury convicted Mendoza on all counts. The trial court sentenced Mendoza to an
aggregate state prison term of 67 years to life.
On appeal, Mendoza contends the trial court erred by failing to instruct the jury on
the lesser included offenses of attempted sexual intercourse with a child 10 years of age
or younger, attempted sodomy with a child 10 years of age or younger, and attempted
oral copulation with a child 10 years of age or younger. Mendoza also contends the
evidence was insufficient to support his conviction for possession of child pornography.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution’s Evidence
Mendoza lived with Maria Ignacio, their two sons Jesus and Adrian, and Ignacio’s
daughter, Jessica. Mendoza and Ignacio had been together for about five years.
1. The Events of May 5, 2013
Ignacio testified as follows: On May 5, 2013, a Sunday, Ignacio left her house to
go to the store. She took Jesus, who at the time was five months old, with her. Her son
Adrian, then age two, and Jessica, age seven, did not go with their mother. When Ignacio
1 All further statutory references shall be to the Penal Code unless otherwise
indicated.
2 While charged in the alternative, at trial the People argued only the oral copulation
portion of the statute.
2
left, Mendoza was not at home. When she returned, she saw Mendoza’s car. She went
into her house and looked for Jessica. She entered her bedroom and saw Mendoza
standing in front of the bed, wrapped in a blanket. Jessica was on the bed. Ignacio saw
that Jessica had clothes only on one leg. Ignacio yelled at Mendoza, asking him what he
was doing. He turned to look at Ignacio, dropped the blanket and pulled up his shorts.
Jessica got out of bed and pulled up her clothing. Mendoza said he was not doing
anything and that it was the first time he touched Jessica. Ignacio chased Mendoza out of
the house and asked Jessica what happened.
Jessica did not want to talk much about what happened. Mendoza called every
day asking Ignacio to forgive him and promising it would not happen again. Ignacio did
not let him back in the house.
Jessica testified about the events of May 5, 2013. Jessica referred to Mendoza as
Tocho. When her mother was at the store, Tocho asked Jessica “to play.” He pulled
Jessica into her mother’s room and asked her to lie on the bed. He pushed her onto the
bed and then took off his clothes. Tocho also took Jessica’s clothes off, although she
tried to pull her shorts or pants back up. Tocho “put his private part on [Jessica’s] private
part,”3 and then he put it inside. Jessica was kicking him. Tocho said “a little bit more.”
Ignacio came in and told Tocho to stop. Ignacio hit Tocho and wanted him to leave.
2. The Photographs
On June 9, 2013, Ignacio logged into Mendoza’s Facebook page. Ignacio knew
Mendoza’s password. She wanted to erase any pictures of Jessica so Mendoza could
not see her. Ignacio discovered two photographs of Jessica and Mendoza. One picture
showed Mendoza’s penis on Jessica’s vagina. The other picture showed Mendoza’s
penis inside Jessica’s vagina. Ignacio could identify the blanket on her bed depicted in
the photographs and Jessica’s school uniform. She also recognized Mendoza’s hand,
3 Jessica testified that her private part is “where [she] go[es] pee pee.”
3
which the picture showed grabbing his penis. Ignacio was enraged and deleted the two
photographs. She went to the police that day and told them what had happened with
Mendoza and Jessica. She took Jessica to be interviewed by the police that evening.
Jessica testified that once she had her pants or shorts off, and Mendoza asked her
to cover her eyes. Jessica was lying on the bed in her mother’s room. Mendoza took a
picture of her on his phone and then told her she could open her eyes. Jessica did not see
the picture.
The Los Angeles Police Department had Mendoza’s cell phone forensically
analyzed after he was arrested. The analyst was unable to find the two photographs
Ignacio had described. The investigating officer also attempted to subpoena information
from Facebook regarding Mendoza’s account, but Facebook did not find the photographs.
Facebook administrators indicated that once photographs are deleted from an account,
they are not held forever.
3. Earlier Events
Jessica testified that Mendoza began touching her when she was about six, after
her baby brother Jesus was born. Mendoza stuck his penis into Jessica’s “front private
part” about three to four times. Mendoza put his penis to her “back private part” about
two times. Once Mendoza tried to get Jessica to put her mouth on his penis. Mendoza
opened Jessica’s mouth with his hand and put his penis inside her mouth. It made her
feel nasty. Mendoza touched her in her mother’s bedroom on the bed, and in Jessica’s
bedroom on the bed and on the floor. Mendoza told Jessica not to tell her mother about
the touching.
4. Jessica’s Examination at UCLA Hospital
Jessica was examined by Elizabeth Tighe, a nurse practitioner, at Santa Monica-
UCLA Hospital’s sexual assault clinic. Tighe saw no physical injuries to Jessica’s vagina
4
or anus. Nicole Farrell, a forensic interview specialist, interviewed Jessica.4 Jessica told
Farrell that Tocho had “put his middle part” in her “middle part.” Jessica did not
remember how many times Tocho put his middle part in her middle part but thought it
was three times. The first time was after her baby brother Jesus was born. Jessica could
feel it when he put it in, “not all of it, just part.”
Jessica told Farrell that one time Tocho told Jessica to lick his penis and was
pushing her head to do so. Jessica was pushing her head back and her mouth was closed.
Jessica stated, “he just put my head on . . . but I closed my mouth.” Tocho put his middle
part in her back “like four times.” Jessica did not know if Tocho took pictures.
5. Mendoza’s Statements
After Ignacio kicked Mendoza out of the house, but prior to his arrest, Ignacio met
with Mendoza and recorded their conversation on her cell phone.5 Mendoza admitted he
touched Jessica with his hand and with his penis. Mendoza denied there was any
penetration. Mendoza said the only time he touched Jessica was the day Ignacio had
caught them in bed.
Mendoza was interviewed by Officer Jose Olmedo of the Los Angeles Police
Department.6 Mendoza admitted to touching Jessica with his hand and his penis during
the May 5, 2013 incident. He stated he was standing next to the bed, his penis was more
or less erect, Jessica was lying on the bed, and her legs were on his chest. At first
Mendoza denied that his penis went inside at all but later agreed his penis was inside the
labia, and “the only thing that goes in is the tip. . . . [I]t can’t past that . . . [u]nless you
force it.” Mendoza admitted that he had touched Jessica on previous occasions, including
4 A video and audio recording of the interview was played to the jury and a
transcript was provided.
5 A translated transcript of that conversation was admitted into evidence.
6 A videotape of the interview was played to the jury and a translated transcript was
admitted into evidence.
5
one time when Jessica was on all fours and he put his penis on her anus. He stated his
penis did not “get in,” and “it’s that you can’t.”
Mendoza said that Jessica put her mouth on his penis one time, and his penis went
inside her mouth around five times. Mendoza stated that his penis had gone inside
Jessica’s vagina about three or four times. Mendoza took a picture of Jessica once with
his cell phone, but he erased it.
B. The Defendant’s Evidence
Mendoza presented no evidence.
C. Jury Instructions
During a conference outside the presence of the jury, defense counsel asked that
the trial court instruct the jury on attempted oral copulation, on the basis that Jessica said
she had kept her mouth closed. The trial court denied the request, reasoning that
“[c]ontact is all that is required.” Defense counsel did not request attempted sexual
intercourse or attempted sodomy instructions.
DISCUSSION
Mendoza contends his convictions under counts 1 through 3 must be reversed
based on the trial court’s failure to instruct on the lesser included offenses of attempted
sexual intercourse of a child 10 years of age or younger, attempted sodomy of a child 10
years of age or younger, and attempted oral copulation of a child 10 years of age or
younger. Mendoza also challenges his conviction for possession of child pornography
(count 5) based on insufficiency of the evidence. We affirm.
6
A. The Court Did Not Err in Failing To Instruct on Attempted Sexual Intercourse,
Attempted Sodomy, or Attempted Oral Copulation
1. Elements of the Offenses Charged and Principles Concerning Lesser
Included Offenses
The elements of sexual intercourse or sodomy with a child 10 years of age or
younger (§ 288.7, subd. (a)) are: (1) The defendant engaged in a act of sexual intercourse
or sodomy 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.
(CALCRIM No. 1127.)
Sexual intercourse means any penetration, no matter how slight, of the vagina or
genitalia by the penis. (People v. Dunn (2012) 205 Cal.App.4th 1086, 1097; People v.
Karsai (1982) 131 Cal.App.3d 224, 233-234, disapproved on another ground in People v.
Jones (1988) 46 Cal.3d 585, 600, fn. 8; CALCRIM No. 1127). Sodomy similarly
requires penetration, however slight. (§ 286, subd. (a); People v. Farnam (2002) 28
Cal.4th 107, 143; People v. Huynh (2012) 212 Cal.App.4th 285, 305.) These are general
intent crimes. (See People v. Richardson (2008) 43 Cal.4th 959, 1018.)
The elements of oral copulation with a child 10 years of age or younger (§ 288.7,
subd. (b)) are: (1) The defendant engaged in an act of oral copulation 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. (CALCRIM No. 1128.) Oral
copulation is defined as any contact, no matter how slight, between the mouth of one
person and the sexual organ of another. Penetration is not required. (People v. Dement
(2011) 53 Cal.4th 1, 41-44; see People v. Huynh, supra, 212 Cal.App.4th at p. 305.) This
is also a general intent crime. (People v. Warner (2006) 39 Cal.4th 548, 557-558.)
Mendoza claims that in addition to instructing on the elements of these crimes, the
trial court was obligated to sua sponte instruct on lesser included offenses of attempted
sexual intercourse of a child 10 years of age or younger, attempted sodomy of a child 10
years of age or younger, and attempted oral copulation of a child 10 years of age or
younger. We apply “the independent or de novo standard of review to the failure by a
7
trial court to instruct on” a lesser included offense. (People v. Waidla (2000) 22 Cal.4th
690, 733; People v. Oropeza (2007) 151 Cal.App.4th 73, 78.)
“A criminal defendant has a constitutional right to have the jury determine every
material issue presented by the evidence, and an erroneous failure to instruct on a lesser
included offense constitutes a denial of that right. To protect this right and the broader
interest of safeguarding the jury’s function of ascertaining the truth, a trial court must
instruct on an uncharged offense that is less serious than, and included in, a charged
greater offense, even in the absence of a request, whenever there is substantial evidence
raising a question as to whether all of the elements of the charged greater offense are
present. [Citations.] [¶] But this does not mean that the trial court must instruct sua
sponte on the panoply of all possible lesser included offenses. Rather, . . . ‘“such
instructions are required whenever evidence that the defendant is guilty only of the lesser
offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]
‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of
reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater,
was committed.”’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 215.)
Before we consider whether the record supported giving instructions regarding
attempt, we must determine whether attempted sexual intercourse of a child 10 years of
age or younger, attempted sodomy of a child 10 years of age or younger, and attempted
oral copulation of a child 10 years of age or younger are in fact lesser included offenses
of the crimes charged. We conclude they are not, and the trial court thus did not err in
failing to give these instructions.
2. Attempts as Lesser Included Offenses
Mendoza provides scant authority for his argument that attempt is a lesser
included offense of the crimes charged. Mendoza cites to People v. Austin (2013) 219
Cal.App.4th 731, 733 and People v. Rouse (2012) 203 Cal.App.4th 1246, 1274-1275 for
the proposition that attempted sexual intercourse is a lesser included offense of sexual
intercourse. In Austin, the defendant was charged with both sexual intercourse and
8
attempted sexual intercourse, but the opinion contains no discussion of the doctrine of
lesser included offenses. Rouse was depublished after a grant of review on May 23, 2012
(S201479) and cannot be cited as authority.7 (Cal. Rules of Court, rules 8.1105(e)(1),
8.1115(a); Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 110
[“[b]ecause depublication renders the opinion noncitable and removes its precedential
value, it nullifies the opinion and renders it nonexistent”].)
As to attempted sodomy, Mendoza relies on footnote 2 in People v. Thompson
(2009) 177 Cal.App.4th 1424, 1427, disapproved on another ground in Johnson v.
Department of Justice (2015) 60 Cal.4th 871, 888, which reads as follows: “The jury
acquitted [defendant] of [sodomy] and of the lesser included offense of attempted
sodomy.” The opinion has no discussion of whether or not attempted sodomy is properly
considered a lesser included offense of sodomy.
Mendoza relies on People v. McEvoy (2013) 215 Cal.App.4th 431, People v.
Coffman and Marlow (2004) 34 Cal.4th 1, and People v. Kipp (1998) 18 Cal.4th 349 for
his contention that attempted oral copulation of a minor is a lesser included offense of
oral copulation with a minor. None of these cases analyzes whether attempted oral
copulation is a lesser included offense of oral copulation of a minor.8 Cases are not
authority for propositions not considered. (People v. Partida (2005) 37 Cal.4th 428, 438,
fn. 4.)
7 Although the Supreme Court subsequently dismissed review in Rouse on
October 17, 2012, the Court of Appeal opinion remained unpublished because the
Supreme Court did not order it published. (Cal. Rules of Court, rule 8.528(b)(3) [after
the Supreme Court issues an order dismissing review, “the Court of Appeal opinion
remains unpublished unless the Supreme Court orders otherwise”].)
8 McEvoy mentions that a jury found appellant not guilty of oral copulation of an
unconscious person and “the lesser offense of attempted oral copulation” (People v.
McEvoy, supra, 215 Cal.App.4th at p. 433), but contains no analysis of lesser included
offenses. Coffman and Marlow describes the elements for attempted sodomy, and Kipp
concerns whether the evidence was sufficient to prove defendant committed attempted
oral copulation. Neither contains a discussion of lesser included offenses.
9
In determining whether a trial court must instruct on a lesser included offense, “‘a
lesser offense is necessarily included in a greater offense if either the statutory elements
of the greater offense, or the facts actually alleged in the accusatory pleading, include all
the elements of the lesser offense, such that the greater cannot be committed without also
committing the lesser. [Citations.]’” (People v. Smith (2013) 57 Cal.4th 232, 240,
quoting People v. Birks (1998) 19 Cal.4th 108, 117-118, fn. omitted; accord, People v.
Banks (2014) 59 Cal.4th 1113, 1160, disapproved in part on another ground in People v.
Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
a. Elements Test
In People v. Bailey (2012) 54 Cal.4th 740 (Bailey), the California Supreme Court
applied the “elements” test to determine whether an uncharged crime is a lesser included
offense of a charged crime. “The elements test is satisfied if the statutory elements of the
greater offense include all of the statutory elements of the lesser offense, such that all
legal elements of the lesser offense are also elements of the greater.” (Id. at p. 748.) The
Bailey court concluded that attempted escape from prison was not a lesser included
offense of the crime of escape from prison, as attempted escape is a specific intent crime,
requiring intent to escape as an element of the charge. The court noted that section 21a
provides that “‘[a]n attempt to commit a crime consists of two elements: a specific intent
to commit the crime, and a direct but ineffectual act done toward its commission.’” (Id.
at p. 749.) The Bailey court noted that the crime of escape is a general intent crime, not
requiring that the defendant have a specific intent to escape as one of its elements. (Ibid.)
The Bailey court acknowledged that prior cases had implied that attempt is always
a lesser included offense of a completed crime. However, the court cautioned that “‘[w]e
must not generalize in the law of attempt’” and that “‘[t]he law of “attempt” is complex
and fraught with intricacies and doctrinal divergences.’ [Citation.]” (Bailey, supra, 54
Cal.4th at p. 753.) The court concluded that the general principle that attempt is a lesser
10
included offense of any completed crime9 is not applicable where the attempted offense
includes a particularized intent that goes beyond what is required by the completed
offense. (Ibid.; see also People v. Braslaw (2015) 233 Cal.App.4th 1239, 1248 [applying
Bailey reasoning to conclude “attempted rape of an intoxicated person is not a lesser
included offense of rape of an intoxicated person”].)
Attempted sexual intercourse, attempted sodomy and attempted oral copulation
with a child 10 years of age or younger are all specific intent crimes. (§ 21a.) Thus,
under the elements test, they are not lesser included offenses of the charged general intent
crimes. (Cf. People v. Ngo (2014) 225 Cal.App.4th 126, 157 [sexual penetration of a
minor under § 288.7, subd. (b), is already a specific intent crime, requiring that the act be
done “for the purpose of sexual arousal, gratification, or abuse,” thus attempted sexual
penetration is a lesser included offense of sexual penetration because it does not add a
specific intent not already included under the definition of the completed offense].)
Because of the different mental states required, a defendant could be guilty of the
completed offense but not the attempt. As noted in People v. Braslaw, supra, 233
Cal.App.4th 1239, defenses may be available to the charge of attempt, which are not
defenses to the general intent crime charged. (See id. at pp. 1249-1250 [voluntary
intoxication of the defendant is a defense to attempted rape of an intoxicated person while
voluntary intoxication of the defendant cannot negate general intent, the mental state
required for actual rape of an intoxicated person].)
b. Accusatory Pleading Test
Under the accusatory pleading test, we examine the language of the accusatory
pleading. (People v. Smith, supra, 57 Cal.4th at p. 242.) Here, the information charges in
count 1 that “[o]n or about May 5, 2013 . . . the crime of sexual intercourse or sodomy
9 Relying on this general principle without engaging in the analysis required by
Bailey, the People mistakenly concede attempt is a lesser included offense to the crimes
charged.
11
with child 10 years old or younger . . . was committed by [Mendoza], who being a person
18 years of age and older, did engage in sexual intercourse and sodomy with Jessica . . . ,
a child 10 years of age and younger.” (Capitalization omitted.) Count 2 contains
identical language but alleges a different time period. Count 3 charges that “[o]n or
between October 13, 2010 and October 12, 2011 . . . the crime of oral copulation or
sexual penetration with child 10 years old or younger . . . was committed by [Mendoza],
who being a person 18 years of age and older, did engage in oral copulation and sexual
penetration, as defined in . . . Section 289 with Jessica . . . , a child who was 10 years of
age and younger.” (Capitalization omitted.)
Neither count 1 nor count 2 charges that Mendoza had a specific intent to commit
the offense. Because specific intent is a necessary element of attempt, under the
accusatory pleading test, attempted sexual intercourse and attempted sodomy are not
lesser included offenses of the crimes charged.
Count 3 charges Mendoza with the crime of oral copulation or sexual penetration,
as defined in section 289. Section 289 defines sexual penetration as including a specific
intent element, but does not pertain to oral copulation. Thus, the information does not
plead that Mendoza had a specific intent to commit oral copulation. Because specific
intent is a required element of attempted oral copulation, attempted oral copulation is not
a lesser included offense of oral copulation under the accusatory pleading test.10
Because we conclude attempt was not a lesser included offense of sexual
intercourse with a child 10 years of age or younger, sodomy of a child 10 years of age or
younger or oral copulation of a child 10 years of age or younger, under either the
10 The People pursued only the oral copulation prong of section 288.7,
subdivision (b). We acknowledge that sexual penetration is already a specific intent
crime, and attempt is a lesser included offense. (People v. Ngo, supra, 225 Cal.App.4th
at p. 157.) Here, however, the People did not present a theory of sexual penetration and
there was no instruction on that crime. Under these circumstances, the trial court had no
duty to instruct on the lesser included offense of attempted sexual penetration. Mendoza
does not claim on appeal that the trial court should have so instructed.
12
elements test or the accusatory pleading test, the trial court did not err in failing to
instruct the jury sua sponte on attempt to commit these crimes.
B. Substantial Evidence Supported the Conviction For Possession of Child
Pornography
Mendoza argues the record contains insufficient evidence to support his conviction
of possession of matter depicting a minor engaged in sexual conduct. Section 311.11,
subdivision (a), makes it a crime to knowingly possess or control any matter,
representation or image, the production of which involves the use of a person under 18
years of age personally engaging in sexual conduct.11 Mendoza argues that he cannot be
convicted of this crime because the actual photographs were not viewed by the jury, and
the only evidence was presented through the testimony of Jessica’s “enraged” mother,
who deleted the images.
11 Section 311.11, subdivision (a), provides as follows: “Every person who
knowingly possesses or controls any matter, representation of information, data, or
image, including, but not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer software, computer
floppy disc, data storage media, CD-ROM, or computer-generated equipment or any
other computer-generated image that contains or incorporates in any manner, any film or
filmstrip, the production of which involves the use of a person under 18 years of age,
knowing that the matter depicts a person under 18 years of age personally engaging in or
simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a
felony . . . .” Subdivision (d)(1) of section 311.4 defines sexual conduct as “any of the
following, whether actual or simulated: sexual intercourse, oral copulation, anal
intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual
masochism, penetration of the vagina or rectum by any object in a lewd or lascivious
manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual
stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or
excretory functions performed in a lewd or lascivious manner, whether or not any of the
above conduct is performed alone or between members of the same or opposite sex or
between humans and animals. . . .”
13
1. Standard of Review
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.”’”’ [Citation.] . . . ‘We presume “‘in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.’ [Citation.] This standard applies whether direct or circumstantial
evidence is involved.”’ [Citation.]” (People v. Thompson (2010) 49 Cal.4th 79, 113.)
2. Substantial Evidence in the Record Supports the Conviction
Ignacio testified she found two pictures on Mendoza’s Facebook account: one
depicting Mendoza’s penis in Jessica’s vagina, and the other depicting his penis on top of
Jessica’s vagina. Ignacio recognized the blanket on the bed depicted in the pictures,
Jessica’s school uniform, and Mendoza’s hand.12 Ignacio testified that whenever
Mendoza took photographs on his cell phone, the photographs would automatically
backup on his Facebook page.
Mendoza argues he found no case in which a person was convicted of possessing
child pornography where the actual images were not found in some storage medium.
While this may be true, Mendoza similarly does not point us to any authority that the lack
of the actual image precludes such a conviction. Here, there is substantial evidence from
Ignacio regarding Mendoza’s possession of images violative of section 311.11. Pursuant
to Evidence Code section 411, “[e]xcept where additional evidence is required by statute,
the direct evidence of one witness who is entitled to full credit is sufficient for proof of
any fact.” We conclude Ignacio’s testimony was not inherently improbable (see Alperson
v. Mirisch Co. (1967) 250 Cal.App.2d 84, 93) and was of solid value sufficient to support
12 Mendoza concedes his conviction would not be subject to an insufficiency of the
evidence attack had the photographs been found on his cell phone or Facebook page and
been presented to the jury.
14
the conviction. (Cf. People v. Palaschak (1995) 9 Cal.4th 1236, 1241 [loss of evidence
of drugs should not defeat a possession conviction where there is direct or circumstantial
evidence the substance had been in defendant’s possession].)13
Further, although not required, there was other evidence to corroborate Ignacio’s
testimony. Jessica recalled Mendoza once taking a picture of her with his telephone
when she was partially clad on her mother’s bed. Mendoza admitted to Olmedo that he
had taken a picture of Jessica once but had deleted it. We find the record contains
substantial evidence to support the conviction for possession of child pornography.
DISPOSITION
The judgment is affirmed.
STROBEL, J.*
We concur:
PERLUSS, P. J.
ZELON, J.
13 Although not challenged on this basis, we note that Evidence Code section 1523
allows oral testimony of the content of a writing under specified circumstances.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
15