People v. Montoya CA6

I. INTRODUCTION

Defendant Edward James Montoya was convicted after jury trial of conspiracy to commit sexual battery (Pen. Code, §§ 182, 243.4, subd. (e)(1))1 and misdemeanor destroying or concealing evidence (former § 135). The court suspended imposition of sentence and placed defendant on probation. On appeal, defendant first contends that his conviction for conspiracy to commit sexual battery must be reversed because there is no evidence of an agreement to touch the victim without her consent. According to defendant, the evidence at trial supported a finding that he agreed with a friend to impersonate the friend in order to obtain the victim’s consent to touch her sexually. Defendant argues that where a victim’s consent to

1 All further statutory references are to the Penal Code unless otherwise indicated. a sexual touching is obtained by impersonation, no sexual battery has occurred and therefore he may not be convicted of a conspiracy to commit a sexual battery. Second, defendant contends that his conviction for destroying or concealing evidence (former § 135), which was based on his deletion of text messages from his cell phone, must be reversed. Defendant argues that…