People v. Viruncruz CA5

INTRODUCTION

Walking home from a friend’s house, 13–year–old S.M. came upon appellant Hilario Viruncruz working on his truck by the side of the road. Viruncruz asked S.M. if he would help do some work for him. S.M. said he would but needed to ask his mother first. Viruncruz offered him a ride home. During the drive, Viruncruz casually touched S.M. on the shoulder, neck, and abdomen. But instead of driving S.M. home, Viruncruz drove him to an unfamiliar neighborhood, forced his hand down S.M.’s pants, and touched his genitals. Although Viruncruz tried to hold him down, S.M. was able to break free, open the truck’s door, and flee. A jury convicted Viruncruz of kidnapping with the intent to commit a lewd and lascivious act on a person under the age of 14 (Pen. Code, §§ 209, subd. (b)(1) & 288) and committing a forcible lewd and lascivious act on a person under the age of 14 (Pen. Code, § 288, subd. (b)(1)). As to the forcible child molest charge, the jury further found two enhancing allegations true: In the course of the molest, Viruncruz kidnapped S.M. (Pen. Code, § 667.61, subd. (e)(1)), and in doing so he substantially increased the risk of harm to S.M. (Pen. Code, § 667.61,…