P. v. Cantoni

Filed 7/26/07 P. v. Cantoni CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles, Francis J. Hourigan III, Judge. Affirmed.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________

INTRODUCTION

Defendant Fernando Fabian Cantoni appeals from a judgment of conviction entered after a court trial during which the court found him guilty of two counts of misdemeanor sexual battery (Pen. Code,  243.4, subd. (e)(1); counts 1 & 2), one count of sexual penetration by a foreign object (id.,  289, subd. (a)(1); count 3) and one count of forcible oral copulation (id.,  288a, subd. (c)(2); count 4) against L.W., and two counts of misdemeanor sexual battery against K.R. (id.,  243.4, subd. (e)(1); counts 5 & 6). We affirm.

FACTS

Counts 1, 2, 3 & 4

In 2004, defendant was the director of ambulance operations for Gerber Ambulance Company in Torrance. L.W. was employed by the company as an emergency medical technician. Her immediate supervisor was Hrant Kalamian (Kalamian), who, in turn, was supervised by defendant.

On January 28, 2004, defendant drove Kalamian to a nearby body shop. L.W. went along for the ride. Kalamian had to remain at the body shop and suggested that L.W. ride back to Gerber with defendant. En route, defendant told L.W. he wanted to give her a massage. L.W. declined and defendant repeated that he wanted to give her a massage. When L.W. again declined, defendant, in a very strict, very stern tone, told L.W. to put her head in his lap. L.W. complied, as she was scared and unsure if defendant would hurt her.

While driving, defendant unbuttoned L.W.s shirt, pulled up her bra and began fondling her breasts. Defendant then pulled up one of L.W.s breasts and put his mouth on her nipple. L.W. pushed defendant away and moved to the other side of the front seat. L.W. was scared and humiliated. Inasmuch as she did not know if anyone would believe her, she told no one about the incident.

In March 2004, L.W. was standing in the employee lounge when defendant walked in. He grabbed one of her breasts with one hand and her buttocks with the other. L.W. pushed defendant away and asked what he was doing. L.W. did not tell anyone about this incident. She was scared, embarrassed and fearful of losing her job.

One morning during the week of April 4, 2006, L.W. was in the mechanics office at work, eating breakfast with Kalamian and another co-worker, Mike Ramos (Ramos). After Ramos and Kalamian left the office, defendant entered and grabbed L.W.s breast and buttocks. L.W. pushed defendant away. As she did so, Ramos walked back into the office to see defendant with his arm around L.W. Defendant appeared startled and removed his arm from L.W. When Ramos asked what he had walked into, defendant told him that he did not see or hear anything.

L.W. said nothing to Ramos as she threw away her breakfast and walked out of the office. L.W. did not want to talk to Ramos about what he had seen and went about her day, telling no one about the incident.

During the week of April 13, 2004, L.W. was sitting sideways in the passenger seat of an ambulance parked in the company parking lot. The door to the ambulance was open, and her legs were hanging out the open door. Defendant walked up and asked what she was doing. L.W. replied that she was going through the ambulance checklist. Defendant then grabbed L.W.s crotch and asked, What do you want to be doing? L.W. told defendant she was busy working. Defendant then told L.W. that he wanted to show her something in the supply room, relating to a potential promotion to field training officer.

When L.W. told defendant that she did not want to go with him, he commanded that she do so in a stern and strict tone of voice. L.W. reluctantly complied, in that she wanted to keep her job. Once inside the mechanics office, defendant locked the door and forcibly pushed L.W. down onto a chair. Defendant then unzipped and pulled down L.W.s pants and panties to her knees and digitally penetrated her vagina. L.W. started to cry and voiced her displeasure at what was happening.

Defendant was undeterred. He unzipped his pants, took out his penis and told L.W. to suck it if she wanted to keep her job and get her promotion. L.W. said she did not want to and, inasmuch as she was gay, she did not know how. Defendant grabbed L.W. by the hair, forced his penis into her mouth and moved her head back and forth. Upon hearing a noise in the next room, defendant put his penis back in his pants. L.W. stood up, put her pants back on and left the room.

Counts 5 & 6

K.R. also was an emergency medical technician at Gerber. In April 2004, dispatch requested that K.R. go to defendants office. K.R. was being written up for violating company policy. As K.R. read defendants write-up, defendant said he could make the problem go away for special favors. When K.R. said she did not know what defendant meant, he asked to see her pierced nipples. K.R. refused, signed her write-up and left.

About one month later, K.R. and her partner were called into dispatch. Defendant told them to wash ambulance nine, an ambulance to which they previously had been assigned. As K.R. and her partner walked out of the office, defendant said K.R.s partner could wash the ambulance by himself. Defendant asked K.R. what she would do to get unit nine back. K.R. said nothing, after which defendant said he wanted to see her in his office.

Once inside his office, defendant again asked K.R. to show him her pierced nipples. An uncomfortable and irritated K.R. refused. Defendant then stated in a serious tone that he wanted to see them. Defendant walked up to K.R. and touched one of her breasts. He said it felt nice and he wanted to see them. He told K.R. that she could not leave until she showed him. Afraid of being fired, K.R. exposed one of her breasts. Defendant touched the breast, stopping when he heard someone coming down the hallway. Defendant told K.R. they were done and that she and her partner could have unit nine back. K.R. said nothing to anyone at work.

Weeks later, K.R. was in the human resources office when defendant asked to speak to K.R. in his office. Before reaching defendants office, defendant pushed K.R. against the wall and placed one hand on her breast and the other on her buttocks. Defendant backed off when a paramedic walked by and told K.R. her partner was looking for her. Defendant told the paramedic K.R. would be out shortly and resumed fondling K.R. Fearing reprisal, K.R. told no one at work what had transpired.

One day, L.W. and K.R. were conversing when the subject of defendant came up. When each learned that the other had been sexually assaulted by defendant, they reported the assaults to their immediate supervisor, Kalamian, and to human resources. A company attorney urged both women to go to the police. Defendants prosecution resulted.

Procedural History

Defendant pled not guilt to all counts at his arraignment. He subsequently waived his right to a jury trial in exchange for a grant of probation with a one-year county jail sentence lid if, following a fully contested trial, the court found him guilty on any count. Following trial, the court found defendant guilty of all counts. The court remanded him into custody to serve the one-year jail term. The court then continued the sentencing hearing so the defendant does physically earn the time credits.

At the continued hearing, the court observed that defendant had completed his jail term. The credits he earned were to be applied to his sentence, and, following sentencing, defendant would be released from custody. The court suspended imposition of sentence, placed defendant on five years formal probation, ordered him to participate in a 52-week sex offender program and imposed various fines (Pen. Code,  1202.4, subd. (b), 1202.44, 290.3). This appeal followed.

DISCUSSION

We appointed counsel to represent defendant on appeal. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436.

On February 9, 2007, we advised defendant that he had 30 days within which to submit personally by brief or letter any grounds of appeal, contentions or arguments that he wanted us to consider. To date, we have received no response from defendant. We have examined the entire record and are satisfied that defendants counsel has complied fully with his responsibilities. No arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 119; People v. Wende, supra, 25 Cal.3d at p. 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.