P. v. Castaneda

Filed 8/3/06 P. v. Castaneda CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

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By second amended information, defendant Juan Martinez Castaneda was charged with 11 counts of sexual offenses against V.C. (counts 1-7) and M.L. (counts 8-11) as follows: Count 1, sexual assault on a child under 14 years of age (Pen. Code, § 269, subd. (a)(5), committed by unlawful penetration with this finger (further undesignated statutory references are to the Penal Code); count 2, penetration with a foreign object (§ 289, subd. (a)(1)); counts 3, 4, 6, and 7, lewd acts with a child under 14 years of age (§ 288, subds. (a) & (b)); and count 5, assault with intent to commit rape (§ 220). Count 8, sexual assault on a child under 14 years of age (§ 269, subd. (a)(2)), committed by forcible rape; count 9, forcible rape

(§ 261, subd. (a)(2)); count 10, a forcible lewd act with a child under 14 years of age (§ 288, subd. (b)) committed by means of rape; and count 11, a lewd act with a child under 14 years of age (§ 288, subd. (a)) committed by means of rape.

A jury convicted defendant of counts 1, 3, 5, 6, 8 and 11, count 11 being an offense included within count 10, of which defendant was acquitted. The jury did not render verdicts on counts 2, 4, 7, and 9, which were charged, respectively, as lesser included offenses in counts 1, 3, 6, and 8.

Defendant was sentenced to consecutive terms of 15 years to life on counts 1 and 8, and to a consecutive determinate term of six years on count 6. Sentences were imposed, but stayed pursuant to section 654, on counts 3, 5 and 11.

On appeal, defendant contends (1) the court prejudicially erred in instructing the jury on count 8, a violation of section 269, subdivision (a)(1), involving M.L.; and (2) if we conclude that reversal of count 8 is not required, then remand for resentencing is necessary for the trial court to exercise its discretion to determine whether counts 1 and 8 should be concurrent or consecutive. We agree the trial court misinstructed the jury; however, we conclude that the error was not prejudicial. We reject defendant's second claim. The judgment is affirmed.

Facts and Proceedings

V.C. testified that in October 2003, she was 12 years old and lived with her mother, C.L., her father, the defendant, and her sister and two brothers, all of whom were younger than V.C. One afternoon when her mother was still at work, defendant came home and told her to go into the bathroom. He followed, closed the door, pulled her pants down, and put his finger in her vagina. He put V.C. on the bathroom floor and attempted to push his penis against her vagina. She fought back and was able to get away when her sister and brother opened the bathroom door in response to hearing V.C. struggling.

In February 2004, M.L., who was C.L.'s daughter by another man and who had been living in Mexico, moved into C.L.'s home. M.L. was 13 years old at the time. One afternoon when M.L. was in the bedroom watching television, defendant came into the bedroom and locked the door. Defendant threw her onto the bed and when she tried to get up he struck her on the cheek. Defendant then placed his penis in her vagina. M.L. testified that she was frightened of defendant and that after he raped her he threatened to get her in trouble with her mother if she told of the assault. M.L. understood this to mean that she would no longer be able to see her mother.

M.L. told her mother that she had been molested, but she would not say by whom. About a month later, M.L. told her mother that the person who had molested her was defendant and that he had raped her.

Both V.C. and C.L. had noticed that M.L. flirted with defendant. After M.L. claimed defendant had raped her, M.L. told V.C. that she was in love with defendant. V.C. also said that on one occasion she saw M.L. in defendant's bed with him.

M.L.'s friend, C.Z., testified that M.L. told her that defendant had raped her in her parent's bedroom. After being raped and having problems with her mother, M.L. moved in with C.Z.'s family. M.L. told C.Z. that she was in love with defendant.

M.L. told Susan Cervilli, who worked with Child Protective Services, that she had been raped by defendant in the bedroom. M.L. also told Cervilli that defendant had told her not to tell anyone or she would not see her mother again.

Defendant testified, claiming he did not recall being in the bathroom with V.C. or doing anything to her. Defendant admitted having sexual intercourse with M.L. on four occasions, but denied that he raped her and claimed she initiated and forced the sex on him.

Discussion

I

The Instructions on Duress

Defendant contends the court prejudicially misinstructed the jury on count 8 when it impliedly informed them that the term â€