P. v. Cuellar

Filed 6/28/06 P. v. Cuellar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Susanne S. Shaw, Judge. Affirmed as modified.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Shortly before 10:00 p.m., Jose G. left home to pick up his wife, Alma P., at her place of employment, locking the front door as he left. At the time, the couple's four children were asleep in a single bedroom with the doorway covered by a curtain, although it is not clear from the trial testimony whether the curtain was closed at the time. A light outside the bedroom door provided illumination for the otherwise darkened room.

When the couple returned 40 minutes later, they checked on the children and found defendant underneath the blanket covering M.V., their 11-year-old daughter. He was lying on his side and facing towards the child's back, holding her shoulders. His pants and underwear were pulled down to his knees, his penis was erect, and he was moving his torso back and forth. The couple did not know defendant, nor given him permission to enter the residence. The police found a dining room window normally left unlocked was open and the drape covering it pulled to the side.

Based on this evidence, a jury returned guilty verdicts of first degree burglary and committing a lewd act on a child under 14 years of age, and also found defendant committed the lewd act during the commission of a residential burglary. (Pen. Code, § 667.61, subds. (a), (c)(6), & (d)(4).) The trial court imposed concurrent

25-years-to-life terms on each count.

Defendant challenges the sufficiency of the evidence supporting his burglary conviction and the lewd act during the commission of a burglary finding, and also contends the concurrent sentences on both counts violated Penal Code sections 654 and 667.61, subdivision (f). A third claim relating to the calculation of preconviction custody credits was resolved during the pendency of this appeal. (Pen. Code, § 1237.1.)

DISCUSSION

1. Sufficiency of the Evidence

The prosecution charged defendant with burglary on the theory he made entry â€