P. v. Moreno

Filed 7/6/06 P. v. Moreno CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Philip H. Hickok, Judge. Affirmed.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Marco Antonio Moreno appeals from a judgment of conviction for lewd act upon a child under age 14 years (Pen. Code, § 288, subd. (a)).[1] He received a sentence of 15 years to life pursuant to section 667.61. He contends that the trial court committed prejudicial error in instructing the jury with CALJIC No. 17.20.1 instead of CALJIC No. 17.20 and in refusing to instruct the jury with CALJIC No. 4.35, mistake of fact. He also argues the trial court failed to exercise discretion in sentencing him to a life term, arguing that he qualified for probation pursuant to section 1203.066.

We conclude that the trial court's instruction with CALJIC No. 17.20.1 was harmless error; that the trial court did not err in rejecting CALJIC No. 4.35; and that the trial court did exercise its discretion in connection with the sentence and no abuse of discretion has been demonstrated. Accordingly, we affirm.

FACTS

On September 3, 2003, 10-year-old N.M. was awakened in the middle of the night by her father, appellant. He pulled her underwear down, removed his boxer shorts, and had sexual intercourse with her, causing her pain. The next day, she experienced painful urination and an excretion from her genital area. Ten days later, her mother took her to a doctor. Medical tests indicated that N.M. had contracted herpes simplex II, which could have resulted from the sexual contact with her father.

Appellant was arrested for having sex with his daughter. He admitted the crime to the investigating officer, Carlos Alvarez. Alvarez also testified that appellant told him that appellant believed he had genital herpes or some other sexually transmitted disease. Appellant admitted at trial that he had sex with his daughter and also admitted that he had told Alvarez that he thought he had â€