P. v. Pigg

Filed 4/13/06 P. v. Pigg CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from the Superior Court of Riverside County. Donald George Umhofer, Judge. Donald George Umhofer. (Retired judge of the San Luis Obispo Municipal Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed.

Stephen M. Lathrop, 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, Senior Assistant Attorney General, Jeffrey J. Koch, Senior Assistant Attorney General, Raquel M. Gonzalez, Supervising Deputy Attorney General, and Scott Taylor, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction^[1]

A jury convicted defendant of molesting his grandniece, his grandnephew, and a second boy who lived in the same home. His specific offenses were three counts of committing a lewd act with a child under age 14; one count of committing a lewd act with a child under age 14 by menace, duress, or fear; and one count of attempting to commit a lewd act with a child under age 14. (§§ 288, subds.(a) and (b)(1), 664.) The jury also found defendant committed an offense against more than one victim within the meaning of section 667.61, subdivision (e)(5). The court sentenced him to a determinate prison term of nine years and two consecutive indeterminate prison terms of 15 years to life.

On appeal, defendant contends counts 1 and 2 were barred by the statute of limitations; the trial court abused its discretion by dismissing juror No. 4.; and insufficient evidence supported count 4. Defendant's additional claim of error, based on Blakely v. Washington (2004) 542 U.S. 296, has been resolved against him by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238. We reject his other contentions and affirm the judgment.

2. Facts

Alma P. was defendant's mother. The cousins, Lela M. and Tamera N., are Alma's granddaughters, and defendant's nieces. Two of the victims are Tamera's daughter and son, Christine N., born in 1989, and Marcellus N., born in 1993. The third victim, Daniel M., an unrelated child, born in 1989, lived, along with Lela and defendant, in Alma's mobile home. A second foster child, Michael, lived there too.

While Tamera worked, Alma baby-sat for Christine and Marcellus 13 or 14 hours, five or six days a week. Defendant disciplined all the children verbally and physically.

Alma died in November 1999. Shortly after that, an incident occurred in which defendant slapped and hit Michael and Christine because someone ate his dinner roll. When Lela intervened, defendant beat her up, inflicting two black eyes, a knot, and a split tongue. The family decided defendant had to move out. Lela obtained a restraining order against defendant and the family had no further contact with him.

Counts 1, 2, and 3 (Christine)

Christine testified that on one occasion when she was four, five, or six years old defendant shoved her against a door, grabbed her shirt, and proceeded to touch her under her shirt and on her chest. He also grabbed her pants or shorts and tried to touch her â€