P. v. Rodriguez

Filed 7/12/06 P. v. Rodriguez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, James Pierce, Judge. Affirmed with modifications.

Nancy L. Tetreault, 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, Susan D. Martynec and Suzann E. Papagoda, Deputy Attorneys General, for Plaintiff and Respondent.

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Victor Rodriguez was convicted of attempted first degree burglary, forcible rape, felony sexual battery by restraint, and sexual penetration by a foreign object. He was sentenced to six years six months in prison. He raises issues regarding the sufficiency of the evidence and instructional error. Respondent concedes that the evidence is insufficient for the offense of felony sexual battery by restraint. We modify appellant's conviction on that count to the offense of misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)),^[1] and affirm his conviction in all other respects.

FACTS

1. Prosecution Evidence

In February 2004, Anita J. was 83 years old. She had lived for over 30 years in a second-floor condominium unit in Harbor City. The approach to her condominium was by concrete stairs that ended at a wooden fence. A five-foot gate in the fence opened onto the small patio at the front of the condominium. On one side of the front door, there was a sliding glass door; on the other side, there was a sliding window.

Anita retired from her job as a school counselor in 1984. After that, she sold real estate for a number of years, before she stopped working completely. She was an independent person who had always kept careful personal records. She had two adult sons, Jay and John. Jay lived in Sacramento; John lived in the Tustin area. Anita's memory began to deteriorate before the death of her long-time fiancé in 2001. After his death, her mental deterioration became more rapid. Jay realized when Anita visited him that there was a problem with her short-term memory. However, she insisted that she wanted to live independently, and neither of her sons realized the extent of her impairment.

Sonnia Palacio, Anita's long-time friend, lived in another condominium in the same building. Sonnia and Anita saw each other three or four times a week. Sonnia also observed a drastic worsening in Anita's memory after the death of her fiancé. Anita told Sonnia in February 2004 that she was worried because she was losing her memory and was rapidly losing weight.^[2]

About 4:00 p.m. on February 23, 2004, Anita appeared at Sonnia's condominium, distraught. She said, â€