P. v. Garcia

Filed 4/4/06 P. v. Garcia 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Butte)

----

Defendant Danny Ray Garcia sexually molested his stepsister, V.S.; his father's girlfriend's daughter, K.A.; and his girlfriend's daughter, C.G. An information charged defendant with continuous sexual abuse of C.G., a forcible lewd act against C.G., two lewd acts against K.A., four lewd acts against V.S., and lewd acts against two other minors. (Pen. Code, §§ 288.5, subd. (a), 288, subds. (a), (b)(1), (c)(1), 1203.066, subd. (b).)^[1]

A jury found defendant guilty of the offenses against V.S., C.G., and K.A. The jury found true a special circumstance allegation that the statute of limitations for four of the counts was extended pursuant to section 803, subdivision (g).

Sentenced to 20 years eight months plus 30 years to life, defendant appeals, contending: (1) his prosecution on four of the counts violated the ex post facto clause of the federal Constitution, (2) instructional error, (3) insufficiency of the evidence, (4) the court erred in admitting expert evidence concerning child sexual abuse accommodation syndrome, (5) the court erred in denying defendant's motion to represent himself, and (6) the imposition of the upper term and consecutive sentences violated defendant's constitutional right to a jury determination of crucial facts. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On February 24, 2004, an information charged defendant with continuous sexual abuse, consisting of three or more acts of substantial sexual conduct with C.G., a child under 14 years of age, between August 1, 2001, and August 24, 2002 (count 1 -- §§ 288.5, subd. (a), 1203.066, subd. (b)); a forcible lewd act upon C.G., a child under 14 years of age, on or about August 25, 2002 (count 2 -- § 288, subd. (b)(1)); two lewd acts upon K.A., a child under 14 years of age, between April 1, 2001, and September 16, 2002 (counts 3 and 4 -- § 288, subd. (a)); two lewd acts upon V.S., a 14-year-old child, between January 1, 1991, and May 10, 1991 (counts 5 and 6 -- § 288, subd. (c)(1)); two lewd acts upon V.S., a 15-year-old child, between May 10, 1991, and May 10, 1992 (counts 7 and 8 -- § 288, subd. (c)(1)); a lewd act upon K.F., a child under 14 years of age, between September 1, 2001, and September 1, 2002 (count 9 -- § 288, subd. (a)); and a lewd act upon L.F., a child under 14 years of age, between September 1, 2001, and September 1, 2002 (count 10 -- § 288, subd. (a)). A special circumstance alleged that in counts 5 through 8 the statute of limitations was extended pursuant to section 803, subdivision (g) (hereafter section 803(g)).

A jury trial followed. The following scenario emerged from the testimony given at trial.

C.G. -- Counts 1 and 2

C.G., born at the end of 1990, moved with her mother, siblings, and defendant into a mobile home in January 2001.^[2] C.G.'s mother, a recovering methamphetamine addict, violated her parole and returned to prison in October 2001. C.G. and her siblings moved in with their aunt. In March 2002, after her release from prison, C.G.'s mother moved back in with defendant.

Defendant's molestation of C.G. began when she was 11. Defendant told C.G. to masturbate him, held her hand to make her grab his penis, then moved her hand in a back and forth motion until â€