P. v. Garnica
Filed 6/6/06 P. v. Garnica 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
| THE PEOPLE, Plaintiff and Respondent, v. JAVIER HUERTA GARNICA, Defendant and Appellant. | E038594 (Super.Ct.No. RIF117263) OPINION |
APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed.
Athena Shudde, 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, Barry Carlton, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
Following a bifurcated trial, a jury found defendant guilty of 10 counts of lewd and lascivious conduct upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)).[1] The trial court thereafter found true that defendant had suffered two prior prison terms within the meaning of section 667.5, subdivision (b). Defendant was sentenced to a total term of 26 years in state prison. On appeal, defendant contends (1) the trial court failed to conduct a proper Marsden[2] inquiry as to his third Marsden motion; (2) the trial court erred in excluding expert testimony about how his cultural background would affect the reliability of his confession; and (3) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed. 2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed consecutive terms. We reject these contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Between 2001 and 2004, defendant molested Jane Doe multiple times. Defendant had been romantically involved with Jane's mother for about eight years and had assumed a stepfather role for Jane. Defendant had also sired Jane's younger half-siblings.
Defendant began molesting Jane when she was nine years old, and the molestations were disclosed when she was 12 years old. He fondled her breasts, both over and under her clothing; swatted her buttocks; and touched her vagina. He also kissed her. On one occasion, he pulled down Jane's pants; on two other occasions, he slipped his hand into Jane's pants, rubbed her vagina, and digitally penetrated her. This behavior continued regularly as long as defendant resided in the home,[3] while Jane's mother was in the shower or outside the home.
Jane's nine-year-old sister saw defendant touch Jane's breasts under her clothing. When defendant pulled up Jane's shirt, Jane would push it back down and cross her arms over her chest. At trial, Jane's sister recalled that she saw defendant touching Jane approximately three times when their mother was outside or in the shower. In a pretrial interview, Jane's sister stated that she witnessed defendant touching Jane six or seven times. Jane's sister also saw defendant pull down Jane's pants.
After defendant waived his constitutional rights, he spoke to detectives in English and Spanish. He initially denied touching Jane but then admitted to touching her breasts. He also confessed to touching Jane's vagina and digitally penetrating her. He claimed that he thought it was his wife and felt bad when he realized it was not. Defendant also admitted to playfully spanking Jane on the buttocks four or five times. He maintained that he rubbed Jane's vagina twice and her breasts five times; at the same time, he stated he touched her once a week for a period of three months beginning in February 2004. In a second interview, conducted in Spanish 45 minutes later, defendant said it was possible he touched Jane's breasts and vagina, and then denied everything.
Defendant's defense was denial, and he presented the testimony of psychologist Dr. Robert Owen. Dr. Owen testified that defendant's sexual preference was for adult females, that he exhibited normal personality traits, and that he lacked indicia of being a predator. Dr. Owen opined that defendant was not a fixated pedophile, although his behavior fit the criteria of a pedophile as outlined in the Diagnostic and Statistical Manual (DSM IV), the â€
