P. v. Tingirides

Filed 5/26/06  P. v. Tingirides 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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.  Bernard Schwartz, Judge.  Affirmed.

            Shawn R. Perez for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.

            Defendant was charged with:

            Count 1:  Sexual penetration of a minor with a foreign object (Pen. Code, § 289, subd. (i)).

            Count 2:  Forceful oral copulation of a minor (Pen. Code, § 288a, subd. (c)(2)).

            Count 3:  Oral copulation on an unconscious person (Pen. Code, § 288a, subd. (f)). 

            Counts 4 through 54:  Committing a lewd or lascivious act on a child under 16  (Pen. Code, § 288, subd. (c)(1).

            Counts 55 through 57:  Employing a minor in the production or distribution of obscene matter (Pen. Code, § 311.4, subd. (c)).

            The jury convicted defendant on counts 4 through 57 but could not reach a verdict on counts 1, 2, and 3, and those counts were dismissed.  The court imposed two years on count 4 and eight months, consecutive, on each remaining count, for a total of 37 years 4 months as accurately reflected in the abstract of judgment.^[1]

            At trial, the court admitted extensive evidence of uncharged sexual conduct of defendant, pursuant to Evidence Code sections 1101 and 1108.^[2]  In this appeal, defendant challenges the admission of that evidence and other evidence and contends his sentence was cruel and/or unusual punishment.  We affirm the judgment.

I

FACTS

            The victim in this case, referred to at trial and in this opinion as Jane Doe, was born in October 1985.  When Jane Doe was a year and a half old, her mother divorced her father. 

            Jane Doe's mother met defendant through her work, and they began dating.  After about six months, defendant abruptly disappeared.  She did not hear from defendant until he called her a year and a half later.  Defendant explained he had been going through counseling because he had a womanizing problem.  Until he finished his treatment, he needed to be away from her, because he didn't want to treat her the way he had been treating other women.

            The two resumed dating, and in May 1993, they married.  He was 33, and she was about 31.  Defendant had also been married before.  For the sake of confidentiality, we will refer to Jane Doe's mother as Mrs. Tingirides, even though she and defendant are no longer married.

            A.        Charged Offenses

                        1.         Convicted counts -- 4 through 57

            In about 1997, when Jane Doe was 12, she began working at defendant's trucking business.  She started becoming closer to defendant about that time, because she did not get along with her mother.  She had been going through puberty, and defendant started making comments to let her know he was noticing her development.  He also started asking her questions, such as whether she had ever â€