P. v. Francisco

Filed 6/23/06 P. v. Francisco CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed in part, reversed in part and remanded with directions.

Richard Schwartzberg, 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, Assistant Attorney General, Ronald A. Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Juan Francisco challenges his convictions for rape, continuous sexual abuse, and assault with the intent to commit sodomy. He contends the court erred by failing to hold an evidentiary hearing on his motion to present evidence of the sexual conduct of the victim, his longtime girlfriend's daughter. We conclude the court did not abuse its discretion in finding the evidence unduly prejudicial without holding a hearing.

Defendant further contends the court erred by imposing a full consecutive sentence for the assault count. The Attorney General concedes the error. We concur. Thus, we affirm the judgment of conviction, but reverse and remand for resentencing.

FACTS

Defendant started dating the victim's mother in 1990. The victim and her mother began living with defendant about a year later, when the victim was five. Defendant first sexually abused the victim when she was eight years old, while her mother was at the hospital giving birth to the couple's younger son. On that occasion, defendant fondled the victim, digitally penetrated her, and raped her while making her watch a pornographic movie.

Some months later, defendant began sexually abusing the victim three to four times a week. The sexual abuse included fondling, digital penetration, oral copulation, and two or three instances of rape. By the time the victim turned 15 years old, defendant was still sexually abusing her about twice a week. He once attempted anal intercourse, but the victim fought him off. Defendant stopped sexually abusing her when she moved in with relatives at age 16, though she later moved back in with her mother and defendant. Defendant continued to physically abuse her. After an incident of physical abuse in 2003, the victim finally called the police.

The police interviewed defendant. He admitted beating the victim, but denied having sex with her. He admitted twice touching the victim's buttocks when she was 16 years old, but denied other sexual conduct. After additional questioning, he admitted â€