P. v. Spicuglia

Filed 6/30/06 P. v. Spicuglia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 San Bernardino County. David Cohn, Judge. Affirmed.

Valerie G. Wass, 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, Arlene Aquintey Sevidal and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury found that defendant Russell Spicuglia committed two acts of lewd conduct upon a child, in violation of Penal Code^[1] section 288, subdivision (a). Defendant was sentenced to 10 years in state prison.

Defendant appeals, contending that (1) his constitutional rights were violated when the jury was instructed with CALJIC No. 2.20.1; (2) the trial court abused its discretion by imposing an upper-term sentence; and (3) his upper-term sentence is constitutionally invalid.

Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Defendant, age 34, lived with his grandmother, Delphine Irwin, in Phelan. Ms. Irwin's six-year-old granddaughter, Amy, and Amy's 10-year-old brother also lived in the home in the summer of 2004. Defendant slept on a couch in the dining room and he would regularly watch cartoons with Amy in the morning while they were lying on the couch.

Michelle Vilanoweth, defendant's half-sister, testified that she arrived at the home on September 21, 2004, at about 7 a.m. As she entered the home she saw defendant lying on the couch on his back. Amy was lying on her back on top of his stomach. Defendant had his hand under her pajama top and he was rubbing her chest and stomach. Although Amy would frequently lie on top of defendant while watching morning cartoons, Ms. Vilanoweth thought that the touching was inappropriate.

Later that day, Ms. Vilanoweth saw Amy scratching her genital area and asked her what was wrong. Amy said she had a rash. Ms. Vilanoweth told Amy no one else should be scratching her there, and Amy replied that defendant had done so a couple of times.

Amy testified that she would frequently lie on top of defendant to watch cartoons. She stated he touched her private parts once and he touched her on her chest.

Ms. Vilanoweth asked Ms. Irwin to ask defendant to leave the home. Ms. Irwin did so, and defendant did leave for several days. When he returned, Ms. Irwin called the police.

As noted above, defendant was charged with two counts of lewd conduct with a child. The jury found him guilty, and defendant does not contest the sufficiency of the evidence to support the conviction.

DISCUSSION

A. CALJIC No. 2.20.1

Defendant contends that CALJIC No. 2.20.1 is unconstitutional because â€