Fear Not Law Articles: P. v. Bertao

P. v. Bertao

Filed 9/7/06 P. v. Bertao CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

MANUEL EDWARD BERTAO,

Defendant and Appellant.

F047073

(Super. Ct. No. F98624223-4)

O P I N I O N

APPEAL from a judgment of the Superior Court of Fresno County. Gary S. Austin, Judge.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Manuel Edward Bertao was convicted after jury trial of assault with intent to commit rape and sexual battery by restraint; two prior strikes and two prior prison term allegations were found true. (Pen. Code, §§ 261, subd. (a)(2); 243.4, subd. (a); 667, subds. (a)-(i); 1170.12, subds. (a)-(e); 667.5, subd. (b).)^[1] The judgment was reversed because the trial court failed to conduct a reasonable inquiry into appellant's claim of juror misconduct during deliberations. After a second jury trial, appellant was again convicted of assault with intent to commit rape and sexual battery by restraint; he admitted the two prior strikes and two prior prison term allegations. He was sentenced to 35 years' imprisonment.

Appellant argues the court committed reversible error by refusing to sanitize two prior convictions that were admitted as impeachment evidence on the issue of credibility. He also challenges his sentence as cruel and/or unusual punishment. Neither argument is persuasive. We will affirm.

FACTS

I. Prosecution Evidence

Maria C. testified that on the night of November 18, 1998, she went across the street to watch television with appellant at his house. After watching two episodes of The Drew Carey Show airing at 9:00 and 9:30 p.m., appellant offered to walk Maria home and to check on an inoperable stove in her kitchen.

Upon entering the kitchen, appellant grabbed Maria and tried to kiss her. She repeatedly told him â€

Description	Appellant was convicted after jury trial of assault with intent to commit rape and sexual battery by restraint; two prior strikes and two prior prison term allegations were found true. The judgment was reversed because the trial court failed to conduct a reasonable inquiry into appellant's claim of juror misconduct during deliberations. After a second jury trial, appellant was again convicted of assault with intent to commit rape and sexual battery by restraint; appellant admitted the two prior strikes and two prior prison term allegations. Appellant argues the court committed reversible error by refusing to sanitize two prior convictions that were admitted as impeachment evidence on the issue of credibility. He also challenges his sentence as cruel and/or unusual punishment. Neither argument is persuasive. The appeals court affirmed the decision.
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