P. v. Guerrero

Filed 2/15/07  P. v. Guerrero CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION ONE

            APPEAL from a judgment of the Superior Court of Los Angeles County, George G. Lomeli, Judge.  Reversed.

            Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Herbert S. Tetef and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

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            Jose Guerrero appeals from the judgment entered following a jury trial in which he was convicted of five counts of forcible lewd acts with one child, two counts of lewd acts with a second child, and one count of lewd acts with a third child, with further findings that the victims were vulnerable and defendant took advantage of a position of trust in the commission of the offenses.  Defendant contends that the trial court erred in excluding evidence going to one of the victim's credibility, denying his motion to preclude testimony based on an enhanced tape recording, and discharging a juror during deliberations.  We find prejudicial error in the discharge of the deliberating juror and on that basis reverse without discussion of defendant's other issues, which are unlikely to arise in the same context, if at all, on retrial.

BACKGROUND

            In 2004, Maria V. lived in a two-bedroom house in Los Angeles with her daughters, 19-year-old Sheila G., 13-year-old V.C., 11-year-old Wendy C., and 10-year-old Brenda C.  Also living at the house was 22-year-old defendant, with whom Sheila had a baby in November  2004.  In addition, Ms.  V.'s two sons, 22-year-old Jonathan and 9-year-old Steven were residents of the house.

            V.C. testified that during 2004, defendant approached her during the night on several occasions, waking her.  At first, defendant touched V.C. over her clothes.  He later started touching V.C. under her clothes, and proceeded to make her touch his genitals.  He ultimately raped and attempted to commit sodomy on V.C.  At one point, defendant and Sheila moved out of the house.  During a visit after the move, defendant again raped V.C.

            Brenda testified that on at least two occasions defendant touched her crotch area on top of her underpants in a way that made her feel uncomfortable.  Wendy testified that defendant once touched her crotch area in a way that made her feel uncomfortable and left his hand there until Wendy pushed it away.

            In November  2004, Ms.  V. planned a trip to Utah to see about relocating there.  Defendant and Sheila were to take care of the younger children while Ms.  V. was away.  V.C., fearing that defendant would continue to abuse her, told Ms.  V., who notified the police.  Defendant was soon apprehended.  An officer testified that while being escorted to a police car, defendant â€