P. v. Castro

Filed 3/17/06 P. v. Castro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Aldo Girolami, Judge.

Derek K. Kowata, 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, Janis Shank McLean and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Carlos Cruz Rodriguez Castro was convicted of one count of attempted lewd and lascivious act and two counts of a lewd and lascivious act with a child under the age of 14. He appeals, claiming his counsel was ineffective in not requesting that the jury be instructed pursuant to CALJIC No. 4.21, voluntary intoxication and its relevancy to specific intent. We affirm the judgment.

Facts

On July 6, 2004, defendant was living with Jorge Escobar. A two-year-old female was visiting their house, watching television with Escobar. Defendant was there and had been drunk for three days. He touched the victim twice on her diapered buttocks as she was lying on her side on the floor. (Count 2--lewd and lascivious act.) He then touched her in the left breast area, pinching and then sweeping his hand across the area. (Count 3 --lewd and lascivious act.)

Escobar told defendant that he shouldn't be touching the victim like that. Escobar told the little girl to go home to her mother, a neighbor, and Escobar yelled at defendant. Escobar testified that defendant was drunk. Although he was drunk, his eyes were not red and he was not speaking differently.

On July 7, 2004, Ramon Zarate was living with defendant. He saw defendant in the backyard. Defendant looked from side to side, pulled his erect penis from his shorts, and walked in the direction of the victim (the same victim from counts 2 and 3), who was in the house at the threshold of the door. As he walked towards the victim, he moved his eyebrows up and down.

Zarate went outside; defendant ran and curled into a fetal position. Zarate grabbed him by the neck. Defendant said â€