Opinion
F087032
06-25-2024
THE PEOPLE, Plaintiff and Respondent, v. RAYMUNDO LOPEZ CASIMIRO, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. No. MCR065074 Dale J. Blea, Judge.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
STATEMENT OF APPEALABILITY
This appeal is from a resentencing held after a remand ordered by this court in Casimiro's prior appeal (People v. Casimiro (May 17, 2023, F083362) [nonpub. opn.]) and is authorized by Penal Code section 1237.
All statutory references are to the Penal Code unless otherwise stated.
STATEMENT OF THE CASE
On July 19, 2021, a jury found Casimiro guilty of aggravated sexual assault of a child by rape (§§ 269, subd. (a)(1), 261, subd. (a)(2); count 1), forcible sexual penetration of a child under age 14 (§ 289, subd. (a)(1)(B); count 2), and forcible lewd acts on a child under age 14 (§ 288, subd. (b)(1); count 3). On September 21, 2021, the trial court sentenced him to the upper term of 12 years on count 2, plus the upper term of 10 years on count 3 to run consecutively to the term imposed on count 2, for a total determinate term of 22 years. The court also sentenced him to an indeterminate term of 15 years to life on count 1.
In Casimiro's prior appeal, this court reversed his sentence and remanded for resentencing. (People v. Casimiro, supra, (May 17, 2023, F083362) [nonpub. opn.].)
At the resentencing hearing held October 13, 2023, the trial court reduced the originally imposed determinate term by four years, sentencing Casimiro to 10 years on count 2, eight years consecutive on count 3, and 15 years to life in count 1.
On October 18, 2023, Casimiro filed a timely notice of appeal. The trial court subsequently amended Casimiro's award of presentence custody credits to reflect an award of 1,374 actual days and 93 days of presentence conduct credit, for a total award of 1,467 days.
The amended abstract of judgment filed after the resentencing hearing and the correction of Casimiro's presentence credits wrongly lists the date sentence was pronounced as September 21, 2021, the date of the original sentencing hearing, instead of October 13, 2023, the date of the resentencing hearing. (See, People v. Mitchell (2001) 26 Cal.4th 181, 185 [clerical errors in abstract of judgment may be ordered corrected at any time]; see also People v. Burke (2023) 89 Cal.App.5th 237, 244 [ordering correction of clerical errors in abstract of judgment following Wende review].)
Facts are taken verbatim from our prior opinion (People v. Casimiro (May 17, 2023, F083362) [nonpub. opn.].)
I. Prosecution's case
In February 2016, when she was 13 years old, F. moved from Mexico to the United States to live with her aunt and uncle in Madera. Within days of moving into her aunt's apartment, she got a job as an agricultural worker, working with her aunt and uncle at a place where Casimiro was the foreman.
Casimiro was born in 1984 and lived in the apartment next door to F.'s aunt and uncle. He sometimes grabbed and hugged F. at work, and he told her she had pretty eyes. F. got a different job in summer 2016 and no longer worked with Casimiro.
One day in August 2016, when she was still 13, F. stayed home because she was told there was no work for her that day. Her aunt and uncle went to work and she stayed home alone. Around noon, she took the trash out and saw Casimiro outside in his van. She went back inside and lied down on the recliner in the living room. She was lying face up, partly covered with a blanket, and looking at her phone when she heard the front door opening. She pulled the blanket over her head and pretended to be asleep. She did not see that it was Casimiro coming inside.
Casimiro took the blanket off F. and knelt next to her. F. asked him what he was doing inside the apartment, and Casimiro said that F.'s aunt intended to sell her to him. Casimiro grabbed F.'s hands, putting them in one of his hands, and got on top of her. He used his other hand to take off F.'s shorts and underwear. He touched her vagina with his hand and digitally penetrated her for "quite a while." He removed his finger and inserted his penis into her vagina and had sexual intercourse with her, also for "quite a while." F. told Casimiro that he was hurting her and asked him to stop. F. tried resisting but was too weak. Casimiro stopped having sex with her when she started bleeding from her vagina.
Casimiro ran from the apartment soon after F. began bleeding. But before he left he told F. that her aunt told him she (F.) wasn't working that day, and said that her aunt knew what he planned to do. He also said that "they" would not believe her anyway. F. testified the assault felt like it lasted over an hour, but she did not know for sure.
F. threw away the blanket and the clothes she had been wearing because she wanted no one to see the blood. She testified she felt dirty. She walked to the home of a friend from her new job and moved in with her. She did not call police because she thought that she would be "taken away" because she was a minor.
F. lived with her friend for about two months. During that time, she told her father, who was still in Mexico, that she wanted to move to Salinas. She testified she wanted to move there because there was more work and it was not as hard. Her father put her in touch with a friend in Salinas named Guadalupe and F. moved in with her. About two years after the rape, F. told Guadalupe what Casimiro did to her, and Guadalupe's husband called police.
F. spoke with a Salinas police detective. In October 2019, the detective set up a pretext phone call between F. and Casimiro using the detective's department-issued phone, which was recorded and played for the jury. During the short call, F. talked about Casimiro raping her, but Casimiro denied wrongdoing. Throughout that night and into the next morning, Casimiro repeatedly called the detective's phone but the detective did not answer.
The detective, posing as F., exchanged text messages with Casimiro. Printouts of the text messages were admitted as an exhibit. Casimiro also sent an audio message to the detective's phone which was also played for the jury. In the text messages, the detective told Casimiro that she (F.) wanted to move back to Madera and wanted him to promise not to rape her again if she moved back. Casimiro replied, "[W]hy do you say that if you know that it wasn't like that[?]" The detective asked, "Do you promise not to have sex with me again?" Casimiro replied, "Why[?]" The detective said, "Because I'm a child[.]" Casimiro answered, "I don't think so[.]" Casimiro never admitted to raping her but also never denied having sex with her. Casimiro told her that he had loved her and offered to get F. her own apartment if she moved back to Madera.
II. Defense case
Casimiro testified in his own defense and denied having any sexual contact with F. and denied going into F.'s apartment. He claimed he called and texted F. because he wanted to know why she was making these allegations against him.
APPELLATE COURT REVIEW
Casimiro's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel indicating Casimiro was advised he could file his own brief with this court. By letter on May 10, 2024, we invited Casimiro to submit additional briefing. To date, he has not done so.
Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to Casimiro.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the first amended abstract of judgment to reflect the correct date of resentencing, October 13, 2023, and to further reflect that the execution of sentence imposed was at resentencing per decision on appeal. The corrected abstract should be forwarded to all appropriate parties.
[*] Before Detjen, Acting P. J., Meehan, J. and Snauffer, J.