Opinion
E066837
02-06-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO CRUZ, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1303507) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDUERAL HISTORY
On July 15, 2016, an information charged defendant and appellant Francisco Cruz with continuous sexual abuse under Penal Code section 288.5, subdivision (a) (counts 1 and 2); forcible rape of a child under Penal Code section 261, subdivision (a)(2) (counts 3 and 5); and aggravated sexual assault of a child under Penal Code sections 261, subdivision (a)(2) and 269, subdivision (1)(1) (count 4). As to all counts, the information alleged a multiple-victim circumstance under Penal Code section 667.61, subdivisions (b) and (3).
On July 19, 2016, the trial court amended the information to include an allegation of forcible lewd conduct under Penal Code section 288, subdivision (b) (count 6). That same day, defendant pled guilty to counts 1, 2 and 6, in exchange for a stipulated prison term of 30 years—a 12-year term for count 1, a 12-year term for count 2, and a six-year term for count 1. (Pen. Code, § 667.6, subd. (d).) The plea agreement included a waiver of defendant's right to appeal.
On August 16, 2016, defendant addressed the court and requested to withdraw his plea. The trial court denied the motion and then imposed the agreed-upon prison term. The court awarded defendant 1,174 days of presentence confinement credit under Penal Code sections 2900.5 and 2933.1. Additionally, the court imposed restitution and parole revocation fines under Penal Code sections 1202.4, subdivision (b)(1) and 1202.45.
On September 7, 2016, defendant filed a timely notice of appeal. On the same day, the trial court granted defendant's request for a certificate of probable cause.
Because defendant pled guilty, the facts are taken from the preliminary hearing transcript. --------
Defendant was born on May 16, 1954. He and his wife had four children together, including Doe1 (born December 1997), and Doe2 (born January 2000). Between January and September of 2002, the family lived in Apple Valley. Thereafter, the family moved to Victorville and stayed there until 2008. From September 2011 through January 2012, the family lived in Apple Valley again. From January 2012 through October 2013, the family lived in Victorville.
1. DOE1
On or about October 24, 2013, a discussion between Doe1's teacher and another student about the other student's baby prompted Doe1 to tell the teacher that she did not understand Doe1's life. A referral to a school counselor followed; Doe1 informed the counselor that she was a victim of sexual abuse. A police investigation ensued. San Bernardino Sheriff's Deputy Kristina Winegar interviewed Doe1
Doe1 told Deputy Winegar that starting at age five, defendant began to touch her breasts and vagina. These molestations continued until Doe1 reached the age of 11. They took place in the family residence during time periods when she and defendant were alone.
According to Doe1, defendant first attempted to have sexual intercourse with her when she was about 11, then tried again between May and July of 2012. Defendant's attempt to have sexual intercourse took the form of him penetrating the tip of his penis into her vagina over Doe1's protestations to stop.
On another occasion, Doe1 snuck out with her boyfriend then returned to the family residence. The next morning, defendant woke her and placed his mouth on her vagina. He also inserted his penis in her vagina and then ejaculated.
In June of 2013, defendant told Doe1 to go into the bathroom, where he ignored her protests, placed her on the counter, and inserted his penis into her vagina. He ejaculated inside her.
Doe1 estimated that between 2012 and 2013, defendant had sexual intercourse with her on five or six occasions. Doe1 also informed the police that between the ages of 5 and 6, she orally copulated defendant.
The police were unable to ascertain the total number of sexual contacts defendant had with Doe1
2. DOE2
According to Doe2, defendant began "making out" with her, i.e. kiss and touch her in bed, when she was about four or five years old. When Doe2 was about seven years old, defendant tried to "touch her." When she was in the third or fourth grade, defendant would place his mouth on Doe2's vagina.
When Doe2 was older, she bent over at defendant's command, and he tried to stick his fingers into her vagina. On that occasion, he also inserted his penis into her vagina. She told defendant that intercourse hurt her, but he ignored her. When Doe2 started to cry loudly, defendant withdrew his penis and went into a bathroom.
In 2013, defendant had intercourse with Doe2 when she was on her period.
The police were unable to ascertain the total number of sexual contacts that defendant had with Doe2 The sexual contacts with Doe2 took place at times when no one else could detect what was happening.
3. PRETEXT CALLS AND AFTERMATH
At the request of the police, Doe1 participated in a pretext telephone call with defendant. She told her father that, as a result of his past transgressions, she did not want to move to Texas, where he was living at the time. Defendant admitted to Doe1 that what he did to her was wrong. He also informed Doe1 that if she told others about his conduct, he would get in trouble.
San Bernardino County Deputy Sheriff Jonathan Anderson informed defendant's wife that Doe1 and Doe2 had complained that defendant had sexually abused them. The wife informed the deputy that Doe1 had told her a few weeks earlier that defendant had touched her inappropriately. At the time, defendant's wife did not believe her daughter. The wife stated she did not know about any sexual contact between defendant and either of their daughters.
In 2013, at Deputy Anderson's request, the wife made a pretext telephone call to defendant; he admitted that he had sexual intercourse with Doe2.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.