Opinion
D058709
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. CORNELIO CARRILLO DE LA CRUZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS223388)
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
A jury convicted Cornelio Carrillo De la Cruz of two counts of engaging in sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a); all further statutory references are to the Penal Code) and five counts of committing a lewd act upon a child under the age of 14 years (§ 288, subd. (a)). In connection with three of the lewd act counts, the jury found De la Cruz had substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). The trial court sentenced De la Cruz to a determinate term of 10 years and an indeterminate term of 50 years to life.
FACTS
Ana A. met De la Cruz while both were working at a Denny's restaurant, and they became friends. When Ana needed a place to live in 2006, De la Cruz offered to let her rent a bedroom in his apartment for her and her two daughters—S.A., who was 11 years old at the time, and C.A., who was four years old at the time.
Eventually Ana and De la Cruz started a romantic relationship. Ana started sharing De la Cruz's bedroom and the two sisters shared the other bedroom. De la Cruz also stopped charging Ana, who was not working, rent. After some time, Ana found a job working the graveyard shift at a Vons grocery store.
S.A. testified that one day she saw De la Cruz and C.A. tongue-kissing and hugging while he was on his knees. S.A. told Ana what she had seen, and her mother replied De la Cruz was kissing C.A. because he viewed her as a daughter. When S.A. said it was adult kissing, Ana ignored her.
At trial, S.A. related three instances of molestation while Ana was at work. One night De la Cruz suggested that he and the two sisters sleep together on the living room floor. While S.A. was trying to go to sleep, De la Cruz said: "If I taste your private part, it tastes like oranges." S.A. reluctantly agreed after De la Cruz threatened to molest C.A. De la Cruz licked S.A.'s vagina, pulled his penis from his pants and spit on it and put his penis inside her vagina. Afterward, S.A. went to her bedroom and cried. S.A. did not tell Ana because she did not think her mother would believe her.
S.A. also testified one night she had gone to sleep wearing her school uniform. That night someone touched her while she was sleeping and pulled down her skirt and underwear. S.A. told Ana, but her mother said she was lying and accused her of trying to sabotage her relationship with De la Cruz.
On another occasion, S.A. testified that De la Cruz told her to take her clothes off, fondled her and inserted his penis into her vagina and anus.
On July 31, 2007, De la Cruz, Ana and her daughters moved into another apartment. At this residence, S.A. was able to avoid being molested by De la Cruz. S.A. testified that she saw De la Cruz lying on top of C.A., whose underwear was pulled down.
At trial, C.A. related an instance in which De la Cruz kissed her, fondled her and put his penis inside both her vagina and anus. Afterward, C.A. was "bleeding red" and De la Cruz was "bleeding white. C.A. testified De la Cruz put his penis in her anus and vagina more than 10 times and threatened to hit her with a belt if she told anyone.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether the trial court erred by denying De la Cruz's motion to dismiss the entire jury panel; (2) whether the court's in limine rulings were correct; (3) whether it was error to allow an amended information to conform to proof; (4) whether the court erred by denying De la Cruz's motion for mistrial; (5) whether the court erred in sentencing De la Cruz; and (6) whether the court erred in imposing fees, fines and victim restitution.
We granted De la Cruz permission to file a brief on his own behalf. De la Cruz has responded.
De la Cruz argues the trial court erred by not dismissing the jury panel, which he claims was tainted by comments made by some prospective jurors. After the court read the 18 charges against De la Cruz and asked if the nature of the charges would prevent anyone from being fair, a number of prospective jurors indicated it would and explained why. Two of these people said they were disgusted and nauseous by the charges. Defense counsel argued these comments tainted the entire jury panel and asked the court to dismiss the panel and begin voir dire again with a new panel. The court denied the request. We find the court acted within its discretion. "[D]ischarging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant," and the trial court has broad discretion to determine whether or not possible bias or prejudice against the defendant has so severely contaminated the entire venire that its discharge is required. (People v. Medina (1990) 51 Cal.3d 870, 889.) None of the comments by the prospective jurors was so inflammatory as to warrant the dismissal of the entire jury panel.
De la Cruz faults trial counsel for not informing him of his right to call witnesses. However, De la Cruz fails to explain how the testimony of his "family members" and "acquaintances" would be relevant at trial and how he was prejudiced by the absence of such testimony. Thus, De la Cruz cannot show ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687-696.)
De la Cruz asserts that S.A. lied during her testimony because she did not want him to marry her mother. He points to the jury's acquittal of all charges involving S.A. De la Cruz also asserts Ana testified falsely because she wanted to regain custody of her children. These assertions are no more than requests to reweigh the evidence on appeal, which is not the function of an appellate court. " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' " (People v. Lewis (2001) 26 Cal.4th 334, 361.)
De la Cruz also claims the two indeterminate terms were improper because the trial court believed there were more victims than C.A. despite the jury's acquittal of charges involving S.A. We disagree; De la Cruz has taken out of context the court's remark at the sentencing hearing about the family being victimized.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issue. Competent counsel has represented De la Cruz on this appeal.
DISPOSITION
The judgment is affirmed.
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McINTYRE, J.
WE CONCUR:
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NARES, Acting P. J.
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McDONALD, J.