Opinion
G055744
07-31-2018
THE PEOPLE, Plaintiff and Respondent, v. JAVIER JAIME GARCIA, Defendant and Appellant.
Jeanine G. Strong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF0370) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance P. Jensen, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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A jury found defendant Javier Jaime Garcia guilty of four counts of lewd conduct on a minor under the age of 14 (Pen. Code, § 288, subd. (a); counts 1-4), one count of distributing pornography to a minor (§ 288.2, subd (a)(2); count 5), and one count of misdemeanor annoyance of a child (§ 647.6, subd. (a)(1); count 6). The court sentenced defendant to an aggregate state prison term of six years, comprised of the midterm of six years on each of the lewd act counts, with the sentences to run concurrently, and the midterm of two years on the distributing pornography count, with that sentence also to run concurrently. Sentence was stayed on the misdemeanor child annoyance count. Defendant was credited with 55 days of actual custody and conduct credits of 8 days (§ 2933.1) for total credits of 63 days.
All further statutory references are to the Penal Code. --------
Defendant timely filed a notice of appeal and we appointed counsel to represent him. Counsel did not argue against defendant, but advised the court she was unable to find an issue to argue on defendant's behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given the opportunity to file written argument on his own behalf, but he has not done so.
We have examined the entire record and, like counsel, have not found an arguable issue on appeal. Accordingly, we affirm the judgment.
FACTS
Following our usual standard of review on appeal, we recite the facts "in the light most favorable to the judgment . . . ." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
For the first seven years of her life, the victim lived with her mother and father (defendant) in Santa Ana, California. Then her parents separated, and the victim moved with her mother to San Jose, California. When the victim was eight or nine years old, she visited defendant, one time in Santa Ana for a month during the summer, and a second time when defendant lived in Orange, California. On both visits the victim and defendant shared a bed together.
On the Santa Ana visit, defendant touched the victim's breasts while she was in bed trying to sleep. The touching was done both over and under her pajama top. Defendant also touched the victim's vagina over her pajamas. During the visit with defendant in Orange, defendant touched her in the same way on her breasts, but not on her vagina. The victim could not remember exactly how many times these touching incidents occurred, but she thought it happened more than seven or 10 times on her breasts and two or three times on her vagina.
Sometime in 2015, the victim and her mother came back to Orange and moved in with defendant. The arrangement lasted for about one year. During this time the victim had her own bedroom. She was turning 15 at that time, and had acquired her first cell phone. The victim began receiving text messages from defendant which appeared to be directed to someone else but were being received by the victim. In a subsequent covert telephone call, arranged by the police, defendant acknowledged there was no other party to the text messages. He was sending the text messages to the victim as if he was talking to someone else. The text messages also included pictures. The first picture was a nude picture of defendant. He also sent a picture of a naked female. The victim remembered the text message stating, "This reminds me of my daughter." The victim began blocking the messages on her phone.
The victim and her mother returned to San Jose because the victim told her mother she wanted to go back, but she did not say why. But soon thereafter, in January 2016, the victim came back to Orange to stay with defendant. Her mother was having financial problems and the victim was not getting along very well with her mother. This time, the victim shared a bedroom with defendant. She would sleep on the bed and defendant slept on the floor at the foot of the bed where the victim slept. The victim would hear defendant masturbating at night and the text messages from defendant started up again. The victim recalled receiving messages that said: "I would like to have photos of my daughter's breasts. They are very pretty"; "I'm going to masturbate later. My daughter is in the kitchen and she will come in and see me with an erect penis"; "I don't know what happened to me, but I always wanted to see my daughter naked. Today I saw her go into the shower and saw her in her red thong. Just thinking about it excites me."
On February 8, 2016, the victim told a school counselor about these events, and the police were called. After a one hour 39 minute covert telephone call between the victim and defendant, arranged by the police, defendant was arrested and his cell phone was confiscated. Police compared the text messages on defendant's cell phone with the messages on the victim's cell phone. Eleven multi-media messages were sent from defendant to the victim. Six of the 11 showed defendant naked, and five showed naked females. One of the photos showed defendant's erect penis, wet with ejaculate. The accompanying text message said, "A lot of milk, ha, ha, ha." Another photo showed defendant holding his erect penis with the message "Hey, did you like this photo?"
DISCUSSION
To assist the court in its independent review of the record (Anders v. State of California (1967) 386 U.S. 738), counsel suggested we consider whether substantial evidence supports the conviction on four counts of lewd conduct with a minor under the age of 14 in violation of section 288, subdivision (a), and in particular, whether the evidence was sufficient to show defendant had the required specific "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [defendant or the victim]." (§ 288, subd. (a).)
"[T]he circumstances of the touching remain highly relevant to a section 288 violation. The trier of fact must find a union of act and sexual intent [citation], and such intent must be inferred from all the circumstances beyond a reasonable doubt. A touching which might appear sexual in context because of the identity of the perpetrator, the nature of the touching, or the absence of an innocent explanation, is more likely to produce a finding that the act was indeed committed for a sexual purpose and constituted a violation of the statute." (People v. Martinez (1995) 11 Cal.4th 434, 452.) A section 288 violation can be committed by "'any touching' of an underage child" (ibid.), But here, the touching was of the breasts and vagina of a sleeping child. Under these "highly relevant" (ibid.) circumstances, it is nigh impossible to imagine defendant having any purpose, other than to arouse, appeal to, or gratify his sexual desire. Thus, the jury was entitled to infer the requisite intent from the very act of touching these parts of the body while the child was trying to sleep.
Our review of the entire record has not disclosed any issue reasonably arguable on appeal.
DISPOSITION
The judgment is affirmed.
IKOLA, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.