Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA062004, Lisa B. Lench, Judge.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FLIER, J.
Ruben Omar Olivares appeals his conviction for child molestation. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. He was notified that he could file his own brief and has not done so.
PROCEDURAL HISTORY
All three counts of the felony information involved appellant’s daughter, D.D. Count 1 alleged a lewd act on or between March 1, 2003, and July 31, 2003 (Pen. Code, § 288, subd. (a) (section 288(a)). Count 2 alleged continuous sexual abuse between September 1, 2003, and December 31, 2003. Count 3 alleged another violation of section 288(a), between January 1, 2004, and March 31, 2004.
Subsequent code references are to the Penal Code unless otherwise stated.
Appellant waived a jury trial, on condition that he receive no more than eight years in prison, on one of the section 288(a) counts.
The court found appellant guilty on count 1 and not guilty on counts 2 and 3. He was sentenced to prison for the upper term of eight years.
FACTS
The court heard conflicting evidence on the issue of guilt.
1. Prosecution Evidence
D.D. was in the eighth grade when the trial occurred in 2007. She testified that the sexual incidents with appellant occurred “more than ten times” in 2003 and 2004, when she was in the third and fourth grade, at the apartment where appellant lived with his mother and other relatives. During the incidents, appellant pulled her pants and underwear partway down and inserted his penis into her vagina and rectum. He also sometimes made her masturbate him. He wanted her to orally copulate him, but she refused. During the final incident, some “white clear stuff” came out of his penis, and he told her, “Don’t tell anybody or else.” At first, she did not tell anyone, as she feared him. When she was in the fifth grade, she finally told her friend S.P. Then, she told her school principal, a social worker, her mother, and the police.
D.D.’s mother testified that she did not know about the incidents at the time they occurred, but D.D. received medical treatment around that time for swelling and redness in her genital area.
S.P. described how D.D. told her about the incidents.
Dr. Lynne Ticson, an expert on the subject of child sexual abuse examinations, examined D.D. on November 30, 2004. In Ticson’s opinion, the exam neither proved nor disproved sexual abuse, which D.D. said had ended eight months earlier. The only evidence of actual penetration was a “labial fusion,” and that can result from sexual abuse or from another source of irritation.
2. Defense Evidence
In the opinion of Dr. Earl Fuller, an obstetrician and gynecologist, the findings in the forensic medical report were inconsistent with vaginal penetration by a fully erect male penis. On cross-examination, Dr. Fuller indicated that if there had been rubbing against the labia, without penetration, there would be no physical evidence eight months later.
Jeffrey N. Younggren, a forensic psychologist, described the relationship between memory and childhood trauma.
Dr. Armando Pacheco, who was D.D.’s physician between March 1999 and March 2003, testified that there was no evidence of sexual abuse during D.D.’s routine examinations during that period. On cross-examination, Dr. Pacheco indicated that D.D. did not have a labial fusion, as of his last examination.
Appellant’s mother, Graciela Olivares, testified that she was in the house when D.D. was there with appellant, and she knew nothing about a problem.
Police Detective Rebecca Minor conducted a taped interview of D.D. on December 21, 2004. Minor described the interview. On cross-examination, portions of the tape were played in open court. D.D. essentially said the same things that she said at the trial, except she told Minor there were “about 20 times” that appellant molested her.
3. Prosecution Rebuttal Testimony
The social worker who interviewed D.D. testified that D.D. told her that she was afraid of appellant, as he took his pants off and touched her private parts against her will, when they were alone in his room.
Maria Rodriguez, an investigator for the Los Angeles County Public Defender’s Office, interviewed appellant’s mother. Appellant’s mother told her that she left the apartment to go to swap meets while D.D. was inside the apartment with appellant.
Appellant testified that he was “shocked” by D.D.’s accusations, which were not true. On cross-examination, he admitted that he had previously been convicted of possession for sale of phencyclidine.
ANALYSIS
Having reviewed the entire record, and applying the appropriate standard of review (People v. Kraft (2000) 23 Cal.4th 978, 1053), we find that there was substantial evidence to support appellant’s conviction. We further find that appellant’s attorney has fully complied with her responsibilities, and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 276; People v. Kelly (2006) 40 Cal.4th 106, 123-124;Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, ACTING P. J., BIGELOW, J.