Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF144309. W. Charles Morgan, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Moises Ramirez appeals from a jury verdict; he was found guilty of a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) and a lewd act by force upon a child under the age of 14 (§288, subd. (b)(1)). We affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of trial, the victim was 12 years old. She lived in a house with both of her parents, two sisters, and two brothers. Because the mother was sick and had seizures, the victim’s 20-year-old sister was “kind of like the second mom.” Defendant, who was previously married to the victim’s aunt, was living in the garage of the victim’s home.
The victim kept a journal, so she was able to recall when she was first touched by defendant inappropriately on July 10, 2007. She testified that she walked by defendant in the garage while he was watching television, and he “touched [her] butt” and said he liked it. Between July 10, 2007, and June 2008, the victim testified defendant touched her inappropriately many times and said there were incidents three or four times a week. On August 6, 2007, which was her brother’s birthday, the victim testified she went into the garage thinking defendant was not home. Defendant was hiding and he grabbed her from behind and covered her mouth. He then pulled her pants and underwear down and raped her.
The last incident occurred on Sunday, June 8, 2008. The victim’s mother was sick in bed, and the victim’s siblings went to the store. Remembering she had homework to do, the victim went into the garage to get her backpack. Defendant grabbed her arm from behind, covered her mouth with his hand, pushed her down onto a carpet-covered sofa, and raped her. She tried to stop him, but he had a pocketknife. Sometime during the incident, which lasted about an hour, defendant reached into a storage box, grabbed a “blackish” gun, pointed it at the victim, and said he would kill her family if she told anyone. She did not tell her mother what happened, because her mother was sick.
On the following Monday, the victim told a friend from school that defendant raped her and she was afraid to go home. The friend then told her foster mother, and the foster mother told the principal of the school. On Tuesday, the school counselor talked to the victim while her friend was present, and the victim told the counselor what had happened. The victim said she was bleeding and was still in pain. She also said she obtained a bruise under her left breast, and she showed it to the counselor. The victim’s mother and older sister went to the school; the guidance counselor told them what had happened. The victim’s mother began shaking and had a seizure, so an ambulance was called. Police were also notified about the victim’s allegations against defendant, and an officer went to the school to investigate.
After the responding police officer interviewed the victim, the friend’s foster mother, and the school counselor, he transported the victim to the hospital for a sexual assault and child abuse examination. The victim was examined by a specially trained nurse practitioner, who reported finding not only a bruise on or near the victim’s left breast but also a circular suction injury on her neck and vaginal area redness and tenderness consistent with the victim’s claim of a sexual assault. A police investigator searched the garage and found a BB gun with a black barrel in a wine rack or wine cabinet above a pallet defendant used for a bed.
Defendant was charged with a lewd act upon a child under 14 years of age (§ 288, subd. (a)) (count 1) and a lewd act by force upon a child under 14 years of age (§288, subd. (b)(1)) (count 2). A jury found him guilty on both counts.
On November 3, 2008, defense counsel filed a sentencing memorandum asking the court to sentence defendant to the low term of three years on each count. At the sentencing hearing on December 19, 2008, the People argued it was appropriate for defendant to be sentenced to the upper term on both counts, for a total of 16 years in state prison. The court sentenced defendant to a total of eight years in state prison. To reach the total term, the trial court imposed the middle term of six years on count 2 and added a consecutive term of two years (i.e., one-third the middle term) on count 1.
DISCUSSION
On January 6, 2009, defendant filed a notice of appeal. We appointed counsel to represent defendant on appeal. Appointed counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. On May 20, 2009, we offered defendant an opportunity to file a personal supplemental brief, which he failed to do. We have now concluded our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., MILLER, J.