Opinion
E053009 Super.Ct.No. SWF10000273
01-13-2012
THE PEOPLE, Plaintiff and Respondent, v. TERRY JOHN WARDRIP, Defendant and Appellant.
Ellen M. Matsumoto, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge. (Retired judge of the former Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
On September 13, 2010, an information charged defendant and appellant Terry John Wardrip (defendant) with oral copulation or sexual penetration of a child 10 years or younger under Penal Code section 288.7, subdivision (b) (count 1); lewd act on a child under 14 years of age under section 288, subdivision (a) (count 2); and violating a protective order under section 166, subdivision (a)(4) (count 3). Defendant pled not guilty. After a trial, a jury found defendant guilty as charged.
All statutory references are to the Penal Code unless otherwise specified.
Count 3 was dismissed prior to trial.
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On February 4, 2011, defendant was sentenced to a total term of 15 years to life, as follows: (1) count 1—15 years to life; (2) count 2—middle term of six years, stayed under section 654. On February 23, 2011, defendant filed a timely notice of appeal.
STATEMENT OF FACTS
Defendant and S.H. had been a couple since 2003; they were married in 2008. They had a daughter together, Jane Doe, who was born in 2004. The three of them lived with S.H.'s three other children from another relationship. Their house, which accommodated six people, had three bedrooms. Although Doe had her own bed in her parents' room, it was common for her to sleep in her parents' bed.
Defendant and S.H. did well as a couple when defendant was working. However, when defendant was not working, he drank too much beer, smoked pot, and did drugs. Defendant's cocaine usage was the last straw for S.H.. She kicked him out of the house when she found cocaine on the dresser. Defendant went to live with his brother.
Three or four days after defendant was kicked out, S.H. and Doe went to visit defendant at his brother's house so S.H. could get her car fixed. Doe seemed happy to see her dad. After the car was repaired, S.H. and Doe went home. That evening, Doe told S.H. that daddy licked her "nani." The term "nani" is their family word for the vaginal area. S.H. did not press Doe for details and Doe did not reveal anything else.
After putting Doe to bed, S.H. called defendant to confront him with Doe's disclosure. When S.H. confronted defendant, he replied that Doe was telling the truth. Both S.H. and defendant cried on the phone.
Later that same night, defendant, S.H., defendant's mother and brother met at defendant's mother's house to discuss what defendant was going to do. They discussed whether defendant should turn himself into the police, and what he should say to them. They were also concerned that defendant would hurt himself or commit suicide. Ultimately, they decided that defendant should turn himself in. Defendant's mother called the police. The police arrived and took defendant to the station.
Investigator William Stens from the Riverside County Sheriff's Department was dispatched to the station to investigate the lewd act allegation. This was the first time he had ever seen anyone turn himself in for a crime like this. Stens told defendant that he was not under arrest and that he could end the interview at any time. Stens further explained that if he decided to arrest defendant, he would stop the interview and read defendant his rights under Miranda v. Arizona (1966) 384 U.S. 436.
During the interview, defendant told Stens that after he consumed a 12-pack of beer and shared a bottle of hard liquor with a friend, late one night, Doe, who was five, came into their bed and snuggled with him. They were lying on their sides and her back was to him. Defendant moved his hand down and fondled her. He then pulled her pants down and licked her "nani" or vagina. The incident lasted about 20 minutes from the time Jane got into their bed. Defendant's wife was in bed as well, but she was sleeping.
Following this statement, Stens read defendant his Miranda rights. Defendant restated that he first fondled Doe's vagina without inserting anything into it, and then he put his tongue on her vagina for 20 to 30 seconds. In addition, defendant admitted to Stens that month before that incident, he touched Doe's vagina. Defendant indicated that he had been drinking that night as well. At the conclusion of the interview, defendant asked Stens to shoot him and then broke down and cried. Stens placed defendant under arrest.
Two days later, Doe was interviewed. Doe stated that her father licks her "nani" with her underwear on. She said that he licked the outside part of the vagina that the underwear covers, and the inside part where the pee comes out. When asked how many times, Doe answered that it was a lot. When asked what defendant's hands were doing when he was licking her vagina, Doe answered that his hands were "touching" her.
At trial, Jane testified that defendant touched her "nani" with his hands but did not lick it. She also stated that her father touched her vagina many times.
According to defendant's mother, defendant had been depressed and suicidal most of his life. His mother sought psychiatric help when he was in kindergarten. Aside from this, however, his mother was not aware of any other medical intervention for his problems.
According to defendant, he suffers from major depression, and his coping mechanism was to abuse alcohol and drugs. After he was placed in custody, doctors prescribed Paxil and Buspar for him. In October of 2009, defendant lost his job. During the months of January and February of 2010, he was feeling suicidal.
Due to his depression, defendant drank every day until he "blacked out." During the period of October of 2009 until February of 2010 when he was arrested, he blacked out 20 times. With regard to molesting Doe, he did not recall the incident. But he woke up one night lying next to Doe and knew that something had happened. With regard to his statement to the police, he fabricated this story in order for him to be placed into custody. Being arrested was better than committing suicide because at least he would be able to see his daughter.
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed briefs 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 conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur:
Richli
J.
Miller
J.