Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CF1103, Gary S. Paer, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury convicted defendant Gabriel Zarate of three counts of rape of a child under age 14 and more than 10 years younger than defendant (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2); all further statutory references are to this code), three counts of sodomy of a child under age 14 and more than 10 years younger than defendant (§§ 269, subd. (a)(3), 286, subd. (c)(2)), and one count of oral copulation on a child under age 14 and more than 10 years younger than defendant (§§ 269, subd. (a)(4), subd. 288a (c)(2).) The court sentenced him to 5 consecutive terms of 15 years to life for the 3 rape charges, 1 of the sodomy charges, and the oral copulation charge, and to 2 concurrent terms of 15 years to life for the remaining sodomy charges. Defendant was also ordered to pay $200 fines for restitution (§ 1202.4, subd. (b)), parole revocation (suspended) (§ 1202.45), and as a sex offender, the latter of which also included penalty assessments, and a $140 court security fee. (§ 1465.8.) He was awarded 717 days of actual time credit and 108 days for good conduct.
Defendant’s wife discovered him in the bathtub with their then eight-year-old daughter; they were both naked, defendant was on his knees with his penis erect, and the victim’s legs were spread wide open. Just before the mother opened the door, she heard the victim say in Spanish, “No, Papi, no.”
The next day, the victim told a social worker who was a member of the child abuse services team (CAST) that defendant had done this many times beginning when she was seven years old. She described what defendant had done to her the day before essentially the same way as her mother did as set out above. She also told the social worker that defendant had penetrated her anus three times since she was seven years old. When defendant had performed these acts, the victim had asked him to stop, and told him that it hurt and she did not like it. She had been afraid to tell her mother what defendant was doing to her because defendant had threatened he would hit her with a wet belt until her body was swollen and red. The victim also said that defendant had asked her to kiss his penis and pulled her head toward it.
At trial the victim testified and physically demonstrated that defendant had penetrated both her genital area and her anus on various occasions; she also described the one incident of oral copulation. The video of the CAST interview was played to the jury.
After defendant was arrested and Mirandized (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), he admitted that five or six times he had rubbed his penis on the outside of the victim’s genital area but denied penetrating her. He also admitted one incident of oral copulation.
We appointed counsel to represent defendant on appeal, who filed a brief that set forth the facts of the case. Counsel did not argue against defendant, but advised the court he had not found any issues to present on defendant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) He made no suggestions of potential issues that might have assisted us in our independent review of the record.
Defendant was given 30 days to file written argument on his own behalf and submitted a supplemental brief and a subsequent letter, which we treat as an additional supplemental brief. He essentially argues the evidence was insufficient to convict him, claiming that “the jury failed to look at both sides of the evidence” and “simply just ignored the evidence given by the defendant’s side.” Neither the record nor the law bears this out. The facts set out above are sufficient evidence to support the convictions.
Defendant’s claims that the forensic nurse who examined the victim shortly after the final incident testified “the victim was in fact never touched or bothered according to all the test results.” Not so. The nurse had performed over 2,300 examinations of people claiming sexual assault, including about 350 on children age 11 and under. Although she testified she found no injuries to the victim’s genitals or anal area, she also stated this was consistent with the information she had been given by the investigating police officer. Normal examinations are consistent with penetration in 80 to 90 percent of the examinations, and she would not expect to see any injury even if the defendant had penetrated the victim’s genital area or anus.
Further, the jury was instructed to “impartially compare and consider all the evidence that was received throughout the entire trial.” (CALCRIM No. 103, italics added.) Nothing in the record shows the jury did not follow that instruction, and we must presume it did. (People v. Boyette (2002) 29 Cal.4th 381, 436 [jury presumed to follow instructions].)
Defendant also claims there are missing transcripts of the jury selection. Defendant is not entitled to this portion of the transcript absent a showing of good cause, i.e., that there was some error during this period of the trial. (Cal. Rules of Court, rules 8.320(c)(3), 8.324(b) & (c)(2).) There has been no such showing. Defendant also claims there are no transcripts for the year 2006. The record shows that the original complaint against defendant, filed in 2006, was dismissed and refiled in 2007. Any transcripts from the first action have no bearing on and are not part of this appeal. (See People v. Prewitt (1959) 52 Cal.2d 330, 339-340.)
Additionally, the record does not reveal any error based on the fact that the district attorney dismissed the original charges that had been filed against defendant in 2006 and refiled a new complaint in 2007. The refiling occurred within the statute of limitations (§ 800) and there is no evidence to show any reason why the case could not be refiled. (§ 1387, subd. (a).) Nor was it improper for the district attorney to file charges where the sentences added up to the term imposed on defendant, notwithstanding defendant’s claim his lawyer told him the “new charges were not a life sentence.”
We examined the record to determine if any arguable issues were present and found none. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Johnson (1981) 123 Cal.App.3d 106, 111-112.) The judgment is affirmed.
WE CONCUR: MOORE, J., ARONSON, J.