P. v. Guajardo CA5

Filed 7/8/13 P. v. Guajardo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F063335 Plaintiff and Respondent, (Super. Ct. No. VCF238624) v.

JOHN JOSEPH GUAJARDO, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge. Robert L. S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- John Joseph Guajardo was convicted of molesting his two granddaughters many times over a period of several years and received a determinate sentence of 19 years 8 months plus an indeterminate sentence of 90 years to life. He challenges his conviction

on count 11, exhibiting harmful matter to a minor with intent to seduce (Pen. Code, § 288.2, subd. (a)1). He argues that the evidence was insufficient to support a finding of an intent to seduce and that the court should have instructed the jury on a lesser-included offense. We reject these arguments. Guajardo and the People agree that an erroneously imposed restitution fine should be stricken and that the abstract of judgment must be amended to correct a clerical error. We order the necessary corrections and affirm the judgment. FACTUAL AND PROCEDURAL HISTORIES Guajardo has two granddaughters, A.G. and K.G. The district attorney filed an information charging Guajardo with 14 counts of sex offenses against them. Counts 1 through 10 alleged that Guajardo committed lewd acts against A.G., a child under 14. (§ 288, subd. (a).) Count 11 alleged that Guajardo showed A.G. a video depicting sexual conduct with intent to arouse the sexual desires of himself and A.G. and with intent to seduce A.G. (§ 288.2, subd. (a).) Count 12 alleged that Guajardo communicated with A.G. with intent to commit a sex offense. (§ 288.3, subd. (a).) Counts 13 and 14 alleged that Guajardo committed lewd acts against K.G., a child under 14. (§ 288, subd. (a).) Counts 1 through 10, 13, and 14 included the special allegation that Guajardo committed the offenses against more than one victim. (§ 667.61, subds. (b), (e)(4).) A.G. was 15 years old at the time of trial. The evidence at trial showed that Guajardo began touching her sexually when she was five or six years old. When she was 10, Guajardo began giving her gifts and demanding sex in return. In her testimony, A.G. described acts including vaginal intercourse, her masturbation of him, his placing his mouth on her breasts and vagina, his touching of her breasts and vagina, and open- mouthed kissing.