California Court of Appeal Apr 17, 2025 No. E083639Unpublished
Filed 4/17/25 P. v. Barba CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083639
v. (Super.Ct.No. RIF2100259)
DAVID JUNIOR BARBA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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I.
INTRODUCTION
A jury found defendant and appellant David Junior Barba guilty of sexual
penetration with a foreign object while the victim was unconscious of the nature of the
act (Pen. Code,1 § 289, subd. (d)). In a bifurcated proceeding, defendant admitted that he
had suffered a prior serious felony conviction (§ 667, subd. (a)) and two prior strike
convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)). After the trial
court denied defendant’s motion for new trial and motion to strike the prior strike
convictions, the trial court sentenced defendant to 25 years to life with credit of
2,345 days for time served. The court also ordered defendant to pay a $300 restitution
fine (§ 1202.4, subd. (b)), a suspended $300 parole revocation fine (§ 1202.45, subd. (c)),
a court operations assessment of $40 (§ 1465.8, subd. (a)(1)), and a $30 criminal
conviction assessment fee (Gov. Code, § 70373). The court struck the prior serious
felony conviction.
Defendant appeals from the judgment. Appointed counsel has filed a brief under
the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende), requesting this court to
conduct an independent review of the record to determine whether there are any arguable
issues on appeal. In addition, defendant has had an opportunity to file a supplemental
brief with this court and has not done so. After independently reviewing the record, we
1 All future statutory references are to the Penal Code.
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find no arguable error that would result in a disposition more favorable to defendant and
affirm.
II.
FACTUAL BACKGROUND
On November 25, 2020, defendant, who was Jane Doe’s cousin, digitally
penetrated Jane’s vagina while she was sleeping on a bed. Specifically, Jane returned
home to a studio apartment in Riverside that she shared with her brothers. When she
arrived home after working a 12-hour shift, her brothers were there with defendant. After
she took a shower, put on underwear and sweat clothes, she laid on a bed in a corner of
the living room. Defendant and her brothers were in the room.
Defendant came over and sat on the edge or corner of the bed. Jane fell asleep
lying on her side near the wall. Around 4:00 or 5:00 a.m., she woke up because she felt
something in her vagina. When she opened her eyes, she saw defendant next to her with
his hand inside her sweatpants and underwear and his fingers inside her vagina. Jane
yelled at him to get away from her and to get out. Her brothers were asleep in the same
room, and her yelling awakened them. Jane told her brothers that defendant had put his
hand in her pants. Her brothers confronted defendant and chased him out of the
apartment. As he ran away, he said, “I’m sorry, [Doe].”
The next day, Jane called the police around 4:00 or 5:00 p.m. Riverside Police
Department Officer Joel Leandro responded to her apartment at 5:50 p.m. and took Jane’s
statement and collected the clothes she had been wearing. Jane’s physical examination
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revealed no physical injury, and Jane did not complain of any physical pain or
discomfort.
Jane’s mother testified for the defense that, at the time of this incident, she was
visiting family in Mexico. Jane had called her on November 26, 2020, the following day,
and told her that when she woke up defendant was on the bed asleep but not close to her.
Jane also stated that she dreamt someone had put his finger in her vagina but when she
woke up there was no one. Jane’s mother did not speak about this information to anyone
from the District Attorney’s office until December 7, 2021.
One of Jane’s brother also testified for the defense and similarly stated that, days
later, Jane told him it was like a bad dream, but it was nothing. Jane’s brother admitted
he did not tell anyone about this information until July 25, 2022.
Officer Leandro testified that when he questioned Jane’s brother on November 25,
2020, the brother did not say anything about the incident being fabricated or being a
dream. Jane testified that she did not tell either her mother or her brother that it was a
dream. Jane adamantly testified that it was not a dream and that defendant put his fingers
inside her vagina.
III.
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to
represent him. Upon examination of the record, counsel has filed a brief under the
authority of Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738
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(Anders), setting forth a statement of the case, a summary of the facts and potential
arguable issues and requesting this court to conduct an independent review of the record.
Counsel has identified two potential issues of whether the trial court erred in denying
defendant’s motion for new trial and whether the court erred in denying defendant’s
motion to strike his strike convictions.
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so.
An appellate court conducts a review of the entire record to determine whether the
record reveals any issues which, if resolved favorably to defendant, would result in
reversal or modification of the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442;
People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders, supra, 386 U.S. at p. 744; see
People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the entire record for potential error and find no arguable error
that would result in a disposition more favorable to defendant.
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IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
McKINSTER Acting P. J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for sexual penetration with a foreign object after conducting an independent review of the record pursuant to People v. Wende and finding no arguable error.
Issues
Did the trial court err in denying the defendant's motion for a new trial?
Did the trial court err in denying the defendant's motion to strike his prior strike convictions?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.”