People v. Mena CA2/6

Filed 10/17/13 P. v. Mena CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B243872 (Super. Ct. No. BA377299) Plaintiff and Respondent, (Los Angeles County)

v.

EDGARDO OTTONIEL MENA,

Defendant and Appellant.

Edgardro Ottoniel Mena appeals his conviction by jury of four counts of lewd 1 acts upon a child under the age of 14 (counts 1-3 & 9; Pen. Code, § 288, subd. (a)) , three counts of aggravated sexual assault of a child by means of rape (counts 4-6; § 269, subd. (a)(1)), and two counts of aggravated sexual assault of a child by means of forcible oral copulation (counts 7- 8; § 269, subd. (a)(4)) with special findings that appellant committed the offenses against more than one victim (§ 667.61, subd. (c)). The trial court denied probation and sentenced appellant to 105 years to life state prison. We affirm. Viewed in a light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 576), the evidence shows the following:

1 All statutory references are to the Penal Code unless otherwise stated.

Counts 1 through 8 - Y. D. During the 2009-2010 school year, 11-year-old Y. D. lived with her parents, her step grandparents, and appellant, her step-uncle. Appellant touched Y.'s vagina on the outside of her clothes and, on other occasions, touched her under her clothing. Appellant warned Y. that if she told anyone, her step-grandmother would die and there would be "problems at the house." Y. knew that the grandmother was in poor health and that "problems at the house" meant that his stepfather would get "crazy" and there would be physical fights. Y. was scared and told no one. Appellant put his penis in her vagina on at least three occasions. The first time, appellant pushed Y. onto his bed, pulled down her pants, restrained her hands, and pushed his penis into her vagina. The next time, appellant entered Y.’s bedroom when Y. and her brothers were asleep. Appellant kept the lights off and pushed his penis into her vagina. Y. was too scared to scream or call out for help. It happened on a Saturday night, while the adult family members were playing cards and drinking in the garage. On three other occasions, appellant forced Y. to orally copulate him. Appellant pushed her down on her knees, forced his penis into her mouth, and pushed on her head until he ejaculated. The third rape occurred when Y.'s parents left the house to pay the rent. Appellant locked Y. in his bedroom, put her face down on the bed, pulled her sweat pants down, and put his penis in her vagina. When a family member came looking for Y., appellant went out the back door. The stepfather screamed at Y. and demanded to know why she was in appellant's room. Y. was too scared to answer. The next week, Y. told her teacher that appellant was putting his private parts into her private parts. Y. also spoke to the police. Los Angeles City Police Detective Brenda Salazar arrested appellant several months later. After advisement and waiver of his constitutional rights; appellant said that Y. would come into his bedroom, lie on the bed, and touch his penis. Appellant stated that Y. was to blame and that she had sexual intercourse with him on two occasions.