People v. Gonzales CA2/2

Filed 1/8/14 P. v. Gonzales CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B244935

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA119346) v.

FREDRICK GONZALES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Higa, Judge. Affirmed.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Fredrick Gonzales appeals from the judgment entered upon his conviction by jury of two counts of lewd acts with a child under the age of 14 (Pen. Code, § 288, subd. (a)).1 Appellant contends the prosecutor committed prejudicial misconduct requiring reversal of the judgment. We find no error and affirm. FACTS 1. Procedural Background Appellant was charged by amended information with four counts of committing lewd acts on a child between September 1, 2001 and June 1, 2002. The jury found appellant guilty on counts 2 and 3, and not guilty on count 4. The jury was deadlocked on count 1. The trial court declared a mistrial as to that count and it was dismissed. Appellant brought a motion for new trial based in part on prosecutorial misconduct. The trial court denied the motion. The trial court sentenced appellant to the low terms of three years on counts 2 and 3 and ordered them to run concurrently. 2. Prosecution Evidence C. G. is appellant’s half sister. They have the same father but different mothers. C. testified that when she was a child she lived in a three bedroom house with appellant, her sister Emily G., her brother Francisco, her aunt Cathy, her uncle Ralph, and her grandparents. C. and Emily shared a bedroom. Appellant and Francisco slept in the den. On January 25, 2011 C. reported to law enforcement that appellant performed lewd acts on her between September 1, 2001 and June 1, 2002. Appellant was 19 years old at the time of the incidents described herein.2 C. was in the fifth grade and was 11 years old. C. was cleaning her bedroom when appellant walked in and closed the bedroom door. Appellant guided C. to the bed and started rubbing her vagina over her clothes. He