People v. Jaquez CA5

Filed 4/17/14 P. v. Jaquez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065916 Plaintiff and Respondent, (Super. Ct. No. MCR042348) v.

DAVID GARY JAQUEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. David D. Minier, Judge. (Retired Judge of the Madera Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P.J., Peña, J. and LaPorte, J.† † Judge of the Superior Court of Kings County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

INTRODUCTION On June 25, 2012, appellant, David Gary Jaquez, was charged in an information with a count of oral copulation of a child 10 years old or younger by a person 18 years or older (Pen. Code, § 288.7, subd. (b), count 1),1 a count of digital penetration of a child 10 years old or younger by a person 18 years or older (§ 288.7, subd. (b), count 2), a count of lewd and lascivious conduct on a child 14 years old or younger by sucking on the victim’s breast (§ 288, subd. (a), count 3), and a count of lewd and lascivious conduct on a child 14 years old or younger by kissing the victim’s neck and “moving up and down on her” (§ 288, subd. (a), count 4).2 At the conclusion of a jury trial on August 29, 2012, appellant was convicted of all four counts. On October 3, 2012, the trial court sentenced appellant to two consecutive indeterminate terms of 15 years to life on counts 1 and 2, a consecutive determinate term of eight years on count 3, and a consecutive determinate term of two years on count 4. Appellant was ordered to pay a restitution fine of $240 as well as other fines and fees. The court granted appellant 317 days of credits for time served in jail prior to sentencing, 47 days of conduct credits, and total custody credits of 364 days. Appellant filed a notice of appeal on October 5, 2012. Appellate counsel has filed a brief seeking independent review of the case by this court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). FACTS When she testified at trial, Jane Doe was just beginning the fifth grade and had turned 11 years old in April 2012.3 Jane identified appellant as her grandmother’s ex-