People v. McNary CA2/3

Filed 3/26/14 P. v. McNary CA2/3 Received for posting 4/29/14 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B246546

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA089270) v.

JUAN McNARY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Affirmed. Waldemar D. Halka, 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 Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Juan McNary was convicted of lewd act upon a child under age 14 (Pen. Code, § 288, subd. (a)), following a court trial.1 He was sentenced to state prison for three years. He contends substantial evidence does not support the verdict. We affirm. FACTS 1. Prosecution. Defendant gave a statement to the police. In the end of January 2011, defendant’s nephew and Mike, age 13, were messing around at the residence where defendant, age 44, lived with members of his family, and Mike kept talking about how big his penis is. Mike dared defendant to “suck his dick.” Defendant went into his room in the garage, and Mike followed him. Defendant was the sole occupant of the garage. Mike wanted defendant to “suck his dick.” He pulled his pants down and told defendant to “ ‘suck my dick.’ ” Defendant got to his knees and started to do it for a minute. Defendant had his mouth on Mike’s penis for a second. Then, realizing that what he was doing was wrong, defendant got up and walked out. Mike followed him and kept saying he wanted defendant to finish. Defendant told Mike to leave him alone and went to the porch of the house to smoke a cigarette. At the screen door of the porch, Mike pulled out his penis and started “jacking off” for about a minute, stating he wanted defendant to finish. Defendant told Mike to stop, and Mike stopped. Defendant went back to the garage, telling Mike not to follow him. Defendant did not feel a sexual attraction to minors and had never had a sexual incident with a minor before. Defendant preferred partnerships with men all his life. Defendant was sorry he said yes to the dare, and it should have never happened. Mike testified concerning the incident. Mike was hanging out with one of defendant’s nephews. The nephew asked Mike if he wanted to get his penis sucked by defendant, and Mike said okay. The nephew and defendant went into the garage. Mike followed them. Defendant asked Mike to take his pants off. The nephew left.