People v. Alba CA2/4

Filed 6/24/14 P. v. Alba CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B253117

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA097405) v.

FRANCISCO ALBA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez, Judge. Affirmed. Vanessa Place, 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, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, defendant Francisco Alba was convicted of one count of committing a lewd and lascivious act by force or fear on a child under the age of 14 years. (Pen. Code, § 288, subd. (b)(1).)1 Defendant appealed from the judgment, contending the evidence was insufficient to establish that the degree of force was substantially different from or substantially greater than that necessary to accomplish the lewd act itself. We reject defendant’s contention and affirm.

BACKGROUND

In December 2011, Miriam (then age 12) and her sister Stephanie were staying with a friend of their Aunt Noemi.2 The friend is the mother-in-law of defendant’s cousin Jessica. Jessica and Jessica’s daughter Brianna (then age 18 months) were living at the home. During that time, defendant was living with his uncle and aunt, Amado and Maria, and their son. On Christmas Eve 2011, Amado and Maria hosted a party in their home. The party extended into Christmas morning. In addition to Amado and Maria and their son, defendant, Jessica and her daughter Brianna, Noemi and her nieces Miriam and Stephanie, and Miriam’s father Joaquin also were at the home where the party was held. The party started at about 9:00 or 10:00 p.m. on Christmas Eve. At about 1:00 a.m. the next morning, Jessica placed 18-month-old Brianna on the bed in defendant’s bedroom. At about 2:00 a.m., Jessica took Miriam to the bedroom so that Miriam could sleep next to Brianna. At about 4:00 a.m., defendant went to the bedroom, where Brianna and Miriam were sleeping. According to Miriam, defendant got in bed and sexually assaulted her. She testified that she woke up when she felt defendant trying to place his hand under her pants. She resisted, but defendant began grabbing, squeezing, and touching her vagina