People v. Madrid CA2/8

Filed 8/14/14 P. v. Madrid CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, B251575

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA059521) v.

MOISES ENCARNACION MADRID,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, 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, Chung L. Mar and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and Respondent.

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Contending he was denied his right to cross-examine his then-six-year-old daughter E., appellant Moises Encarnacion Madrid appeals from the judgment following his convictions for sexual offenses against her. We affirm.

FACTS AND PROCEEDINGS

Appellant Moises Encarnacion Madrid is the father of victim E., who was born in 2006. Appellant and E.’s mother were married but separated in 2008. During the weekend of August 31-September 2, 2012, E. stayed with appellant in his home under appellant’s and mother’s visitation agreement. When appellant returned E. to mother’s custody at the end of the weekend, mother saw that E. seemed uncharacteristically quiet. When mother asked if anything happened over the weekend, E. said appellant had touched her “pee pee,” which E. demonstrated with a “circular rubbing motion.” Mother reported appellant to law enforcement and child welfare authorities. The People filed an information alleging appellant had committed a lewd act upon a child under the age of 14 years, misdemeanor child molesting, and sexual penetration of a child 10 years old or younger. Appellant pleaded not guilty. At trial, E. testified that she slept in appellant’s bed during her visit. One night while she was in bed, appellant touched her “private part” by putting his finger inside her “pee pee” ten times. When the prosecutor asked E. additional questions about how appellant touched her, E. was largely unresponsive, many of her answers consisting of two or three words or sometimes no answer at all. After E.’s repeated failure to answer questions, the court suggested it might be easier for E. to demonstrate with her hands how appellant touched her. Accordingly, E. stood and, turning toward the jury, silently demonstrated appellant’s conduct by putting one finger of her right hand inside her left hand with which she made a circular motion. Appellant’s defense at trial was he believed E. had wet the bed while asleep, and he had checked the outside of her underwear to confirm his suspicion. He denied placing his hand inside her underwear or touching her sexually.