People v. Toti CA1/5

Filed 11/17/14 P. v. Toti CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A137670 v. GARY ALBERT TOTI, (Marin County Super Ct. No. SC175399A) Defendant and Appellant.

Defendant and appellant Gary Albert Toti (defendant) appeals from his convictions for sodomy of a child and other sexual abuse charges. He contends the trial court erred in refusing to give the jury a pinpoint instruction. We reject that contention, but modify the award of presentence custody credit. PROCEDURAL BACKGROUND Defendant was charged by amended information with sodomy of a child 10 years old or younger (Pen. Code, § 288.7, subd. (a);1 counts one and two), oral copulation with a child 10 years old or younger (§ 288.7, subd. (b); count three), and lewd acts upon a child under 14 years old (§ 288, subd. (a); counts four, five, and six). A jury found defendant guilty as charged. The trial court sentenced defendant to 25 years-to-life in prison on count one, and imposed concurrent sentences of 25 years-to-life on count two and 15 years-to-life on count three. The court imposed concurrent sentences of eight years on counts four, five,

1 All further undesignated statutory references are to the Penal Code.

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and six. Defendant received 175 days of actual custody credit on all counts, and 26 days conduct credit on counts four, five, and six. FACTUAL BACKGROUND The victim, Emma Doe (born 5/03), lives in Fontana with her mother, father, and older brother. Defendant is married to the victim’s paternal grandmother. Defendant and his wife lived in Novato, where the victim and her brother would come for visits, sometimes with their parents and sometimes on their own. In March 2011, the victim told her mother that she “had sex with grandpa,” referring to defendant. The victim explained that there was “a lot” of mutual touching and that “he stuck his doodle in her butt.” “Doodle” was the word the victim used to refer to a penis. The victim’s mother called the police. Officer Kirsten Ryn spoke to the victim alone. The victim told the officer that defendant “stuck his doodle in her butt.” Officer Ryn testified, “She told me that her grandfather had stuck his doodle in her butt, that it hurt when he put it all the way in, that, sometimes, it would be sticky when he took it out.” The victim told the officer that the most recent incident had occurred during a Thanksgiving 2010 visit while the victim and defendant were watching television on defendant’s bed. The victim also described other incidents to Officer Ryn not relevant to the issues on appeal. The victim was interviewed at the Children’s Assessment Center by a “forensic interview specialist.” The victim described various acts of sexual abuse by defendant. She said defendant put his penis “in” her “butt” on various occasions and described the sensation in detail. In April 2011, the victim made a pretext call to defendant. The victim said she did not want to “have sex anymore.” Defendant said “don’t worry about that” and “I agree with that.” The victim said it hurt when he put his doodle “in” her “butt,” and defendant responded, “Well if you don’t be crazy anymore and I know that’s inappropriate and we won’t do that.”