People v. Felix CA2/6

Filed 12/16/14 P. v. Felix CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B251899 (Super. Ct. No. VA123322) Plaintiff and Respondent, (Los Angeles County)

v.

FRANK JAVIER FELIX,

Defendant and Appellant.

An information charged appellant Frank Felix with sexual battery (Pen. Code, § 243.4, subd. (e)(1))1 and continuous sexual abuse of a child (§ 288.5, subd. (a)).2 The first jury deadlocked on both counts, and the trial court declared a mistrial. Following a second jury trial, appellant was convicted of continuous sexual abuse of a child and acquitted of sexual battery. Appellant was sentenced to state prison for a term of six years. The trial court suspended execution of sentence and placed appellant on formal probation for five years with terms and conditions including that he serve 180 days in county jail. The court imposed a $280 restitution fine (§ 1202.4, subd. (b)), a $40 court security fee

1 All statutory references are to the Penal Code unless otherwise stated. 2 Two counts of lewd act upon a child were deleted by interlineation and dismissed by the trial court in the furtherance of justice. (§ 1385.)

(§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). Appellant was awarded nine days of presentence custody credit. Appellant contends that he was denied due process of law and a fair trial when, in instructing the jury, the trial court identified the alleged victims as Gisselle V. and Maria R. He contends that singling them out in this way suggested that he was guilty and that trial counsel provided ineffective assistance by failing to object. He also contends that the trial court erred in denying his motion for mistrial based on the jury's hearing evidence that the trial court had excluded. We affirm. FACTS Prosecution Evidence Gisselle was friends with appellant's daughter, J., from the third through fifth grades. Starting in the fourth grade, when Gisselle was nine years old, she would go over to J.'s house to play or swim in the pool. Appellant would drive her back home. Sometimes J. would ride with them, but more often appellant and Gisselle would be alone. One day when Gisselle was in the fourth grade, appellant drove her home by himself. He told her to sit in the front seat, which she did not always do. When they stopped at a stoplight, appellant reached over, put his hand through the side of her shirt, and squeezed her breast. Gisselle was scared and tried to move away. Appellant asked her if she wanted him to stop, and she said yes. Appellant withdrew his hand and drove her home. Over the next year, appellant touched Gisselle approximately 10 more times on her breast and on her vaginal area over her clothes. He would do this whenever he drove her home and J. was not there. Appellant would also touch Gisselle in the same places when she and J. went swimming. Once, while he was driving her home, he grabbed hold of Gisselle's hand and forcibly tried to place it on his penis, but she pulled away before her hand made contact. When Gisselle had dinner at J.'s house, appellant would rub her leg with his leg underneath the table. Gisselle stopped going to J.'s house at the end of the fifth grade because she "got tired of it" and wanted the touching to stop.