People v. Rodriguez CA2/2

Filed 12/18/14 P. v. Rodriguez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B252980

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA125898) v.

TOMAS PENA RODRIGUEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Higa, Judge. Affirmed.

Marcus Gomez, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General and Pamela C. Hamanaka, Deputy Attorney General, for Plaintiff and Respondent.

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Tomas Pena Rodriguez (defendant) challenges his convictions for committing lewd acts upon a child on the grounds that his confession should have been suppressed and that his trial counsel should have tried to introduce evidence that the victim had lied about the death of two family members to an elementary school teacher. We reject these arguments, and affirm defendant’s convictions and eight-year prison sentence. FACTS AND PROCEDURAL BACKGROUND Defendant and his wife adopted P. (Daughter) when she was eight months old. When Daughter was 12 years old, defendant came into her bedroom one night, placed his head between her naked legs, and licked her vagina until she awakened. Daughter told her best friend; her best friend’s mother; the officer who responded when the best friend’s mother called the police; the forensic nurse who examined her; the police detective who interviewed her; and the social worker who spoke with her a month later. Daughter also reported that defendant had groped her breasts and buttocks, as well as stuck his tongue in her mouth, starting when she was 10 years old—both at home and when she went with him to work. The forensic examination revealed no injury, which was consistent with the type of contact Daughter reported. Defendant admitted to police that it was “possible” that he kissed her vagina when “the temptation came over” him. The People charged defendant with four counts of committing a lewd act upon a 1 child (Pen. Code, § 288, subd. (a) ). Count 2 pertained to the bedroom incident; count 3, to multiple acts of kissing over the prior two years; count 4, to fondling her at home over the prior two years; and count 5, to fondling her at work over the prior two years. The People further alleged that these crimes involved “substantial sexual conduct” with a child under the age of 14 (§ 1203.066, subd. (a)(8)). (The People originally charged continuous sexual abuse (§ 288.5, subd. (a)), but dismissed that count prior to trial.) Defendant went to trial. Daughter denied that defendant had touched her, and denied telling anyone that he had. Defendant then called Daughter’s sister, the sister’s