People v. Garay CA2/6

Filed 2/18/15 P. v. Garay CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B255152 (Super. Ct. No. BA400692) Plaintiff and Respondent, (Los Angeles County)

v.

WILVER GARAY,

Defendant and Appellant.

Wilver Garay appeals from the judgment entered after a jury convicted him of three counts of engaging in sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a));1 one count of engaging in oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b)); and two counts of committing a lewd act upon a child under the age of 14 years (lewd act). (§ 288, subd. (a).) Appellant was sentenced to prison for 43 years to life. Appellant contends that the evidence is insufficient to support his conviction of both counts of committing a lewd act. He argues that there was only one act of "lewd touching." Therefore, one of the two lewd act convictions must be reversed. We disagree. We modify the judgment to impose a required court operations assessment (§ 1465.8) and affirm the judgment as modified.

1 All statutory references are to the Penal Code.

Facts Y. C. has four children. Appellant is the biological father of two of the children. He is not the biological father of Gabriela M., who was born in 2002. Y. C. began living with appellant in 2006. They never married. At the time of trial in November 2013, Gabriela M. was 11 years old. She testified as follows: One day when she was 10 years old, appellant licked her breasts and had sexual intercourse with her. This was the only time that appellant touched her breasts. On another occasion when she was 10 years old, appellant ordered Gabriela M. to remove her clothes. She complied because appellant was holding a knife. Appellant put the knife to Gabriela M.'s neck and said, "Do you want to live or die?" She replied that she wanted to live. Appellant told her to "open" her legs. Gabriela M. opened her legs, and appellant had sexual intercourse with her. On a third occasion when Gabriela M. was 10 years old, appellant told her to go into the bathroom and remove her clothes. After she had removed them, appellant "separated" her legs, put shampoo on her vagina, and had sexual intercourse with her. On one of the three occasions, Gabriela M. said that she was going to tell her mother about appellant's conduct. Appellant replied that, if she told her mother, he would kill both of them. Because of this threat, Gabriela M. did not inform her mother about the incidents. After appellant was arrested, Gabriela M. told a registered nurse that, when she was nine years old, appellant had put his penis inside her mouth. She told a clinical psychologist, Dr. Lydia Joseph-Hernandez, that appellant had sucked her breasts on four separate occasions. Discussion The jury convicted appellant of two lewd act offenses. During closing argument, the prosecutor told the jury that these offenses were based on appellant's touching of Gabriela M.'s breasts. Appellant contends that, because Gabriela M. testified that he had touched her breasts on only one occasion, the evidence is insufficient to show two lewd act offenses.