People v. Montes CA4/3

Filed 2/24/15 P. v. Montes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049413

v. (Super. Ct. No. 12CF2042)

JOSE MARIA MONTES, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Franciso P. Briseno, Judge. Affirmed. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Jose Maria Montes of committing a lewd act (count 1) and sodomy (count 2) with a child under 10. (Pen. Code, §§ 288, subd. (a), 288.7, subd. (a); all further statutory references are to the Penal Code.) The court sentenced defendant to an indeterminate term of 25 years to life on count 2, plus a concurrent six-year sentence on count 1. Defendant claims prosecutorial misconduct during closing argument, ineffective assistance of counsel, and sentencing error. These claims are meritless and we affirm the judgment. FACTS In early 2010, Maria D., her husband, Ramon M., and Jose C., Maria’s then eight-year-old son, moved from El Salvador to a one-bedroom apartment in Santa Ana. In October 2010, Ramon invited defendant to live with them. Maria, Ramon, and Jose shared the bedroom and defendant slept on a couch in the living room. On occasion, Maria and Ramon left Jose with defendant. Jose sometimes told Maria he did not like defendant. The household arrangement with defendant held until 2012. Then, in late June 2012, Maria started working from 1:30 p.m. to 10:30 p.m. Ramon worked from 2:00 p.m. to 11:30 p.m. Although one of the neighbors had primary childcare responsibility for Jose while his parents worked, Maria and Ramon occasionally asked defendant to fulfill this role. At the end of June, Ramon left the United States to vacation in El Salvador. A few days later, July 2, Maria left Jose home with defendant while she went to work. Jose testified that after his mother left for work, he decided to watch television. He threw a cushion on the floor in front of the television and sat down. Jose was wearing sleeping shorts, underwear, and a top. A few minutes later, defendant came out of the bathroom and asked Jose if he wanted a massage. Jose said, no but defendant touched him anyway. Defendant,