People v. Lomeli CA2/8

Filed 6/8/15 P. v. Lomeli CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B255968

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA100072) v.

MIGUEL A. LOMELI,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.

Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Jason Tran and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

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In this appeal from multiple sex crime convictions, defendant Miguel A. Lomeli argues that the prosecutor’s use of peremptory challenges based on a prospective juror’s race was unconstitutional as explained in Batson v. Kentucky (1986) 476 U.S. 79, 97 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258, 276 (Wheeler). He also argues that the court erred in limiting his expert witness’s testimony by precluding his expert from answering hypothetical questions. We find no error and affirm the judgment. FACTS AND PROCEDURE In the spring of 2012, defendant moved in with his girlfriend and her three children— H., B., and J. At the time defendant moved into their household, H. was six years old, and B. was eight years old. Defendant sometimes babysat the children while their mother worked. H. and B. testified that defendant sexually abused them. 1. H. H. first reported the abuse to her babysitter Nidia Gonzalez. She told Gonzalez that defendant touched her on a daily basis. Gonzalez asked H. to describe how and when defendant touched her. H. responded that defendant licked her anus and vagina, put his penis in her hand, rubbed his penis on top of her vagina, and put his fingers inside her vagina and anus. After reporting the abuse to Gonzalez, H. spoke to Officer Daniel Jauregui. Officer Jauregui did not question her extensively and did not recall the specific questions he asked. H. told Officer Jauregui that defendant rubbed her and inserted his fingers in her vagina. Later, H. told Officer Martha Tate that defendant touched her and licked her private parts. H. also said that defendant touched her anus with his penis. Nurse practitioner Toyetta Beukes examined H. and found that the condition of her genitalia neither confirmed nor denied the reported abuse. According to Beukes, a person may be able to touch a child’s vagina without reaching the hymen, and if that occurred no signs of the abuse would appear during an examination. Nurse Beukes could not conclusively determine whether H. had been abused. When interviewed by child advocate Susana Flores, H. reported defendant touched her many times. He licked her and rubbed her with his penis. Defendant removed her