People v. Nicolas CA2/6

Filed 6/17/15 P. v. Nicolas CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B254334 (Super. Ct. No. 1350158) Plaintiff and Respondent, (Santa Barbara County)

v.

FELIX FEDERICO NICOLAS, JR.,

Defendant and Appellant.

Felix Federico Nicolas, Jr. appeals his conviction, by jury, of two counts of solicitation of murder (Pen. Code, § 653f, subd. (b));1 two counts of forcible lewd act upon a child (§ 288, subd. (b)(1)); two counts of aggravated sexual assault of a child, oral copulation (§ 269, subd. (a)(4)); four counts of aggravated sexual assault of a child, forcible rape (§ 269, subd. (a)(1)); four counts of aggravated sexual assault of a child, sexual penetration (§ 269, subd. (a)(5)); one count of oral copulation of a child under the age of 14 (§ 288a, subd. (c)(1)); and one count of attempted sodomy of a person under 18. (§§ 664/286, subd. (b)(1).) The trial court sentenced appellant to state prison for a determinate term of 11 years, 4 months on the solicitation of murder counts, and an indeterminate term of 195 years to life on the remaining counts. Appellant contends the trial court erred in admitting unduly prejudicial evidence of uncharged sex offenses under

1 All statutory references are to the Penal Code unless otherwise stated. 1

Evidence Code section 1108 and that Evidence Code section 1108 violates his due process and equal protection rights. We affirm. Facts Jane Doe 1 and Jane Doe 2 are sisters who lived in Santa Maria with their mother, M. M. worked at a low-wage job and the family moved frequently, from one motel, apartment or rented room to another. Between about 1998 and 2003, the family often shared their motel room or other housing with appellant and his then wife, Hope Costello. The children referred to appellant as "Daddy Nick." He told the girls that he was their godfather. He would live with them, move out for awhile and then move back in with the family. Jane Doe 1 was 9 years old when appellant began sexually abusing her. For the next four years, appellant regularly abused Jane Doe 1 by touching her vagina and breasts, orally copulating her, forcing her to orally copulate him, digitally penetrating her, raping her and sodomizing her. Jane Doe 1 described 11 specific sexual assaults perpetrated against her by appellant; she also testified that appellant had molested her "too many times to count." These sexual assaults occurred when M. was at work and the girls were being watched by appellant. She never told anyone about the abuse because appellant told her "they" would be mad at her and that people would be jealous. Appellant's sexual abuse of Jane Doe 1 stopped in 2003, when she turned 13 and ran away from home. In 2011, Jane Doe 1 had a weekend visit with her family in Santa Maria while she was participating in a drug rehabilitation program. There, she learned that appellant had moved back to Santa Maria and was asking about her. This news scared Jane Doe 1. She went to the police and reported appellant's abuse. Jane Doe 2 described two specific incidents during which appellant digitally penetrated her. The first occurred when Jane Doe 2 was 8 years old. The second incident occurred when she was 9 or 10 years old. Appellant told Jane Doe 2 she would get in trouble if she told anyone what he had done. Two other women testified they had been molested by appellant when they were children. Christina J. testified that she was 13 years old when she met appellant.