California Court of Appeal Jul 16, 2015 No. E062410Unpublished
Filed 7/16/15 P. v. Grimaldo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E062410
v. (Super.Ct.No. FVI1401572)
RICARDO GRIMALDO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed.
Gregory L. Cannon, under appointment by the Court of Appeal, and Ricardo
Grimaldo, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
On October 2, 2014, a jury found defendant and appellant Ricardo Grimaldo guilty
of one count of sexual intercourse with a child under the age of 10 (Pen. Code, § 288.7,
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subd. (a); count 1);1 one count of sodomy with a child under the age of 10 (§ 288.7,
subd. (a); count 2); one count of oral copulation with a child under the age of 10 (§ 288.7,
subd. (b); count 3); and two counts of sexual penetration with a child under the age of 10
(§ 288.7, subd. (b); counts 4 & 5). As a result, defendant was sentenced to a total term of
95 years to life in state prison with credit for time served as follows: two consecutive
terms of 25 years to life on counts 1 and 2, plus three consecutive terms of 15 years to life
on counts 3, 4, and 5. Defendant appeals from the judgment. We find no error and will
affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Between approximately October 2012 and February 2014, defendant lived in a
four-bedroom house with his girlfriend and her daughter, another unrelated adult male,
and the owner of the home and her three children. Defendant and his girlfriend occupied
one bedroom while defendant’s girlfriend’s daughter stayed in a second bedroom, the
adult male stayed in a third bedroom, and the owner of the house and her three children
occupied the master bedroom.
Jane Doe, who was nine years old at the time of trial, testified that on one occasion
defendant told her to go into his bedroom and lie on the bed. Defendant accompanied
Jane into the bedroom, closed the door, and then pulled her shirt up and began kissing
Jane’s stomach, breasts, knees, mouth, and neck. Defendant also pulled down Jane’s
1 All future statutory references are to the Penal Code unless otherwise stated.
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pants and penetrated her vagina and buttocks with his fingers. Jane further testified that
on other occasions defendant penetrated her vagina and buttocks with his penis; that he
licked her vagina; that he touched and kissed her breasts; and that he ejaculated in her
vagina and buttocks. Jane described the ejaculation as feeling “like slime” and “greasy.”
Jane stated that defendant had molested her a lot of times on many different days
in various locations in the home. However, the abuse occurred mostly in defendant’s
bedroom while his girlfriend was at work. Jane also testified that after defendant
molested her, defendant always told her not to tell anyone. Jane eventually disclosed the
molestations to her mother on February 21, 2014. After Jane’s mother confronted
defendant with the allegations, defendant packed his belongings and left the home.
San Bernardino County Sheriff’s Detective Charles Phillips made contact with
defendant at his place of employment on March 21, 2014. After informing defendant that
he was conducting an investigation into the allegations made against him by Jane,
defendant stated that he understood and accompanied Detective Phillips to the police
station, riding in the front seat of the detective’s vehicle. Defendant stated that he
planned to turn himself in to authorities after he returned from Mexico; that when he
reentered the United States he turned himself in to the authorities because he was a child
molester; and that the authorities had released him and told him to contact local
authorities when no warrants for his arrest were found during a warrant check.
Defendant further stated that he began to cry when Jane’s mother confronted him about
the allegations and that he felt badly about what had happened. Defendant initially
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denied the allegations but eventually admitted that he had put his penis in Jane’s vagina,
but claimed to do so only from the side.2 Defendant also admitted penetrating Jane’s
buttocks with his finger on three occasions on the same day but denied penile penetration.
Defendant agreed that he had molested Jane one time in the buttocks and one time in the
vagina, but denied actual penetration as well as ejaculation.
Defendant ultimately told Detective Phillips that he had first molested Jane in the
kitchen, penetrating her buttocks with his finger. The second incident occurred in
defendant’s bedroom where defendant digitally penetrated Jane’s vagina and buttocks
two or three times and orally copulated Jane. Defendant agreed that he had pulled Jane’s
pants down and penetrated her buttocks with his penis, but also denied that he had
actually penetrated her buttocks. Defendant eventually admitted that he had penetrated
Jane but had immediately pulled out because he had not meant to penetrate Jane.
Defendant testified on his own behalf. He stated that he had tried to turn himself
in to border patrol agents when he returned from Mexico because someone was looking
for him, claiming he was a child molester. Defendant testified that he had molested Jane
twice—once in his bedroom and once in the kitchen. He believed that all of the
molestations occurred within the span of a month and admitted to digitally penetrating
Jane’s buttocks in the kitchen and orally copulating Jane in his bedroom. Defendant
denied touching and penetrating Jane’s vagina during the bedroom incident but later
2 Defendant’s interview with Detective Phillips was video recorded and the video was played for the jury at the time of trial. A transcript of the interview was also distributed to the jury and admitted at trial.
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admitted to touching Jane’s vagina. Defendant admitted to digitally penetrating Jane’s
buttocks. Defendant denied ever penetrating Jane’s vagina with his penis and claimed
that he was lying when he told Detective Phillips that his penis had penetrated Jane’s
vagina because the detective was pressuring him. Defendant also denied that he had
penetrated Jane’s buttocks with his penis and that when he spoke with Detective Phillips
he was referring to the cheeks of Jane’s buttocks. Defendant further claimed that his
English was not very good; that there were many times during the interview that he did
not know the English word he was trying to say; and that he needed an interpreter during
the interview.
On August 8, 2014, an information was filed charging defendant with one count of
sexual intercourse with a child 10 years old or younger (§ 288.7, subd. (a); count 1); one
count of sodomy with a child 10 years old or younger (§ 288.7, subd. (a); count 2); one
count of oral copulation with a child 10 years old or younger (§ 288.7, subd. (b); count
3); and two counts of sexual penetration with a child 10 years old or younger (§ 288.7,
subd. (b); counts 4 & 5). Following trial, on October 2, 2014, the jury found defendant
guilty as charged.
On November 21, 2014, the trial court sentenced defendant to a total term of 95
years to life in state prison with a credit of 237 days for time served as follows: two
consecutive terms of 25 years to life on counts 1 and 2, plus three consecutive terms of 15
years to life on counts 3, 4, and 5.
On November 24, 2014, defendant filed a timely notice of appeal.
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II
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to
represent him on appeal. Counsel has filed a brief under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a
statement of the case, a summary of the facts and potential arguable issues, and
requesting this court conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. In his four page supplemental brief, defendant generally asserts that there
were “many mistakes made by officers and investigators, [and] District Attorneys, such
as interrogations without having read the accused his constitutional rights . . . and
questioning without the presence of a lawyer.” Defendant generally asserts that his
constitutional rights to due process and equal protection were violated. He further argues
that his appellate attorney provided him with ineffective assistance of counsel because
counsel abandoned the appeal, “refused to listen to appellant and to appellant’s wife”
regarding the actual facts of the allegations, and treated him in an unprofessional manner.
Defendant requests dismissal of his appointed appellate counsel and that he be “assigned
an attorney who is really interested in working and carrying out the legal process” as the
constitution guarantees.
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Following a thorough review of the record, we reject defendant’s general
assertions that his constitutional rights were violated. The record fails to support his
claims.
In addition, we reject defendant’s claim that he was denied effective assistance of
appellate counsel. Defendants have a constitutional right to effective counsel in criminal
cases. (Gideon v. Wainwright (1963) 372 U.S. 335.) The burden is on the defendant to
prove he received ineffective assistance of counsel. To do so, the defendant must show
counsel failed “to act in a manner to be expected of reasonably competent attorneys
acting as diligent advocates,” (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on
other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, which was
overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1) and that
counsel’s acts or omissions prejudiced defendant. (Strickland v. Washington (1984) 466
U.S. 668, 687-688, 691-692.) Failure of “appellate counsel to raise crucial assignments
of error, which arguably might have resulted in a reversal” deprives an appellant of
effective assistance of appellate counsel. (In re Smith (1970) 3 Cal.3d 192, 202.)
We have reviewed the entire record for potential error pursuant to the mandate of
People v. Kelly (2006) 40 Cal.4th 106 and People v. Wende, supra, 25 Cal.3d 436,
including the possible issue referred to pursuant to Anders v. California, supra, 386 U.S.
738, and find no reasonably arguable appellate issue or any arguable error that would
result in a disposition more favorable to defendant. Competent counsel has represented