People v. Fitz CA4/3

Filed 9/22/15 P. v. Fitz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G048921

v. (Super. Ct. No. 12NF1227)

MARCO ESTEBAN BAHENA FITZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Marco Esteban Bahena Fitz was charged with two counts of lewd and lascivious acts with a child under 14 years of age. (Pen. Code, § 288, subd. (a); all further statutory references are to the Penal Code.) Count 1 alleged he kissed his stepdaughter on the lips, and count 2 alleged he touched her breasts. A jury convicted Fitz on count 1 but acquitted him on count 2. Fitz challenges the sufficiency of the evidence to show he kissed stepdaughter with lewd intent as required by section 288, subdivision (a). Although not overwhelming, we find sufficient evidence to support the judgment. FACTS Fitz lived with the victim’s mother and younger siblings in Anaheim in 2010 when the inappropriate touching took place. The incident came to light in April 2012, when the victim took part in an afterschool program. After one of the other girls said her father had touched her in a sexual way, the victim said Fitz inappropriately touched and kissed her when she was younger, and then she started to cry. A couple of weeks later, a Child Protective Services (CPS) worker and police officers went to the victim’s home to interview her. She told the CPS worker that in 2009 or 2010, when she was 10 or 11 years old, Fitz touched her breasts over her clothing and kissed her on the lips. The kiss happened when she and Fitz were alone in the kitchen. He kissed her on the lips for about 10 seconds with their mouths open, and then told her to tell no one about it. She did not want to kiss Fitz, but she let Fitz kiss her because she was afraid of and loved him. She felt scared, uncomfortable, and like she was doing something wrong. Mother initially denied knowing anything about the alleged incident, but later she admitted seeing Fitz kiss her daughter in the kitchen. She also told the investigators that she confronted Fitz and then tried to commit suicide. She said she did not want Fitz arrested because he contributed to their finances.