People v. Garcia CA2/6

Filed 9/28/15 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B259047 (Super. Ct. No. 2012037506) Plaintiff and Respondent, (Ventura County)

v.

JULIO GARCIA,

Defendant and Appellant.

Julio Garcia appeals after a jury convicted him of forcible oral copulation (Pen. Code,1 § 288a, subd. (c)(2)), kidnapping to commit rape (§ 209, subd. (b)(1)), assault with intent to commit rape during a burglary (§ 220, subd. (b)), attempted forcible rape (§§ 261, subd. (a)(2), 664), and elder adult abuse (§ 368, subd. (b)(1)). As to the charge of forcible oral copulation, the jury found true the special circumstance allegation that appellant kidnapped the victim and that the movement substantially increased the risk of harm within the meaning of the One Strike Law. (§ 667.61, subds. (a) & (d)(2)). The trial court sentenced him to a state prison term of 32 years to life plus 5 years and awarded 1,356 days presentence custody credit, consisting of 678 days actual custody credit and 678 days good conduct credit.

1 All further statutory references are to the Penal Code.

Appellant contends the evidence is insufficient to support his conviction of kidnapping to commit rape and the true finding on the special circumstance allegation. In their response, the People assert that the judgment should be modified to reflect an award of 780 days presentence custody credit, consisting of 678 days actual custody credit and 102 days good conduct credit. We agree with the People and shall order the judgment modified accordingly. Otherwise, we affirm. STATEMENT OF FACTS Sufficiency of the Evidence Appellant's convictions arise from a sexual assault he committed on his 83-year-old grandmother, M. The attack took place at M.'s house in Moorpark. M. shared her residence with J.M., who rented out part of the attached garage, and D.N. and her husband, who rented out the spare bedroom. Prior to the attack, appellant had a good relationship with M. and visited her every week at her house in Moorpark. Appellant was homeless at the time and occasionally came over to use an outdoor shower in M.'s backyard. On the morning of the incident, M. went out to the porch at the side of her house and sat down to take her medications. Appellant arrived and told M. he was going to use the outdoor shower. After appellant took the shower, he returned to the porch and picked M. up out of her chair. M. was frightened and loudly screamed for help. She fought, kicked, and hit appellant with a plastic bottle in an effort to prevent him from taking her into the house. M.'s efforts were not successful. Appellant carried her into the house, through the kitchen, and into her bedroom, a total distance of 31 feet and 5 inches. He threw M. on the bed, closed the bedroom door, and pulled her pants and underwear down to her knees while restraining her with his legs. Appellant pulled down his own pants and M. hit him in the head with a wooden lamp. She eventually stopped hitting appellant because she feared she would kill him. By then appellant had exposed his erect penis and was trying to penetrate M.'s vagina. M. grabbed appellant's penis and