People v. Villamil CA4/3

Filed 10/15/15 P. v. Villamil 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G049978

v. (Super. Ct. No. 12NF1077)

ESTEBAN ANTONIO VILLAMIL, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

Esteban Antonio Villamil was charged with three counts of aggravated sexual assault of a minor (counts 1, 3 & 5), three counts of committing a forcible lewd act on a child under 14 years old (counts 2, 4 & 6), and three counts of committing a lewd act on a child under 14 years old (counts 7, 8 & 9). The information further alleged Villamil used force, violence, distress, menace, and fear of bodily injury, during the commission of counts 2, 4, and 6, and had substantial sexual conduct with a child under the age of 14 during the commission of count 8. A jury was unable to reach a verdict on count 1 and found Villamil not guilty of the remaining aggravated sexual assault charges (counts 3 & 5). The jury determined Villamil was guilty of the lesser included misdemeanor offense of assault and guilty of the remaining charges. It also determined the substantial sexual conduct allegation was true. The trial court sentenced Villamil to 34 years in state prison. On appeal, Villamil contends the trial court erred in instructing the jury with CALCRIM No. 1111. He explains the instruction violated his constitutional rights because the jury was instructed a child’s consent is not a defense to the crime of a forcible lewd act (Pen. Code, § 288, subd. (b)(1)), and this instruction could have confused or mislead the jury 1 because consent would have negated the element of force. We conclude the contention lacks merit, and we affirm the judgment. I Because the sole issue raised on appeal relates to instructional error, we need only briefly summarize the facts. Suffice it to say, 61-year-old Villamil engaged in numerous sexual acts with his step-granddaughter E.V. The abuse started when E.V. was nine years old and lived in Tijuana with her mother, M.V. (Mother), who is Villamil’s daughter. E.V. slept in the same room as Mother and her stepfather. E.V. stated Villamil touched her breasts and groin, and put his penis in her bottom, which hurt, when no one was home or when everyone was asleep.