People v. Garza CA5

Filed 10/27/15 P. v. Garza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F068425 Plaintiff and Respondent, (Super. Ct. No. MCR044571) v.

RUDOLFO TELLO GARZA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J. and Franson, J.

INTRODUCTION Appellant Rudolfo Tello Garza was convicted of committing a forcible lewd act upon a child, a felony (Pen. Code, § 288, subd. (b)(1)).1 In addition, the court found true an enhancement allegation based upon a prior conviction for committing a lewd act upon a child (§ 288, subd. (a)), which qualified as a prior serious felony (§ 667, subd. (a)(1)) and a strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The conviction also rendered appellant a habitual sexual offender under section 667.71. Appellant was sentenced to 50 years to life plus five years.2 On appeal, he contends the trial court abused its discretion by refusing to grant a motion to dismiss his prior strike conviction. We disagree and affirm the judgment. FACTUAL AND PROCEDURAL SUMMARY During the summer of 2012, John Doe 1 (the victim)3 and his friend were fishing in a creek in the City of Madera. The victim was 11 years old and his friend was 10 years old. Appellant, who was homeless and living at the creek, introduced himself to the boys as Rudy. Appellant began talking to the boys and at one point, asked the victim to sit with him under the shade of some nearby bushes. Once there, appellant pulled down the victim’s pants and began to rub and squeeze his buttocks. Appellant then kissed and licked the victim’s lips as he continued to rub his buttocks. The victim attempted to get away but appellant held him down by his shoulders. The victim called out to his friend for help. His friend yelled at appellant to