People v. Salmeron CA2/3

Filed 4/4/16 P. v. Salmeron CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B261507

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA089167) v.

FIDEL SALMERON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Garett A. Gorlitsky, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Fidel Salmeron appeals from a judgment entered after a jury found him guilty of committing a lewd act upon a child under 14. (Pen. Code, § 288, subd. (b)(1).)1 The victim was defendant’s daughter, who was ten years old at the time he molested her. The trial court sentenced defendant to the upper term of eight years in state prison. Defendant appeals, contending the trial court abused its discretion when it selected an upper term of imprisonment. We disagree and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On or about September 23, 2008, R.S. walked into her mother’s room crying and said defendant, her father, had sexually abused her. R.S.’s mother confronted defendant and he moved out of the house. The following day, R.S.’s mother took her to UCLA Medical Center for an examination. At the hospital, R.S. told a police officer that defendant had forcibly raped her, inserted his penis into her mouth, kissed her on the mouth, and forced her to touch his penis with her hand. Defendant was arrested on November 7, 2012.2 He was charged by first amended information with three counts of lewd acts upon a child under 14 (§ 288, subd. (a); counts 1, 13 and 14), one count of continuous sexual abuse of a child (§ 288.5, subd. (a); count 2), one count of committing a forcible lewd act upon a child under 14 (§ 288, subd. (b)(1); count 4), one count of oral copulation or sexual penetration of a child under 10 (§ 288.7, subd. (b); count 6), and one count of sexual intercourse or sodomy with a child under 10 (§ 288.7, subd. (a); count 10).3 Defendant pled not guilty. The court granted defendant’s motion to dismiss counts 13 and 14 as untimely pursuant to section 1385.