People v. Angel CA2/2

Filed 5/6/16 P. v. Angel CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B255349

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA083171) v.

DAVID ALVAREZ ANGEL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Stanley Blumenfeld, Judge. Affirmed.

Daniel G. Koryn, 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, Margaret E. Maxwell and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

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David Alvarez Angel was convicted of engaging in three or more acts of substantial sexual conduct or lewd and lascivious conduct with a child under the age of 14, for at least three months, while residing with or having recurring access to the child. (Pen. Code, § 288.5, subd. (a).)1 Defendant argues that the trial court erroneously failed to (1) give a unanimity instruction, sua sponte, and (2) grant a new trial, based on jury misconduct. We find no error and affirm. FACTS Sandra O. described sexual conduct by defendant that began when she was five or six years old and continued until 1998, when she was 10. During that time, defendant was in a relationship with Sandra’s mother, G., and he spent nearly every night at her home. He babysat Sandra when G. left before 5:00 a.m. for work. When Sandra was five or six years old, and G. was at her job, defendant asked Sandra to sit on his lap while they watched television. She complied, facing away from him. Defendant turned her to face him, astraddle, and began kissing her neck and chest. Their genitals were touching through their clothing and he placed his hands on her thighs. Sandra was confused by this conduct which, to her youthful sensibilities, went on for a long time. After the first incident, defendant no longer kissed her, “but there was more touching” in the vicinity of her private parts, which occurred “a lot.” When Sandra was seven or eight, and her mother was away, defendant came to Sandra’s bedroom as she slept, and instructed her to lie down in the master bedroom. As Sandra dozed, defendant began rubbing her leg and upper body, and told her to get on top of him. She tried to sit on his belly button and avoid his private parts, but defendant repositioned her to straddle his genitals. Sandra understood “that something wrong was going on,” but she complied because she was scared and he is an adult, so she had to obey.