People v. Yanez CA4/3

Filed 5/31/16 P. v. Yanez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G050204

v. (Super. Ct. No. 12WF3529)

VENANCIO YANEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Nancy J. King, 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, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Venancio Yanez was convicted of continuous sexual abuse of a child under the age of 14 and two counts each of sexually penetrating a child age 10 or younger and committing a lewd act on a child under the age of 14. (Pen. Code, §§ 288.5, subd. (a), 288.7, subd. (b), 288, subd. (a)).1 The jury also found the lewd acts constituted substantial sexual conduct. (§ 1203.066, subd. (a)(8).) The trial court sentenced appellant to prison for 15 years to life, plus 20 years. Appellant contends there is insufficient evidence to support his conviction for continuous sexual abuse because the record is devoid of substantial evidence he sexually abused the victim three or more times over a period of at least three months. He also contends the trial court erred in failing to instruct the jury on sexual penetration of a person under the age of 18 as a lesser included offense of sexual penetration of a child age 10 or younger. Finding appellant’s contentions unmeritorious, we affirm the judgment. FACTS S.O. is appellant’s stepdaughter. She was born in June 1998, and from 2005 to 2012, she lived in Westminster with her mother, two younger siblings and appellant. One day when S.O. was seven years old, appellant came into her room while she was changing and touched her breasts and buttocks over her clothing. The touching made S.O. uncomfortable, but she was too scared to tell anyone about it. In the wake of that incident, appellant touched S.O. inappropriately on several other occasions. S.O., who was 15 years old at the time of trial, was unable to recall the details of every incident. However, she testified the touching continued “pretty much the same” during the time she was seven and eight years old. Sometimes appellant “just touched [her] chest area,” and “sometimes he would just touch [her] butt.” Sometimes he only touched over her clothing, and sometimes he went underneath her clothing.