P. v. Samaniego CA4/3

Filed 6/7/13 P. v. Samaniego 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G047097

v. (Super. Ct. No. 10HF1606)

JOSE ALBERTO SAMANIEGO, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler , Judge. Affirmed. Robert L.S. Angres for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Jose Alberto Samaniego argues that the trial judge should have told the jury that one of the charges against him, digital penetration of his stepdaughter in violation of Penal Code section 288.7,1 is a specific intent crime requiring, in addition to the act of penetration, the purpose of sexual abuse, arousal or gratification. But the trial judge did instruct the jury the penetration count required the purpose of sexual abuse, arousal or gratification. He only misclassified the penetration count as a general intent crime, not a specific intent crime. The error, such as it was, was de minimis, and easily harmless beyond a reasonable doubt under the Chapman standard.2 We affirm the judgment. FACTS Samaniego was convicted of two counts arising out of the sexual molestation of his six-year-old stepdaughter on the night of September 2, 2010. Count one was violation of section 288.7, subdivision (b), sexual penetration of a child 10 years of age or younger. Count two was violation of section 288, subdivision (a), lewd or lascivious act upon the body of a child under the age of 14 years. Samaniego admitted to touching the victim’s genital area, but denied any penetration. Trial was solely focused on count one, the sexual penetration count. At trial, the victim, then age seven, described the molestations. Samaniego’s fingers went “inside” the “lip areas” of her genitals; Samaniego’s fingers went “up and down in that area” or “kind of up and down” for “a little long,” and it hurt. She further said his fingers “mov[ed] around” “on the skin of [her] vagina.” Samaniego’s fingers felt “gooey.”