California Court of Appeal Jun 19, 2013 No. E056693Unpublished
Filed 6/19/13 P. v. Atilano CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E056693
v. (Super.Ct.No. FVA1001107)
ANTONIO ESTRADA ATILANO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. Affirmed.
Reed Webb, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
INTRODUCTION
On July 20, 2010, a felony complaint charged defendant and appellant Antonio
Estrada Atilano with oral copulation of an unconscious person in violation of Penal
Code1 section 288a, subdivision (f) (count 1).
On May 9, 2012, a jury found defendant guilty of attempted oral copulation of an
unconscious person in violation of sections 664 and 288a, subdivision (f), a lesser
On July 6, 2012, the trial court sentenced defendant to serve the midterm of three
years in state prison. The trial court awarded defendant credit for time served, and
imposed various fines and fees. The court also advised defendant that he had a lifetime
obligation to register as a sex offender under section 290.
On July 12, 2012, defendant filed a timely notice of appeal.
STATEMENT OF FACTS
On May 19, 2010, a 30-year-old woman, Jane Doe, went to the Fontana Police
Department. She reported that nine years earlier, defendant, who was Doe’s father, had
sexually molested her while she was sleeping in her parents’ house.
Doe stated, “I thought that I was having sex with my boyfriend in my dream.” She
woke up and discovered that defendant was orally copulating her. She testified, “I felt
his tongue at my private.” She could feel his tongue moving around in her vaginal
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
opening. Doe reacted by yelling, “No,” and crawling into a fetal position to get away
from him. Defendant stated that he was sorry and that Doe provoked him. He then
walked out of the room.
Doe took her four-year-old son, who had been sleeping in the room with her, and
ran into another bedroom where she could lock the door and call her mother. She told her
mother what had happened and then shortly after, repeated the account to her older sister.
According to Doe, neither of them believed Doe. She testified that she did not report the
incident to the police because “I didn’t think that anybody would believe me.”
In 1992, prior to this incident, defendant pulled back a shower curtain and looked
at Doe when she was naked. Police investigated the incident but only spoke to Doe’s
parents and not to Doe, who was 12 years old at the time.
After the incident in 2001, Doe cut off all connections with her family for about
five years. In 2006, she became a police officer in Riverside. She tried to reestablish her
family ties, but told defendant that the only way for them to get along was for him to
admit to the police what he had done to her.
After Doe spoke with Fontana police officer Brad Guith on May 19, 2010, Guith
interviewed defendant at his home. Defendant denied molesting his daughter. He stated
that he had only covered her with a blanket and gave her a kiss on her forehead. On June
30, 2010, however, defendant came into the police department and spoke with Officer
Guith again. In an audio-video recorded interview, defendant stated that his daughter had
told him to tell the truth if he wanted to reestablish a family relationship between them.
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Defendant then told the officer that he had found his daughter asleep in a bedroom and
that her legs were uncovered. He kissed her on the mouth, and Doe had returned the kiss
and hugged him. Defendant thought that Doe was awake at the time. Defendant
continued and stated: “And then I petting her and then I (unintelligible) over her vagina
and um nothing happened. Then I pulled her underwear’s, she was wearing underwear
and I tried to pull it back and trying to kiss her vagina.”
Defendant stated that he was sure at this point that Doe was awake. Doe asked
him what he was doing. He stated that he was sorry. She told him to “[g]et out!” and he
left. Officer Guith asked defendant if he had touched Doe’s vagina with his hands. He
answered, “No. Honestly I don’t remember. What I remember (unintelligible) my face
because I remember the smell. I don’t forget that. I don’t remember exactly what
happened. And, I’m being honest with you. That’s what I remember.”
Officer Guith then asked defendant, “[W]hat were you thinking? What was going
through your mind?” Defendant replied, “Just have sex with her because (unintelligible)
my mind.”
Defendant did not testify at trial. He did not call any witnesses or introduce any
evidence.
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ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case, a summary of the facts and potential arguable issues, and requesting this court to
undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
5
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for attempted oral copulation of an unconscious person after finding no arguable issues upon independent review of the record pursuant to People v. Wende.
Issues
Whether there are any arguable issues on appeal following the filing of a Wende brief.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.”