P. v. Gonzalez CA4/3

Filed 6/21/13 P. v. Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G047260

v. (Super. Ct. No. 11CF1841)

VICTORINO RODRIQUEZ GONZALEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed. Law Offices of Allen G. Weinberg and Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent. * * *

The jury found appellant Victorino Gonzalez guilty of one count of sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subdivision (a))1 and of three counts of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)). Gonzalez was sentenced to a term of 25 years to life on the intercourse count (count one), a consecutive term of 15 years to life for one of the penetration counts (count two), and two concurrent terms of 15 years to life for the other two penetration counts (counts three and four). Gonzalez was the victim‟s stepfather, living in her mother‟s house and began molesting her just before she turned nine years old. The molestations continued until, in the victim‟s words, she was “like ten.” There is no question there was substantial evidence of actual sexual penetration at least once, since the victim testified Gonzalez‟s penis went “inside” of her vagina.2 But the victim also mentioned a few times in an initial police interview that “he put weenie on” – as distinct from “in” – “my pussy,” and from this statement Gonzalez theorizes that the trial judge should have sua sponte instructed the jury about the possibility of finding Gonzalez guilty of attempted sexual intercourse with a child under the age of 10. Indeed, the absence of an attempt instruction is Gonzalez‟s only argument in this appeal.3 We will accept, for sake of argument, the idea that the victim‟s statement Gonzalez put his penis “on” her “pussy” does not, by itself, show a completed crime under section 288.7, subdivision (a). That is, “contact” by itself does not necessarily