People v. Lopez CA3

Filed 6/7/24 P. v. Lopez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C098216

Plaintiff and Respondent, (Super. Ct. No. 19FE009358)

v.

ROBERTO CARLOS LOPEZ,

Defendant and Appellant.

A jury found defendant Roberto Carlos Lopez guilty of two counts of committing a lewd or lascivious act on a child under the age of 14 and two counts of rape of a child. On appeal, defendant argues that the trial court erred when it instructed the jury with CALCRIM No. 1190 in conjunction with CALCRIM No. 301, asserting the instructions lightened the prosecutor’s burden of proof by bolstering the victim’s testimony. We will affirm the judgment.

1

BACKGROUND Defendant was a father figure to S.D. Defendant raped S.D. when she was 12 years old on two separate occasions. The first incident occurred when S.D. was watching a movie in bed. Defendant got down next to her on the bed, pulled down her pants and underwear, and put his penis inside her vagina. S.D. asked him why he was doing this to her but he did not answer. S.D. was not able to push him off or get away because he held her down by her wrists. Defendant’s penis was inside her for approximately one minute. Defendant stopped when the victim’s nephew came into the room. The second incident occurred when S.D. was watching television on the couch in the living room. Defendant got on top of S.D., took off her pants and underwear, and raped her again. S.D. cried but defendant did not stop. S.D. testified that this was worse than the first time he raped her because he used a lot of force and it felt like she was being cut on the inside. After more than two minutes, S.D. was able to push defendant off her. She was bleeding and could not walk for two days. Defendant told S.D. that if she ever told anyone what happened, he would be in danger “on the streets.” S.D. was also scared of defendant because he had previously assaulted her mother, cousin, brother, sister, and his own mother and sister. An amended information charged defendant with two counts of committing a lewd or lascivious act on a child under the age of 14 (Penal Code,1 § 288, subd. (b)(1)) and two counts of rape of a child under the age of 14 (§ 269, subd. (a)(1)). The trial court instructed the jury with CALCRIM No. 301, which, as instructed, provided: “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.” The court also instructed the jury with CALCRIM No. 1190, stating, “Conviction of a