P. v. Atilano
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ANTONIO ESTRADA ATILANO,
Defendant
and Appellant.
E056693
(Super.Ct.No.
FVA1001107)
OPINION
APPEAL
from the Superior Court
of
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.
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 Code
name="_ftnref1" title="">[1] 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 included offense as to count 1.
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
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 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.â€
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. 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.â€
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.â€
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.â€
Defendant
did not testify at trial. He did not
call any witnesses or introduce any evidence.
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.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
