P. v. Getz

Filed 1/9/07  P. v. Getz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Fresno County.  Gary D. Hoff, Judge.

            John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stanley Cross, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

            On July 24, 2003, the Fresno County District Attorney filed a first amended information in superior court charging appellant Steven Victor Getz as follows: count I--rape of an incompetent person (Pen. Code, § 261, subd. (a)(1)); count II--elder/dependent abuse (§ 368, subd. (b)(1)); and count III--maliciously removing, obstructing, or severing a telephone line (§ 591). 

            On June 22, 2005, appellant was arraigned, waived his right to a jury trial, and a court trial commenced. 

            On June 30, 2005, the court found appellant guilty of all three counts. 

            On March 4, 2006, the court denied appellant probation and sentenced him to a total term of eight years in state prison.  The court imposed the upper term of eight years on count I and concurrent terms of four years on count II and two years on count III.  The court awarded appellant 1,303 days of custody credits, imposed a $1,600 restitution fine (Pen. Code, §  1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§  1202.45), and ordered appellant to pay $3,465 in restitution (§  1202.4, subd. (f)).  The court also ordered appellant to pay $8,537 to the Office of the Public Defender for expert witness fees and ordered him to register as a sex offender (§  290). 

            On April 3, 2006, appellant filed a timely notice of appeal. 

STATEMENT OF FACTS

            At 12:56 p.m. on July 22, 2002, Fresno County Deputy Sheriff Jeffrey Shanen went to an address on North Bethel Avenue.  Appellant and his daughter were in the front yard.  Based on the nature of the 911 call, information from appellant's daughter, and appellant's demeanor, Deputy Shanen detained appellant and placed him in a patrol vehicle.  Shanen then entered the home and observed an elderly woman (the victim) disrobed and unresponsive on the top of a bed. 

            Appellant's daughter (the daughter) testified she had dressed on the morning of July 22, 2002, and then had gone down the hallway of her home to care for the victim.  The victim was suffering from Alzheimer's disease and could not walk, talk, feed herself, or make other voluntary movements.  The daughter walked to the victim's room and found the door closed.  This was unusual because the door was normally open.  When the daughter opened the door, it hit a wheelchair inside the room.  This was also unusual because the wheelchair was not normally placed there.  When the daughter pushed harder, the wheelchair moved and the door opened. 

            When the door opened, the daughter saw appellant on top of the victim.  His body was in between her legs and the daughter said he â€