P. v. Gomez





Filed 4/26/11 P. v. Gomez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, v. JOSE DEJESUS GOMEZ, Defendant and Appellant.

E050246 (Super.Ct.No. BAF005986) OPINION

APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jose Dejesus Gomez appeals after he was convicted by a jury of two counts of committing a lewd act on a child under age 14 (Pen. Code, § 288, subd. (a)).^[1] He contends that the trial court erred in admitting evidence of prior uncharged conduct. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The victim, K., is defendant's son. Defendant's stepdaughter, S., is K.'s half sister. The mother of both children, Anna O. (mother), was married to defendant from 1994 to 1999. Defendant and mother were also briefly remarried for a few months in 2005, and they had lived together off and on throughout the period. They also shared custody of K. on alternating weekend schedules.
Count 1 concerned an incident that took place in May 2007. Defendant picked up 13-year-old K. for a planned trip to San Diego. Defendant stopped in Temecula and checked them into a motel, saying he was too tired to drive any further. K was surprised because, when he and mother had gone on trips with defendant, defendant would drive for hours. After they checked into the motel, defendant and K. went to get snacks. They then returned to the motel room.
Later that evening, when K. was ready to go to bed, he lay down fully clothed while watching television. Defendant also got into bed, wearing only boxer shorts. K. eventually fell asleep, but he awoke when he felt defendant grabbing his buttocks. Defendant also touched K.'s crotch and penis over K.'s clothing. K. moved to the side of the bed.
The next day, defendant and K. went to San Diego. Defendant and K. got into an argument at a restaurant, and defendant decided to take K. home.
The second charge arose out of an incident in June 2007. K. had gone to defendant's house for his usual after-school visitation. K. was lying across defendant's bed, watching television, when defendant came up and grabbed K.'s buttocks several times. K. pushed defendant's hand away. He also noticed that defendant appeared to have an erection.
K. eventually told mother about the incidents; mother reported the matter to police. Mother testified that she took K. to the police because of a similar complaint that S. had made in 1999.
At trial, S. testified about an uncharged incident that allegedly took place in 1999, when S. was 13 years old. At the time, S. was living with mother and defendant in the family home. Defendant, saying he was sick, or something to that effect, called S. into the bathroom and exposed himself to her. Defendant threatened to kill S. if she told mother. However, S. did report the incident to mother later that week. When mother confronted defendant about the incident, defendant explained that he had showed S. â€