P. v. Gomez

Filed 8/11/06 P. v. Gomez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

A jury found Roberto Mendoza Gomez guilty of two counts of committing a lewd act on a child under the age of 14 in violation of Penal Code section 288, subdivisions (a) and (b)(1). The trial court sentenced Gomez on count 1 to the midterm of 6 years and on count 2 to one-third of the midterm (2 years) to be served consecutively to the term on count 1.

Gomez contends: (1) the 10-month delay in bringing the charges against him violated his due process rights under the United States and California Constitutions; (2) the trial court deprived him of a fair trial and due process by precluding a defense investigator from testifying about efforts to locate a potential defense witness; (3) the prosecutor committed prejudicial misconduct during closing argument; (4) the trial court erroneously instructed the jury on flight after a crime; and (5) cumulative error requires reversal.

We hold: (1) Gomez suffered no prejudice from any delay in bringing charges against him; (2) the investigator's testimony about unsuccessful efforts to find a potential defense witness would have been irrelevant; (3) the trial court cured any potential harm caused by the one possible act of prosecutorial misconduct by admonishing the jury not to consider the prosecutor's statement; (4) the evidence supported giving the instruction on flight from a crime scene; and (5) there was no cumulative error. Accordingly, we affirm.

Facts

We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)

1. The Incident in the Garage

In October 2002, 13-year-old J.B. lived in a house in Santa Ana with her mother (K.H.), brother, grandmother (M.M.), â€