P. v. Gonzalez









Filed 11/22/10 P. v. Gonzalez CA1/1




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. ROGELIO GUZMAN GONZALEZ, Defendant and Appellant.

A125309 (Sonoma County Super. Ct. No. SCR-550659)

Defendant Rogelio Guzman Gonzalez was accused of molesting his seven-year-old daughter, Jane Doe (J.D.), when she was taking a shower during an overnight visit with him. A jury convicted defendant of a lewd and lascivious act on a child under age 14 (Pen. Code, § 288, subd. (a); count 1), and of sexual penetration of a child under age 14 and more than 10 years younger than him (Pen. Code, § 289, subd. (j); count 2), and found with respect to count 1 that he had substantial sexual conduct with the victim (Pen. Code, § 1203.066, subd. (a)(8)). He was sentenced to 10 years in prison, representing the upper term of eight years on count 1, and two years on count 2.
Defendant argues that: his statements to the police should have been excluded because they were obtained in violation of Miranda (Miranda v. Arizona (1966) 384 U.S. 436); portions of the interrogation should, for other reasons, have been excluded or redacted; he was punished for exercising his right to a jury trial; and he was improperly given the aggravated term on count 1, and consecutive sentences on the counts. We conclude that these arguments lack merit, and affirm the judgment.
I. BACKGROUND
J.D.'s mother, K.R., testified that defendant had only occasional contact with J.D. until she was seven years old, and that J.D. had three or four overnight visits with him beginning in 2007. K.R. said that when J.D. returned from a visit in February 2008, J.D. told her that defendant had come into the shower although she told him not to, and washed her although she told him she could wash herself. K.R. was furious and called defendant, who apologized profusely. Defendant said that he did not know what he had done was wrong and that he would not do it again. He admitted being naked with J.D. in the shower, but denied that anything sexual had occurred. K.R. decided that J.D. should have no further contact with defendant until it became clear what had transpired during the shower, but she did permit them to meet on one occasion, in a restaurant, â€