P. v. Rangel




Filed 6/2/11 P. v. Rangel CA2/1





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO RANGEL, Defendant and Appellant.

B224444 (Los Angeles County Super. Ct. No. BA355076)

APPEAL from a judgment of the Superior Court of Los Angeles County. Beverly Reid O'Connell, Judge. Affirmed as modified.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
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Defendant appeals his conviction for one count of continuous sexual abuse of a person under age 14 (Pen. Code, § 288.5), three counts of lewd and lascivious acts upon a person under age 14 (Pen. Code, § 288, subd. (a)), and three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)),^[1] with true findings that the victim was under the age of 28 at the time the information was filed, and was under the age of 18 when defendant committed the crimes. Defendant contends the trial court erred in failing to instruct on the lesser included offense of attempted rape; the victim's pretext telephone call to him violated his Fifth Amendment right to remain silent; and the imposition of a criminal conviction assessment under Government Code section 70373 violated the ex post facto clause of the federal constitution. We conclude that the trial court erred in failing to instruct on the lesser included offense of attempted rape, but that based on defendant's admission, the jury would have necessarily convicted him of attempted rape. We modify defendant's sentence accordingly and affirm the judgment as modified.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant and his former wife Laura had four children. The victim, N.R., was the eldest, born in 1991. The other three children were boys. Laura worked outside the home to support the family, and defendant was often home alone with the children.
In May 1996, when N.R. was five years old, she had an injury that required defendant to clean her vaginal area. After the injury healed, defendant continued to touch her vagina, and began to touch her chest and buttocks. He would touch her when her mother was gone and her brothers were outside, and the touching continued when she was six and seven years old.
The family moved when N.R. was seven. At that time, defendant began to put his penis between her legs and would masturbate. He showed her pornographic videos. When N.R. was between nine and 14 years old, defendant forced her to orally copulate him. She would push him away and close her legs, and sometimes defendant would not force himself on her. Defendant would force her to masturbate him almost every day. He did not force her to orally copulate him very often because she refused so much; she recalled at trial that it only happened about 10 times. When defendant was molesting her, she almost always cried. Afterwards, defendant would say he was sorry, and he would make her hit him with an electrical cord.
When she was 14 or 15, defendant was no longer at home as often because he started using drugs. When she was in tenth grade, her mother asked defendant to move out. Defendant sometimes picked her up at school, and he would find a place to park. They had intercourse in the vehicle on three occasions.^[2] She would try to keep him from penetrating her by moving away. She would bleed after he penetrated her. Defendant used a condom most of the time.
Defendant told her not to tell anyone what happened. She did not say anything because it was embarrassing to her, and she did not think her family would believe her. Several times defendant smoked crack in front of her, and told her he would not take her home if she did not try it.
Defendant stopped forcing her to have sex when she was 16. When she was 17, she got a tattoo without her mother's permission. She got in an argument with her mother, and N.R. began to cry heavily. Her mother asked what was wrong, and on condition that she not tell anyone, N.R. told her what defendant had been doing. Eventually N.R. spoke to the police.
The police asked her for her help in the investigation. She agreed to call defendant on the phone with the understanding it would be recorded and that she would try to get him to admit what he had done. She made two phone calls to defendant; during the second conversation, defendant indicated he was aware it was being taped. Defendant did not admit or deny that he molested her, although he said that he â€