P. v. Amaya
Filed 8/4/06 P. v. Amaya CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. DONALD DOUGLAS AMAYA, Defendant and Appellant. | H028744 (Santa Cruz County Super. Ct. No. F07883) |
Defendant Donald Douglas Amaya appeals conviction at jury trial of four counts of lewd and lascivious acts on a child (Pen. Code, § 288, subd. (a))[1] and one count of a forcible lewd act on the victim that involved substantial sexual contact. (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8)). In this court, defendant challenges the admission and sufficiency of the evidence, the jury instructions, and the sentence.
FACTS
Eleven-year-old Alison M.'s mother, Peggy, was desperate about money at the end of 1999 and Alison was afraid they would have to move to Los Angeles, so Alison and her best friend, Brittany, cooked up a plan to introduce their parents on New Year's Eve, hoping they would all start living together. By March 2000, Peggy and Alison moved in to the apartment defendant shared with his daughter, Brittany, and defendant's brother, Jerry.
The girls shared a room with bunk beds, Brittany in the upper and Alison in the larger, lower bunk. It had been defendant's habit to go to his Brittany's room to pray with her after she went to bed; he continued this practice after Alison's arrival. Brittany would lie on her side half sitting up and look at defendant while he stood facing her with his hands on her bed while they prayed for a few minutes. Then he would leave. Alison did not participate.
Defendant began touching Alison sexually four to six months later in the summer of 2000. The first time, defendant entered the bedroom when the girls were going to bed. Brittany was in the top bunk as usual. Defendant, who drank a six-pack of beer on work nights and up to a 12-pack on other nights, was red-faced and stumbling. Alison thought he was drunk. He picked up her hand and placed it on his erect penis through a hole in his boxer shorts and moved her hand â€
