P. v. Gonzalez

Filed 9/8/06 P. v. Gonzalez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Larry S. Knupp, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Herbert S. Tetef and Sharon E. Loughner, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Jesus Luna Gonzalez of one count of continuous sexual abuse in violation of Penal Code section 288.5, subdivision (a). The trial court sentenced appellant to the midterm of 12 years.

Appellant appeals on the ground that the trial court erroneously and prejudicially excluded evidence of other allegations of abuse made by the victim.

FACTS

I. Prosecution Evidence

Appellant is the step-grandfather of the victim, A., who was 11 years old at the time of trial. Appellant is married to the mother of A.'s father, Hector. When A. was five or six, appellant or appellant and his wife would pick up A. from school and take her to their Norwalk home while her mother worked. There were times when she was alone with appellant. During these times, appellant sometimes touched A. in a bad way on one of her private parts. At trial, A. pointed to her vaginal area as the place where appellant touched her. She said that appellant touched her both on top of and beneath her clothing. When he touched her vagina he would move his fingers around. The touching always occurred in her grandmother's bedroom. Appellant touched A. more than 20 times in all, and it always occurred when they were watching television or playing video games. A. was six or seven years old the first time appellant touched her under her clothing. Sometimes A. tried to push his hand away but appellant would not stop. Appellant told her not to tell her grandmother.

In September 2003, A., her father, and her brother moved into her grandmother's home. Her parents were not together, and she had previously lived with her mother. In December 2003, appellant touched A. and tried to take her clothes off. A. was scared, and she told her father. She did not tell anyone before because she was afraid she would be taken away from her father. The same night she told her father, her father moved them out of her grandmother's house and later took A. to a police station. A. made a report to a sheriff's deputy in Norwalk.

In February 2004, Detective James Duran interviewed A. at her school. On cross-examination A. admitted that she told Detective Duran that her grandfather had tried to rape her. She did not know why she did not tell this to the officer in Norwalk. She acknowledged that she told Detective Duran that her grandfather tried to take her clothes off or actually took off her clothes on the night she made the accusation. When the detective asked her to explain what she meant, she just cried.

Detective Duran went to appellant's home and took him to the Norwalk Sheriff's station for an interview. Detective Duran conducted the interview in Spanish. The tape recording of the interview was played for the jury, and a transcript containing the original Spanish dialogue and an English translation was provided. After being advised of his constitutional rights, appellant said there was not much to talk about, and he had just played around with A. He said he touched A. on her stomach, on her pelvis, and â€