P. v. Sandoval

Filed 8/24/06 P. v. Sandoval CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

A jury convicted defendant Herman Garcia Sandoval of lewd and lascivious acts with M.M., a child under age 14 (Pen. Code, § 288, subd. (a); further statutory references are to the Penal Code unless otherwise stated; count one), and four counts of forcible lewd and lascivious acts with J.S., a child under age 14 (§ 288, subd. (b)(1); counts two through five). The jury found true allegations that defendant committed the charged offenses against more than one victim within the meaning of section 667.61, subdivisions (b) and (e)(5). He was sentenced to state prison for 30 years to life, consisting of two consecutive terms of 15 years to life on counts one and two, and concurrent terms of six years each on counts three, four and five.

On appeal, defendant contends the four counts involving J.S. must be reversed because (1) the prosecution failed to introduce admissible evidence of the offenses at the preliminary hearing, and (2) the delay of five years eight months between his first arrest in April 1998 and the filing of the complaint in December 2003 violated due process and deprived him of the ability to defend against the charges. We shall affirm the judgment.

FACTS

The facts of the M.M. offense are not at issue and need not be set forth in this opinion.

J.S. was 19 years old when he testified and 13 years old at the time of the offenses. When he was 13, he lived with his father and worked at the father's produce stand at a flea market. While at the market, J.S. met defendant who was a friend of his father.

On April 19, 1998, after obtaining the father's permission, defendant hired J.S. to mow his lawn and help him clean up his residence. J.S. left the flea market and went with defendant in his truck. As he drove, defendant asked J.S. if he wanted to drink beer, smoke cigarettes, and watch dirty movies. Even though he wasn't really interested, J.S. said yes because defendant was bigger than him and he did not want to make defendant mad.

No one was at defendant's residence when they arrived. They went inside and started talking and watching television. At defendant's request, J.S. stood up. Defendant pulled down J.S.'s pants and underwear and started to play with J.S.'s penis. Defendant pulled down his own pants, pushed or tossed J.S. onto the couch, and began rubbing his penis against J.S.'s penis and stomach. Defendant was on top of J.S., making a humping motion, sucking on J.S.'s lip, trying to kiss him, and not saying anything. Defendant tried to put his tongue in J.S.'s mouth, but J.S. kept it tightly closed. J.S. was unable to get up off the couch because defendant was too heavy.

After about five minutes on the couch, defendant took J.S. to the bedroom. Defendant told J.S. to lie down and got on top of him. Defendant rubbed his penis on J.S.'s penis and stomach and tried to kiss him. J.S. did not have any bruises or marks, and he testified that defendant was not trying to hurt him. J.S. told defendant that he had to return to the flea market because his father would be worried. Defendant said okay and got off of him. They went to the living room where defendant gave J.S. a root beer. Defendant acted as if everything were fine.

On the way back to the flea market, defendant asked J.S. whether the acts felt good, whether he had liked them, and whether he would tell anyone about it. J.S. told him no, because he was scared and did not want defendant to hurt him. Defendant asked J.S. if he wanted anything, and J.S. sarcastically said, â€