Filed 12/23/14 P. v. Vega CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050097

         v.                                                            (Super. Ct. No. 12CF1176)

JUAN MANUEL VEGA,                                                      OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   Eric R. Larson, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
                                             *               *               *
              Appellant Juan Manuel Vega was convicted by a jury of sexual assaults
upon his two daughters, ages eight and seven. He was sentenced to 50 years to life in
prison, comprised of consecutive sentences of 25 years to life sentences on one count
pertaining to each girl.
              We appointed counsel to represent him on appeal. Counsel filed a brief
which set forth in concise and well-articulated detail the facts of the case. Vega was
invited to express his own objections to the proceedings against him, but did not. Under
the law, this put the onus on us to review the record and see if we could find any issues
that might result in some kind of amelioration of Vega’s lot. (People v. Wende (1979) 25
Cal.3d 436.) It should be emphasized that our search was not for issues upon which Vega
would prevail, but only issues upon which he might possibly prevail.
              We have examined the record and found no arguable issue. This is not
surprising. In fact, it is what we find in the vast majority of cases in which appellate
counsel files a Wende brief. Even the most cynical observer of the appellate system
would have to recognize that appellate counsel has a financial incentive for finding
issues. The simple matter is counsel makes more money if he/she finds an issue that is
arguable than if he/she does not. So while it sometimes happens that an appellate court
will find issues after appellate counsel has thrown in the towel, it is unusual. This case is
not unusual – at least not in any way that would benefit Vega. We find no error in his
trial and affirm the judgment against him.
                                          FACTS
              Appellate counsel has provided a fine description of the facts of the case.
We can find no errors or omissions in that description, so, rather than try to improve upon
it, we reproduce it here:
“Prosecution Evidence
              “Appellant fathered three children with Lucia C. (“Lucia”), two daughters
named N. and Samantha, and a son named Juan. At the time of trial in 2014, N. was

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eight years old. In 2012, appellant, Lucia and their three children were all living together
in one bedroom of a shared two bedroom apartment in Santa Ana.
                 “Lucia testified that on the evening of April 20, 2012, appellant asked her
to go buy something at a store, which she did. When Lucia returned from the store, she
entered their bedroom and saw appellant standing near the closet next to N., whose pants
were down and who was pulling up her underwear. Lucia, who had never before
suspected any sexual abuse of her children, immediately asked appellant what was going
on, and appellant said nothing had happened. Lucia then pulled N. aside and asked her
what had happened. N. appeared scared and was initially reluctant to say anything, but
eventually said that appellant had done something to her that was of a sexual nature.
Lucia then immediately called 911, and a recording of that call was played for the jury.
                 “When police arrived at their residence that evening in response to the 911
call regarding what Lucia saw occur between appellant and N., the police conducted
recorded interviews of both N. and Samantha based on their training and experience, as
well as based on what N. first told them. A few weeks later, on May 16, 2012, both N.
and Samantha were interviewed again at a CAST facility by a social worker who
specializes in sexual abuse crimes involving children.
                 “N. and Samantha both testified that what they told police at their
apartment and the interviewer at the subsequent CAST interview about appellant
touching them was the truth. A recording of each of these interviews was played for the
jury.1
                 “In her police and CAST interviews, N. said that before her mom came
home on the night the police arrived at their apartment, appellant took off her pants,
masturbated himself, touched the inside of her vagina with his penis, and inserted his
penis into her anus, which hurt. N. said appellant had touched her private parts a lot of

         “1         Both N. and Samantha were very young at the time of their interviews, and they understandably
had difficulty at times articulating and explaining the events in question.


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times previously and would always give her a dollar afterwards, although she was
uncertain and unable to articulate when or how many times this occurred. N. also
reported seeing appellant touching her sister Samantha.
              “During her police and CAST interviews, Samantha described appellant
placing his hard penis inside her mouth and inside her vagina, which felt bad and hurt.
Samantha said she remembered appellant touching her on different days, and that
appellant inserted his penis in both her mouth and vagina on the day the police came to
her residence.
              “DNA testing was performed on N., Samantha, and appellant. No semen
was found on either of the girls. Vestibule and vulva swab samples were taken from both
girls, and no foreign DNA was initially found on any of those samples.
              “Because a female’s vaginal and anal openings tend to contain very high
concentrations of their own DNA that can mask the presence of other DNA, a special
type of DNA testing called Y-typing was also performed that is able to exclude female
DNA and isolate the presence of any male Y chromosomes. Upon such testing, it was
determined the vestibule and vulva swab samples from N. contained some areas of
possible male DNA, which was consistent with appellant’s DNA to a frequency of 1 out
of every 4000 males in the general population.
              “A penile swab obtained from appellant revealed the presence of foreign
DNA, which foreign DNA could not have come from either N. or Samantha individually,
but could have potentially come from a mixture of both N. and Samantha’s DNA.
              “Appellant was interviewed by police on the night the police came to their
apartment in response to the 911 call, and a recording of that interview was played for the
jury. Appellant initially and repeatedly denied touching either girl in any sexual manner.
Subsequently, appellant admitted touching both girls on their vaginal and anal areas with
his hands, but denied any penetration. Appellant explained that he was himself molested
as a child while in Mexico, and he sometimes got uncontrollable urges to touch his

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daughters in a sexual manner. Subsequently, appellant admitted anal penetration of N.
with his finger on one occasion when his finger slipped inside her anus. Appellant
continued to deny any penetration with his penis, any oral copulation, or any other
penetration.”
                                        DISCUSSION
                This was not a lengthy trial. After pretrial motions, 10 witnesses were
called in what was essentially two days. Defendant did not testify, called no witnesses,
and offered no evidence. But even the shortest trial presents evidentiary and procedural
issues the trial judge must resolve, and even when appellate counsel is unable to identify
any judicial calls that may arguably have resulted in prejudicial error, it is incumbent
upon us to review the record ourselves.
                We have done so in this case and find none. Mr. Vega did not make his
decision not to testify until the conclusion of the prosecution case. Its consequences were
carefully explained to him both before the trial and at the point at which counsel
informed the court he would not be testifying. By all appearances, it was a thoughtful
process culminating in an informed and well-advised decision. We find he clearly and
intelligently waived his right to testify.
                The court correctly resolved issues pertaining to the 911 call made by the
children’s mother and questions pertaining to the fresh complaint doctrine. Defendant’s
own statements were properly admissible against him. Counsel and the court succeeded
in clarifying the information to remove ambiguity and properly screened and instructed
the jury for Spanish speakers who would be required to accept translations of Spanish
statements. References to appellant’s prior domestic violence case were properly
excluded.




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              The trial itself was uneventful and the sentencing decision well within the
discretion of the trial judge. Appellant’s representation at trial raises no issues. We
simply cannot find anything here that might provide a basis for an appellate argument.
              The judgment is affirmed.




                                                  BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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