Filed 8/7/15 P. v. Almodovar CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062347

v.                                                                       (Super.Ct.No. FSB1101911)

JOSE LUIS ALMODOVAR,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,

Judge. Affirmed.

         Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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                      FACTUAL AND PROCEDURAL HISTORY

       A.      PROCEDURAL BACKGROUND

       On November 5, 2012,1 an amended information charged defendant and appellant

Jose Luis Almodovar with molesting C.H. and P.H., sisters, in 2006 and 2007, and their

cousin I.H. between May 4, 2005, and May 3, 2006, as follows: (1) committing a lewd

and lascivious act on a child under 14 under Penal Code2 section 288, subdivision (a), on

C.H. (counts 1-5), on P.H. (counts 17-19), and on I.H. (counts 23-25); (2) sexual

penetration under section 289, subdivision (j), of C.H. (counts 7-12), and P.H. (counts 20-

22); (3) committing sodomy under section 286, subdivision (c)(1), on C.H. (count 13);

and (4) committing sexual intercourse and sodomy on a child 10 years younger than

defendant under section 288.7, subdivision (a), on C.H. (counts 14-16). The information

also contained a multiple victim allegation under section 667.61, subdivisions (b) and (3).

       Jury trial began on February 4, 2013. During jury deliberations, the jury indicated

that it was at an impasse on all counts. After further deliberations the following day, the

jury convicted defendant on counts 23, 24, and 25 (relating to I.H.), acquitted him on

counts 18, 19, 21, and 22 (four of six counts relating to P.H.), and declared itself

deadlocked on counts 1 through 16 (relating to C.H.), and counts 17 and 20 (relating to

P.H.). The court then declared a mistrial as to those 18 deadlocked counts.



       1   The initial felony complaint was filed in April 2011.

       2   All further statutory references are to the Penal Code unless otherwise indicated.


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       The People filed a second amended information on February 26, 2013, and

recharged defendant in counts 1 through 16, regarding C.H.; and 17 and 20, regarding

P.H. On June 19, 2014, the trial court granted the People’s motion to dismiss all

remaining charges.

       On November 13, 2014, the court heard and denied defendant’s motion for a new

trial. The court then sentenced defendant to an aggregate prison term of 10 years,

comprised of the middle term of six years on count 23, consecutive to two consecutive

two-year terms (one-third the middle term) on counts 24 and 25, respectively. The court

imposed statutory fines, fees and assessments, and awarded defendant presentence credit

for a total of 1,247 actual days and 187 days local conduct credit, for a total of 1,434

days.3 On November 13, 2014, defendant filed a timely notice of appeal.

       B.     FACTUAL BACKGROUND

       Defendant was born on April 20, 1984. In 2006 and 2007, defendant lived with

his uncle, F., in a three-bedroom apartment in San Bernardino. F.’s fiancée Ma. and her

children, C.H. (age 6), P.H. (age 9), and M.H. (age 11) also resided in the home.4 F. and



       3  Defendant was arrested on June 15, 2011, and sentenced on November 13, 2014.
This constitutes 1,248 days of actual presentence credit, one more day than the 1,247 days
credited by the trial court. Defense counsel filed a request to correct the presentence
credits in the trial court under section 1237.1. The correction was made by the trial court
on July 29, 2015, and an amended abstract of judgment was filed on July 31, 2015.
       4 The ages of the children were the ages when defendant first moved into the
house. Since defendant was convicted on charges relating only to I.H., the facts relating
to C.H. and P.H. are omitted.



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Ma. slept in the master bedroom; C.H. and P.H. shared a bedroom; and defendant slept in

the bottom bunk bed in M.H.’s room.

       F. kicked defendant out of the house after two years when defendant made a

comment about Ma.’s thong underwear, which was sticking up above her waistband, then

picked her up, carried her into her bedroom, and threw her on the bed. Defendant moved

into a home in Redlands for a short time, then moved back to Indiana.

       Ma.’s niece, I.H., was born in May of 1992. Although I.H. lived with her mother

and sisters, she visited F. and Ma.’s house almost every weekend and stayed overnight.

I.H. was 13 years old when defendant arrived.

       One weekend, when she was 13 years old, I.H. was lying beneath a blanket on the

bottom bunk (defendant’s bed) in M.H.’s bedroom. She was watching television with her

cousins. Defendant entered the darkened room, sat beside her, slid his hand under the

blanket and beneath I.H.’s underwear, and rubbed her buttocks. I.H. told defendant to

stop and he pulled his hand out. C.H. and P.H. left the room and M.H. went up to the top

bunk to sleep. Defendant, who had been lying behind I.H., then pulled her closer to him.

He then pulled her pants down to expose her buttocks, pulled his penis out of his shorts,

and put it in her “butt.” I.H. told defendant to stop because it hurt. Defendant stopped,

then pulled her onto her back, and started to touch her vagina. I.H. did not scream or call

out because she was afraid and feared it would ruin her aunt and uncle’s relationship.

       I.H. returned to visit her aunt and uncle the following weekend. Again, she was

watching television on the bottom bunk when M.H. was sleeping in the top bunk.



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Defendant sat behind her, slipped his hand beneath her shorts, and rubbed her vagina.

Defendant pulled down her shorts and again put his penis in her “butt” for five to 10

minutes. Although it hurt, she did not scream because she was too scared. When

defendant stopped, I.H. went into P.H.’s room.

          I.H. returned to the house the following weekend. Again, when M.H. was asleep,

defendant lied down behind her and put his penis in her “butt” and vagina. When she

scooted away, he pulled her back towards him. She tried to scream but defendant put his

hand over her mouth and told her to be quiet. She did not say anything because she was

afraid.

          I.H. skipped a week but returned to the house two weekends later, as well as the

weekend following. On both occasions, defendant put his penis in her butt and vagina.

          After the fifth incident, I.H. told her aunt that she was too busy at school and did

not return to the house. She finally told P.H. what had happened approximately one year

prior to trial, after P.H. told I.H. about her impending trial.5 C.H. previously told I.H. that

defendant had done things to her, but I.H. had not taken it seriously at the time and she

never told anyone.




          5The original information, filed November 10, 2011, charged defendant with 22
counts relating only to C.H. and P.H. Defendant was charged with acts against I.H. For
the first time in a criminal complaint filed on February 17, 2012, which acts were charged
as counts 23, 24, 25 in the amended information.


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                                        DISCUSSION

       After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25

Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the

case, a summary of the facts, and potential arguable issues, and requesting this court to

undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we

have independently reviewed the record for potential error and find no error.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                        MILLER
                                                                                            J.


We concur:


KING
                       Acting P. J.


CODRINGTON
                                   J.




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