Filed 4/15/14 P. v. Castro 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G048364

         v.                                                            (Super. Ct. No. 11CF1031)

MARIANO ANTONIO CASTRO,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
                   Mariano Antonio Castro, in pro. per.; Richard de la Sota, under
appointment by the Court of Appeal, for Defendant and Appellant.
                   No appearance for Respondent.


                                      *                  *                  *
              Defendant was convicted by jury of two counts of committing a lewd act
                                                                              1
with a child under the age of 14 (Pen. Code, § 288, subd. (a), counts 2 & 3), three counts
of aggravated sexual assault of a child under the age of 14 (§ 269, subd. (a)(1), count 4;
§269, subd. (a)(4), counts 5 & 6), and one count of continuous sexual abuse of a child
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under the age of 14 (§288.5, subd. (a)). The jury also found true allegations of
substantial sexual conduct attached to counts 2 and 7, and great bodily injury attached to
count 3. Defendant was sentenced to an aggregate indeterminate state prison term of
45 years to life, and a determinate state prison term of 16 years to be served before the
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indeterminate term commenced. Defendant timely filed a notice of appeal, and we
appointed counsel to represent him. Counsel did not argue against defendant, but advised
the court he was unable to find an issue to argue on defendant’s behalf. Defendant was
given the opportunity to file written argument in his own behalf, and he has done so,
submitting a four-page handwritten brief.
              We have examined the entire record, and have considered the brief
submitted by defendant, but have not found an arguable issue. (People v. Wende (1979)
25 Cal.3d 436.) Accordingly, we affirm the judgment.



1
              All statutory references are to the Penal Code.
2
               The jury failed to reach a verdict on count 1, which charged defendant with
a third violation of section 288, subdivision (a). The court declared a mistrial, and the
People ultimately dismissed the charge.
3
              The sentence comprised a term of 15 years to life on count 3 (§§ 288,
subd.(a); 667.61, subds. (b), (c)(8) & (d)(7)), a consecutive term of 15 years to life on
count 4 (§ 269, subds. (a)(1), (b)), a consecutive term of 15 years to life on count 5
(§ 269, subds. (a)(4) & (b)), a concurrent term of 15 years to life on count 6 (§ 269,
subds. (a)(4) & (b)), a consecutive term of 16 years on count 7 (§ 288.5, subd. (a)), and a
concurrent term of 6 years on count 2 (§ 288, subd. (a)).

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                                         FACTS


              Jane Doe was born in October 1992. Defendant moved in with Jane Doe’s
                              4
mother, her two half brothers, and Jane Doe when Jane Doe was about eight years old.
                                                                 5
On Jane Doe’s eighth birthday, defendant kissed her on the lips. Thereafter, defendant’s
sexual conduct escalated, progressing first to touching Jane Doe’s vagina on top of her
clothes, then touching her vagina under her clothes, and eventually digitally penetrating
her vagina. When Jane Doe reached the age of nine, defendant had sexual intercourse
with her, holding her hands down by her wrists to stop her from trying to push him away.
Jane Doe estimated that between her ninth and tenth birthdays defendant had sex with her
about 50 times.
              Defendant had Jane Doe orally copulate him when she was nine years old.
He had promised her a toy if she gave him a “blow job.” Jane Doe “didn’t want that toy
that bad,” but defendant pulled her over to him by pulling her wrist, and “pulled his penis
out of his pants.” Jane Doe reacted by biting defendant’s penis. Defendant got mad, but
followed through on his promise to buy the toy. On another occasion, when Jane Doe
was nine years old, Defendant straddled her on his hands and knees, and tried to force his
penis into her mouth while at the same time performing oral sex on her.
              Jane Doe went to a physician for a pre-school physical examination when
she was starting seventh grade. She had noticed she was lactating, her clothes weren’t
fitting anymore, and she had felt something moving inside. The physician confirmed she
was pregnant. Jane Doe lied to the social worker, telling her that a boyfriend was the
father of the baby. Jane Doe told the lie because defendant had threatened her by saying
4
             Jane Doe’s half brothers were fathered by defendant. Jane Doe’s biological
father was another man.
5
              This was the incident alleged in count 1, which the People ultimately
dismissed after the jury failed to reach a verdict.

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if she ever “said anything that [her] family was going to get destroyed.” Jane Doe
delivered a baby daughter approximately three months after her twelfth birthday. DNA
testing, done after defendant’s arrest, confirmed that defendant was the father.
              About six months after giving birth, defendant started having sex with Jane
Doe again, at first once in a while and then “on a daily basis.” The conduct occurred
continuously until Jane Doe was 17 years old. Jane Doe testified that when she reached
the age of 17, it had gotten “to the point that [she] was fed up with it.” After that,
whenever defendant tried to enter her room, she refused him entry.
              Eventually, Jane Doe reported the conduct to the police. The police
                                            6
arrested defendant, explained his Miranda rights in Spanish, and conducted an
interrogation in which defendant admitted having sexual intercourse with Jane Doe after
the baby daughter was born, but insisted he never penetrated her before the birth.
According to defendant, he only masturbated in front of Jane Doe. Defendant also
admitted oral copulation, but minimized the conduct by emphasizing he only kissed her
vagina and she only kissed his penis.


                                        DISCUSSION


              Defendant’s appellate counsel has suggested we review the record to
determine whether defendant’s conviction is supported by substantial evidence, whether
defendant’s statements to the police were properly admitted, and whether the trial court
erred by not instructing the jury that section 288, subdivision (a), was a necessarily
included offense within section 269. Counsel has submitted his declaration pursuant to
People v. Wende, supra, 25 Cal.3d 436, in which he attests that after a thorough review of
the record, he was unable to identify an arguable issue. We disregard the potential issues

6
              Miranda v. Arizona (1966) 384 U.S. 436.

                                                4
suggested by counsel because he failed to provide supporting argument. (Associated
Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366,
fn. 2.) Of course, by filing a Wende brief, counsel has verified he could not find a
supporting argument for these, or any other, issues. In any event, in the course of
conducting our independent review, we have considered the potential issues suggested by
counsel and conclude none of them raise an arguable issue. Counsel’s assessment is
correct.
              As noted, defendant filed a supplemental brief. We must consider each of
the issues personally raised by defendant. (People v. Kelly (2006) 40 Cal.4th 106, 124.)
Defendant raises two issues: (1) trial counsel was deficient; and (2) he is innocent – Jane
Doe and her mother lied to carry out a plan to extort him.
              None of the purported deficiencies of counsel appear in the appellate
record. We conclude after our independent review of the record that defense counsel did
a thoroughly professional and competent job at trial with very difficult facts. To the
extent defendant complains about purported deficiencies not appearing in the record, his
remedy, if he has one, is by writ of habeas corpus. (People v. Szadziewicz (2008) 161
Cal.App.4th 823, 839 [“When the record does not demonstrate the alleged error or
prejudice, the proper remedy is a petition for a writ of habeas corpus”].)
              As to the assertion that witnesses lied, we are bound by the credibility
determinations made by the jury as the trier of fact. (People v. Ramos (1997) 15 Cal.4th
1133, 1165 [“Credibility determinations are for the trier of fact, not the court”].)
The evidence at trial was overwhelming and amply supported the verdict of the jury.
We are not permitted to reweigh the evidence.
              We have reviewed the entire record under Wende, supra, 25 Cal.3d 436,
and have not found any arguable issues on appeal.




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                                  DISPOSITION


            The judgment is affirmed.




                                            IKOLA, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



MOORE, J.




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