Filed 5/29/15 P. v. Diaz CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040549
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. B1154638)

         v.

ROBERTO DIAZ,

         Defendant and Appellant.


         A jury found defendant Roberto Diaz guilty of one count of lewd or lascivious
conduct (Pen. Code, § 288, subd. (c)(1)) for inappropriately touching one of his
stepdaughters while she was sleeping in her bed. The trial court sentenced defendant to
two years in state prison. Upon defendant’s timely appeal, we appointed counsel to
represent him in this court. Appellate counsel filed a brief stating the case and facts but
raising no issues. We notified defendant of his right to submit written argument on his
own behalf and received no response.
         We have reviewed the entire record to determine if there are any arguable
appellate issues. (People v. Wende (1979) 25 Cal.3d 436, 440-441.) We include here a
brief description of the facts and procedural history of the case, and the conviction and
punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
                                  I.     TRIAL COURT PROCEEDINGS
         The following is based on testimony from defendant’s jury trial. Maria A. has two
daughters, L. (born in 1994) and Li. (born in 1995). In 2002, Mother moved with her
daughters into a house owned by her babysitter. While living in that house Mother
started dating defendant (born in 1984), who was the babysitter’s nephew. Mother and
defendant married in 2004 and later had a son, Le. In 2008, Mother, defendant, L., Li.,
and Le. moved into a two-bedroom apartment in Sunnyvale. The older daughter L.
moved out of the apartment in February 2011.
         Li. testified that in the morning of June 20, 2011, she was asleep in her room
sharing a bed with Le. She woke up because she felt someone touching her vagina on top
of her pajamas and rubbing “in a back and forth motion.” She opened her eyes and saw
defendant with his hand on her stomach. Li. panicked and told defendant to get out of
her room, which he did. She picked up a pair of scissors for protection and left the house
with her brother while they were still in their pajamas. Li. and Le. walked to a pharmacy
and Li. called Mother, who drove them to a police station and reported the incident. L.
met them at the police station and reported that defendant had also touched her
inappropriately in the past.
         Defendant was arrested the next morning and advised of his rights under Miranda
v. Arizona (1966) 384 U.S. 436. During his interrogation, defendant eventually admitted
that the previous morning he had touched Li. on the stomach and that he had also touched
her vagina outside her clothes for 10 to 15 seconds. He claimed he did so because of
stress in his marriage. Defendant denied ever touching L. inappropriately.
         Defendant was held to answer and charged by first amended information with two
counts of committing lewd or lascivious acts upon Li. when she was 15 and he was at
least ten years older (Pen. Code, § 288, subd. (c)(1)) and two counts of committing lewd
or lascivious acts upon L. when she was under 14 years old (Pen. Code, § 288, subd.
(a)).1

         1
         Immediately after the first amended information was filed defendant moved and
was granted judgment of acquittal as to count two (one of the counts related to Li.). (§
1118.1.)
                                               2
       The foregoing evidence was presented at trial. Defendant also testified, denying
that he ever inappropriately touched any of the children and explaining that he falsely
admitted touching Li.’s vagina because he felt intimidated by the police. The jury
convicted defendant of count one, which pertained to his misconduct with Li. in her
bedroom in June 2011. The jury could not reach a verdict on the two counts that alleged
touching of L., and the court declared a mistrial as to those counts. Those counts were
later dismissed on the prosecution’s motion.
       The trial court denied probation and sentenced defendant to the middle term of
two years in state prison. The trial court also ordered defendant to pay a $400 restitution
fine (Pen. Code, § 1202.4, subd. (b)(1)) with an additional $400 imposed but suspended
pending successful completion of parole (Pen. Code, § 1202.45, subd. (a)); $2,765 in
restitution to the Victim Compensation and Government Claims Board; a $40 court
operations assessment (Pen. Code, § 1465.8, subd. (a)(1)); a $30 court facilities funding
assessment (Gov. Code, § 70303, subd. (a)(1)); and a $129.75 criminal justice
administration fee (Gov. Code, § 29550.1). The court waived a Penal Code section 290.3
fine after finding defendant did not have the ability to pay.
       We have reviewed the entire record and find no arguable issue.
                                   II.    DISPOSITION
       The judgment is affirmed.




                                               3
                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Rushing, P.J.




____________________________
Márquez, J.
