Filed 4/17/14 P. v. Jaquez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065916
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR042348)
                   v.

DAVID GARY JAQUEZ,                                                                       OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. David D.
Minier, Judge. (Retired Judge of the Madera Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
         Susan D. Shors, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-

*        Before Franson, Acting P.J., Peña, J. and LaPorte, J.†
†     Judge of the Superior Court of Kings County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
                                    INTRODUCTION
       On June 25, 2012, appellant, David Gary Jaquez, was charged in an information
with a count of oral copulation of a child 10 years old or younger by a person 18 years or
older (Pen. Code, § 288.7, subd. (b), count 1),1 a count of digital penetration of a child 10
years old or younger by a person 18 years or older (§ 288.7, subd. (b), count 2), a count
of lewd and lascivious conduct on a child 14 years old or younger by sucking on the
victim’s breast (§ 288, subd. (a), count 3), and a count of lewd and lascivious conduct on
a child 14 years old or younger by kissing the victim’s neck and “moving up and down
on her” (§ 288, subd. (a), count 4).2 At the conclusion of a jury trial on August 29, 2012,
appellant was convicted of all four counts.
       On October 3, 2012, the trial court sentenced appellant to two consecutive
indeterminate terms of 15 years to life on counts 1 and 2, a consecutive determinate term
of eight years on count 3, and a consecutive determinate term of two years on count 4.
Appellant was ordered to pay a restitution fine of $240 as well as other fines and fees.
The court granted appellant 317 days of credits for time served in jail prior to sentencing,
47 days of conduct credits, and total custody credits of 364 days. Appellant filed a notice
of appeal on October 5, 2012.
       Appellate counsel has filed a brief seeking independent review of the case by this
court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
                                          FACTS
       When she testified at trial, Jane Doe was just beginning the fifth grade and had
turned 11 years old in April 2012.3 Jane identified appellant as her grandmother’s ex-

1      Unless otherwise designated, all statutory references are to the Penal Code.
2      A criminal complaint with only two counts was filed on November 28, 2011.
3     Pursuant to section 293.5, subdivision (b), the victim was referred throughout the
proceedings as Jane Doe. The jury was instructed pursuant to section 293.5,

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boyfriend who had lived in her house for years. Appellant was born in 1953 and was 59
years old at the time of trial.
Count 1
       Jane testified that the first incident occurred when she went with appellant in his
pickup truck to pick up his mother’s mail. On the way back, appellant stopped his truck
in a field. Jane asked appellant for candy because he gave it to her often. Appellant told
Jane that if he gave her candy, he would have to touch her. The truck had a bench seat.
Appellant told Jane’s to pull her shorts down. Jane’s head was by the passenger door, her
feet were by the radio. Appellant put his head down and licked Jane’s “middle part,” the
place from which she urinated. Appellant did this for five minutes and gave Jane some
beef jerky.
       A sheriff’s deputy then drove up. Appellant told Jane the cops were coming, to
pull up her shorts, and to pretend she was asleep. Appellant told the deputy they were
there just so Jane could sleep for a little while. The deputy told appellant to leave.
       Deputy Andrew Rodriguez of the Madera County Sheriff’s Department testified
that on February 21, 2009, he was driving down Avenue 21 and looked south where he
saw a truck parked 30 to 50 feet off the road in an orchard. Rodriguez contacted
appellant. Rodriguez asked appellant what he was doing. Jane was lying down next to
appellant on the passenger seat. The situation did not “sit right” with Rodriguez who
called dispatch to see if there were any wants or warrants for appellant. The dispatcher
told Rodriguez appellant and his vehicle were clear.




subdivision (b) and CALCRIM No. 123 that the victim was being identified as Jane Doe
only to protect her privacy.


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       Rodriguez later learned of the investigation in the instant action from Detective
Zamudio. Rodriguez ran appellant’s information through the computer and found he had
encountered appellant in 2009.
Count 2
       Jane explained that appellant touched the middle part of her body with his mouth
and hands. Appellant molested Jane frequently. Jane asked appellant for a piece of
candy and appellant told her that she would have to do something. Appellant put his
hand on her and moved it around her middle part, placing his finger inside her body and
moving it up and down. Appellant then gave Jane candy. When appellant placed his
hand inside Jane, her middle part tickled.
Count 3
       The night before Jane reported that she was being abused by appellant, Jane went
to appellant’s bedroom to get some candy. Appellant told Jane she would have to do
something. Jane laid down and appellant licked her breast, her middle part, and her butt.
Count 4
       On another occasion, appellant had Jane facing the bed while he remained behind
her. Appellant put Jane’s hands on the bed, got close to her, and rubbed his middle part
against her butt. Appellant’s middle part felt hard and he placed a lot of pressure on Jane
moving up and down. This lasted for 10 minutes. Appellant also pulled Jane’s hair back
and licked her neck. Jane explained that appellant was leaning against her. At the
beginning of his conduct, appellant’s middle part felt soft, later it felt hard.
Other Evidence
       When appellant’s sexual conduct began, Jane was seven years old and she did not
understand that it was wrong. By the time Jane was nine or ten years old, she understood
it was wrong.



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       Jane explained that appellant kept a lot of candy in his room and he sometimes
gave her candy for doing chores. Jane and her cousins sometimes went into appellant’s
room to steal candy.
       One or two weeks before Jane reported anything, she was lying on appellant’s bed
with him watching television. Appellant told Jane to turn around. Jane could feel
appellant scoot his body up to her. She could feel appellant’s stomach. Appellant told
her to pull down her pants and she heard appellant open his zipper. Jane jumped off the
bed because she was afraid he was going to stick his middle part in her buttocks.
Appellant told Jane to get out.
       Jane reported appellant’s abuse to a yard duty lady at school, who took Jane to the
school principal. Jane then talked to investigators. Appellant never touched Jane again.
During direct examination, Jane identified photographs taken of her home, appellant’s
bedroom, a sign “candy connection” appellant displayed in his bedroom, and candy that
appellant kept in his bedroom. The photographs were taken in November 2011.
       Jane’s grandmother, Sylvia M., testified that she lived in the basement with
appellant until May 2010 before moving into another room. Sylvia M. testified that she
never saw anything unusual occur between the children and appellant. According to
Sylvia M., appellant was impotent and unable to have an erection the entire time she
knew him.
       Appellant was arrested late in 2011. Prior to his arrest, Sylvia M. was contacted
by Detective Mark Trukki. Sylvia M. agreed to call appellant. Trukki recorded the
telephone conversation. Sylvia M. listened to the recording of the conversation prior to
her testimony and described the conversation as accurate. The audio recording was
played for the jury.
       During the conversation, appellant said he played around with Jane, but did not do
anything to her. When Sylvia M. asked appellant why he gave Jane candy and touched

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her, he replied that he did not know. When Sylvia asked appellant if he had done this
before, he replied, “No.” When she asked if this was his first time, appellant replied,
“Yes.” Appellant admitted that he did not feel good about himself. Appellant denied this
had been going on for years.
       When he was asked whether he touched Jane with more than just his finger and his
tongue, appellant said, “no.” Sylvia M. asked if this all began about the time her
daughter passed away. Appellant replied, “I guess about then,” about the time Sylvia M.
stopped sleeping downstairs. Appellant did not know how many times he touched Jane
and told Sylvia M. that he was not supposed to talk to her.
       Appellant told Sylvia M. that they were going to send him to prison, he felt bad for
what he had done, he felt bad for what Sylvia M. was going through, and he felt bad for
everyone. Appellant said he was not going to make Jane go to court. When Sylvia M.
asked if he only used his fingers and his tongue on Jane, appellant replied, “Nothing
else…. I promise!” Appellant swore that he never made Jane touch him.
       Detective Trukki testified that Jane was given a physical examination. The results
of the examination were inconclusive and failed to show either that Jane had been
molested or that she had not been molested.
Jury Instructions for Lesser Included Offenses, Unanimity, and Uncharged Acts
       The jury was instructed on the elements of each offense. The jury was also
instructed on the lesser included offenses for each allegation of an attempted offense
(CALCRIM No. 460), battery (CALCRIM No. 960), and simple assault (CALCRIM
No. 915). The jury was instructed as to how to complete the verdict forms when lesser
included offenses are not separately charged (CALCRIM No. 3517). The jury received
limited instructions on how it could consider evidence of uncharged sex offenses
(CALCRIM Nos. 303 & 1191).



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       Although there was a brief discussion outside the presence of the jury concerning
giving a unanimity instruction pursuant to CALCRIM No. 3500, the jury did not receive
a unanimity instruction. Following the allegations in the information, however, the
prosecutor elected specific acts testified to by the victim for each count.4 The
prosecutor’s election of acts for each count during closing argument to the jury closely
followed the allegations in the information.
                           APPELLATE COURT REVIEW
       Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating that appellant was advised he could file his
own brief with this court. By letter on May 10, 2013, we invited appellant to submit
additional briefing. To date, he has not done so.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                     DISPOSITION
       The judgment is affirmed.




4       An alternative to giving the jury a unanimity instruction is for the prosecution to
elect a single act for each charge. (People v. Diaz (1987) 195 Cal.App.3d 1375, 1381.)
Because the prosecutor made an election of the act upon which a conviction for each of
the four counts must be based, we find that a more specific unanimity instruction was not
necessary. (Ibid.; also see People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.) Based
upon the prosecutor’s election, we further find the trial court did not have a sua sponte
duty to give a unanimity instruction.



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