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People v. Quintanilla

January 22, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
NERY QUINTANILLA, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Affirmed. (Los Angeles County Super. Ct. No. BA300632).

The opinion of the court was delivered by: Kriegler, J.

CERTIFIED FOR PUBLICATION

The jury found defendant and appellant Nery Quintanilla guilty of two crimes against a child, whom we refer to as A.*fn1 -aggravated sexual assault (rape) and a forcible lewd act (Pen. Code, §§ 269, subd. (a)(1)), 288, subd. (b)).*fn2 The trial court imposed an indeterminate term of 15 years to life for the aggravated sexual assault and a consecutive low term of three years for the forcible lewd act. In his timely appeal, defendant contends the court abused its discretion by imposing a full consecutive sentence under section 667.6, subdivision (c). He also challenges the imposition of a consecutive sentence as a violation of his Sixth Amendment right to a jury trial.

We affirm.

STATEMENT OF FACTS

Prosecution

A. Charged Offenses

A. was 13 years old on March 31, 2006. Her mother, A.B., lived with A. and her siblings in an upstairs apartment in Los Angeles. Defendant was a longtime resident of the apartment building, whom A.B. had seen and greeted many times. Whenever defendant saw A., he would ask, "how is your family"?

At approximately 4:00 p.m., A. went outside to take out the trash. There were two ways of reaching the apartment building's trash receptacle in the garage underneath the apartments-either through the front or the back of the building. Worried because A. was taking so long to return, A.B. looked for her daughter in front of the building. Not finding her there, A.B. returned to the apartment to see if she and her daughter had crossed paths. Not finding A. at home, A.B. went downstairs to the garage.

On the way down the stairwell, A.B. heard her daughter saying, "Stop, stop. Leave me alone." In the garage between two parked cars, A.B. saw defendant holding A. by her wrists, as the girl repeatedly told defendant to stop and leave her alone. A. was leaning against a car, facing defendant. A.'s pants were pulled down to her knees, as were defendant's. A.B. shouted, "Is that you?" Defendant, surprised, drew away from A. and began to pull up his pants. A.B. saw defendant's erect penis. She took her daughter upstairs to their apartment, where she reported the matter to the police. Officers arrived and took them to the hospital, where A. was examined.

A. testified that she was a friend of defendant's daughter and defendant would typically engage her in friendly conversation. On the afternoon of March 31 she went toward the back of the apartment building to take out the trash. After putting the trash in the bin, defendant stopped her and asked about her family. When A. was about to leave, defendant grabbed her by the wrists and pushed her between two cars. She told him to leave her alone, but he pulled down her pants as she continued telling him to go away. Defendant pulled down his own pants, exposing his penis. He touched her vaginal area with his hand, causing her pain. She kept moving her head away to prevent him from kissing her. As she continued to protest, defendant tried to penetrate her vagina with his penis. "It did not go all the way, it just went a little bit." Defendant pulled away when A.B. arrived.

Nurse Janie Salazar interviewed A. at the hospital. A.'s report of the incident was generally consistent with her trial testimony. The nurse conducted a full physical and genital examination, which revealed areas of redness around A.'s hymenial tissue, consistent with forceful touching and penetration. Defendant was also taken to a hospital where Nurse Jacqueline Foley conducted a sexual assault examination on him. There was evidence of semen on his genitals.

Criminalist Patricia Pape of the Los Angeles Police Department analyzed the sexual assault kits from defendant and A. She found sperm on swabs from A.'s genitalia, including the swab from her vulva. DNA analyst Jody Hrabal found ...


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