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People v. Perez

February 24, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARIO RENEE PEREZ, DEFENDANT AND APPELLANT.



(Santa Clara County Super.Ct.No. CC644739). Hon. Arthur Bocanegra.

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

CERTIFIED FOR PUBLICATION

A jury convicted the defendant, Mario Renee Perez, of three sex offenses, each involving a different victim. He claims that the statute of limitations barred his prosecution on two of the three charges. He also claims that there was insufficient evidence to sustain the judgment as to one of his convictions and that evidence of child sexual abuse accommodation syndrome is generally inadmissible. Finding that recent California Supreme Court decisions compel rejection of his limitations claim and that his other claims lack merit, we will affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

I. Convictions and Sentence

An information charged defendant with four counts of committing a lewd or lascivious act on a child by force or fear in violation of Penal Code section 288, subdivision (b)(1).*fn1 Each of the four charges named a different victim. The information alleged with regard to each count that defendant fell under the alternative, and more severe, punishment scheme set forth in the "One Strike" law (§ 667.61, subds. (b), (e)). Of importance to defendant's appeal, the information alleged, with regard to counts one and four, that defendant violated section 288, subdivision (b)(1), between January 1, 1995, and September 1, 1996. A jury convicted defendant on counts 1, 2, and 4, and found true the section 667.61 allegation appurtenant to each count. The jury found defendant not guilty on count 3 and not guilty on one lesser-included offense to count 3, but could not agree on his guilt regarding another lesser-included offense to that count. The court dismissed prosecution for the unresolved lesser-included offense to count 3 in the interests of justice. Defendant received a sentence of 45 years to life in state prison.

II. Facts

A. Count 1

The victim in count 1 lived in a San Jose apartment with her father and defendant. One day, when the victim was five or six years old, defendant rubbed the victim's vagina over her clothes. The victim was scared and felt "weird and awkward." Similar behavior occurred several times. On one occasion defendant gave the victim a look that she interpreted as a warning not to resist by moving.

B. Count 2

Count 2 involved a different victim. Defendant was living with the victim's grandmother and the victim, a girl who was approximately nine or 10 years old. The victim and defendant were alone at home when she entered the adult couple's bedroom. She took or prepared to take some spare change that was in or on a desk in the bedroom and told defendant not to tell on her.*fn2 He replied that he would not do so but, in exchange, he asked her to perform sexual acts for him. He drew the blinds and asked her to get on top of him and kiss his neck. The victim was reluctant, but defendant persisted and warned her that he would tell her grandmother about the money if she did not comply. She feared being reported and acceded to his request, but without wanting to. The activity made her feel "[w]eird" and she answered "[y]es" when the prosecutor asked if she was "scared" at the time. She straddled defendant and kissed his neck. At some point defendant got on top of the victim, but the victim's trial testimony and prior statements provided no details regarding this act. The episode ended when the victim went to her own bedroom and went to sleep.

C. Count 4

Count 4 involved yet another different victim, the sister of the victim in count 1. Like her sister, she lived in the same apartment as defendant. When she was eight or nine years old, defendant would wink and throw kisses to her. Once, when she and defendant were alone, he inserted a hand inside her pants and fondled her genital area. He also touched her breasts. He warned her that if she told her father, who also lived in the apartment, he would kill him. He engaged in skin-to- skin breast contact on numerous occasions and would kiss her on the face, saying "mi amore" [sic] as the victim tried to fend him off. (Italics added.) He placed her hand on his penis once. He would masturbate in front of the victim and her sister, the victim in count 1. He gave her a back rub on one occasion that she interpreted as sexual. The victim would regularly resist both physically and verbally but defendant would overpower her. Defendant's conduct "would make me feel uncomfortable and ugly, like it was my fault."*fn3

DISCUSSION

I. Statute of ...


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