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The People v. Simon Marcus Gonzales

December 8, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SIMON MARCUS GONZALES, DEFENDANT AND APPELLANT



APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs, Judge.

The opinion of the court was delivered by: Hollenhorst J.

P. v. Gonzales CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Affirmed.

Defendant and appellant Simon Marcus Gonzales was charged with one count of sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1), count 1), one count of sexual penetration by a foreign object of a person under the age of 18 years (Pen. Code, § 289, subd. (h), count 2), and two counts of forcible rape (Pen. Code, § 261, subd. (a)(2), counts 3 & 4). A jury convicted him of count 2 and two counts of unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (b)), the lesser included offense of counts 3 and 4. The jury deadlocked on count 1, and the trial court declared a mistrial as to that charge. Count 1 was subsequently dismissed on the People's motion. The trial court placed defendant on probation for a period of five years, including 270 days in county jail.

Defendant's sole contention on appeal is that the trial court abused its discretion in permitting the prosecution to impeach him with evidence that he previously committed a petty theft. We affirm.

FACTUAL BACKGROUND

Prosecution Evidence

The victim testified at trial that she was 15 years old in 2007. In July 2007, she took a class at a driving school and met defendant. After the class was over, she "found him on My Space," and they started communicating. Defendant told her he was turning 18 in August 2007, and she told him she was 15. They then started talking on the phone. The victim told him she was a virgin and wanted to remain so until she was married. Defendant said he respected that. They went on their first date at the beginning of August 2007 and became a couple. On defendant's birthday, August 21, they met each other at the movie theater in the afternoon. There were only two other people in the theater, and defendant decided that he and the victim should sit in the far back corner of the theater. During the movie, defendant started kissing her. The victim had her legs crossed, and defendant put his hand down inside her pants. She tried to keep defendant's hand away by keeping her legs crossed and by trying to take his hand and moving it. However, defendant was much stronger than her. He unbuttoned her pants and put his fingers into her vagina. The victim told him it was hurting, and he told her to uncross her legs. He eventually took his hand out of her pants, so she got up and went to the bathroom. She noticed a small blood stain on her underwear. After the movie, the victim was upset. Defendant asked her what was wrong, and then apologized. She told him it could not happen again.

About one month later, defendant and the victim went to see another movie. They left the movie early and went to the apartment where the victim lived with her mother. They went up on the roof of the building. They were lying on a blanket, looking at the stars, when defendant got on top of the victim and unbuttoned her pants. She told him, "'No. Stop it.'" However, he continued and pulled her pants down past her knees. She was struggling and kicking to keep him off her, but he pinned her down with his hands and body. He placed his penis in her vagina. The victim repeatedly told him to stop, and she started crying. When defendant finished, he got up and left as she laid there. The victim eventually got up and went back to her apartment. When she went to the bathroom, she found blood on her clothes. She did not tell her mother what happened, but instead tried to "pretend it didn't happen." Sometime after the rooftop incident, defendant apologized to the victim on the phone.

One afternoon in late October 2007, defendant came over to the victim's apartment to watch a movie. They started to watch, but then decided to go get something to eat. The victim went to her room to change her clothes, and her mother left to go to the store. The victim was in her closet looking for something to wear, when defendant came up from behind her and threw her on the bed. He again pulled her pants down, despite her resistance. He pinned her legs and told her to "grow up" and relax. He put his penis inside her vagina, even though she kept trying to get him to stop. After he was finished, he got off her and went to the bathroom. The victim was shaken up and crying. She noticed that her legs, inner thighs, and genital area were covered in blood. Defendant left the apartment. When her mother returned, the victim did not tell her what happened, but said she had just had her period. The victim testified that she never planned on telling anyone what happened. She was ashamed of herself and of being with someone who could do such things to her.

The victim continued to talk to defendant, but, in early November 2007, she broke up with him. At the end of the school year, the victim told one of her teachers that she had been raped. The teacher eventually convinced the victim to speak with the school resources officer, Deputy Williams. Deputy Williams subsequently had the victim make a pretext phone call to defendant, which was recorded. An audiotape of the call was played for the jury at trial. During the call, the victim talked to defendant about what had happened between them, and she asked him if he thought she wanted to have sex. He said, "I think--No--I mean no, I was just pushing the limit." When she asked him why he did it, if he did not think she wanted to, and he said, "I have ...


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