(Super. Ct. No. 07F10709)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Vanessa and her children, including S.A., lived with defendant Roderick Bernard Randall in 2004. S.A. was 12 years old at that time. S.A.'s cousin, J.C., was also 12 years old in 2004 and would frequently spend the night at S.A.'s home.
Beginning when she was 12 years old, defendant had sexual intercourse with S.A. The first incident took place when he came into her room, took her into the living room and had sexual intercourse with her. S.A. believed he had sexual intercourse with her five or six times at that house. The following year, when she was 13, they moved to Elk Grove and defendant had sexual intercourse with S.A. about four times. They moved again and had intercourse another seven or eight times. When she was 14, S.A. became pregnant. Defendant was the only person she had had sexual intercourse with. After 24 hours of labor, which also required an epidural to help alleviate her pain, she gave birth to a son, the day after her 15th birthday. Defendant denied raping S.A. and denied the child was his. When DNA testing established defendant was the father of the baby, defendant admitted having sexual intercourse with S.A. twice.
Defendant also began inappropriate sexual contact with J.C. when she was 12 years old. On approximately eight occasions, when she was spending the night with her cousin at his home, he would lick her vagina, touch her breasts and have intercourse with her. When she was 13 or 14 years old, he also had sexual intercourse with her at her home, when no one else was home. Defendant denied having any sexual contact with J.C.
Following a court trial, defendant was found guilty of four counts of committing a lewd and lascivious act against a child under the age of 14 years old, two against S.A. and two against J.C. (Pen. Code, § 288, subd. (a), counts one, two, four and five, respectively) one count of committing a lewd and lascivious act with a child at least 10 years younger than defendant, one against S.A. and one against J.C. (Pen. Code, § 288, subd. (c)(1), counts three and seven, respectively). As to count three, it was also alleged defendant had caused great bodily injury to S.A. in causing her pregnancy. It was further alleged as to count seven defendant had committed the offense against two or more victims and had engaged in substantial sexual conduct. Defendant was sentenced to a term of 60 years to life, consecutive to a determinate term of five years, eight months. Defendant was awarded 920 days of custody credit under Penal Code section 2933.1. Various fines and fees were imposed, as well as victim restitution.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief asserting he had a consensual relationship with S.A. He claims he did not use force against her, threaten her or rape her. He supports this claim with the assertion she did not scream or tell anyone about the rape. We reject defendant's claims.
Defendant was neither charged with, nor convicted of, rape. The use of force or threats is not an element of any offense defendant was charged with or convicted of. Nor is screaming. Defendant was charged with and convicted of violating Penal Code section 288, committing lewd and lascivious acts on a child under the age of 14 years old. It is well settled that consent of the child is no defense to that charge. (See People v. Cicero (1984) 157 Cal.App.3d 465, 482; People v. Toliver (1969) 270 Cal.App.2d 492, 496.) "The law simply outlaws sexual conduct with children under the age of 14 under all circumstances." (People v. Cicero, supra, 157 Cal.App.3d at p. 482.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a ...