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The People v. Jimmy Sigala

January 6, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JIMMY SIGALA, DEFENDANT AND APPELLANT.



Los Angeles County Super.No. BA349781 Ct. APPEAL from a judgment of the Superior Court of Los Angeles County, Rand S. Rubin, Judge. Affirmed.

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

reposted to correct date

CERTIFIED FOR PUBLICATION

Defendant and appellant Jimmy Sigala was convicted by jury of three counts of continuous sexual abuse of a child under the age of 14 years. (Pen. Code, § 288.5, subd. (a).)*fn1 The jury found that defendant had substantial sexual contact with each victim (§ 1203.066, subd. (a)(8)) and committed an offense set forth in section 667.61, subdivision (c) against more than one victim.*fn2 Defendant admitted two prior convictions under the three strikes law. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Defendant was sentenced to three consecutive terms of 45 years to life.

In this timely appeal, defendant argues Judicial Council of California Criminal Jury Instructions (2008-2009) CALCRIM No. 1120, which defines the elements of lewd and lascivious acts on a child under the age of 14 for purposes of the continuous sexual abuse statute, erroneously advises the jury that the "touching need not be done in a lewd or sexual manner." We affirm, holding that the language in CALCRIM No. 1120 accurately reflects settled California law, and in any event, defendant could not possibly have suffered prejudice under the circumstances of this case.

FACTS

This prosecution was the result of discovery of photographs taken by defendant of his unclothed granddaughters, and one photograph of a granddaughter with defendant's penis in her mouth. Four of defendant's granddaughters testified to molestations by defendant. None reported being molested prior to discovery of the photos.

Defendant molested granddaughter J. by touching her vagina and breasts 19 or 20 times when she was 13 years old. J. touched defendant's penis because he told her to do so. The molestations occurred a few times per week when J. was 13 years old. One time she awoke from sleep to find defendant placing his penis in her vagina, causing pain and bleeding.

Defendant began molesting his granddaughter P. when she was seven years old, by touching her at a time when she appeared to be sleeping. Defendant got into bed with P. and rubbed his penis against her buttocks. When she was eight years old, defendant made P. touch his penis with her hands and mouth more than 20 times, sometimes ejaculating in her mouth or on her chest. When she was 11 or 12 years old, P. orally copulated defendant almost every day. One of the photographs taken by defendant depicted P. orally copulating defendant.

Another granddaughter, A., was molested by defendant starting at the age of 12, when he touched her chest. For the next two years, he touched her breasts and vagina every day, sometimes inserting his finger inside her. This continued until she was 18 years old. He placed A.'s hand on his penis a "couple of times." Defendant took nude photos of A., directing her to smile.

Defendant began molesting A.'s twin sister, An., when she was 16 years old. He touched her breasts and vagina more than 7 times. Defendant had An. touch his erect penis through his clothes. One time he got on top of her with an erect penis. Defendant took photos of her breasts.

The prosecution also presented the testimony of an expert regarding the child abuse accommodation syndrome, explaining why child molest victims do not report the abuse.

DISCUSSION

Defendant argues that CALCRIM No. 1120's definition of continuous sexual abuse of a minor in violation of section 288.5 erroneously instructed the jury that the "touching need not be done in a lewd or sexual manner." Defendant reasons that the objectionable sentence eliminated the essential element of section 288.5 that the touching is done in a lewd manner, thereby violating his Sixth Amendment right to a jury trial and Fifth and Fourteenth ...


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