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The People v. Donald Bruce Vechik

January 25, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DONALD BRUCE VECHIK, DEFENDANT AND APPELLANT.



Super. Ct. No. 62-080001

The opinion of the court was delivered by: Nicholson,j.

P. v. Vechik CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Donald Bruce Vechik, age 59, of one count of forcible lewd acts with a child under age 14 (Pen. Code, § 288, subd. (b)(1); count one)*fn1 and three counts of lewd acts with a child under age 14 (§ 288, subd. (a); counts two, three & five). It acquitted him of a fourth count of the latter offense (count four). The jury found true allegations that defendant had a 1997 Kern County conviction of continuous sexual abuse (§§ 288.5, subd. (a), 667, subds. (b)-(i), 667.51, subds. (a) & (b)) and had served a prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to state prison for 72 years to life, as follows: on count one, an indeterminate term of 25 years to life (§ 667.61, subds. (c)(4), (d)(1)), doubled for the prior strike, plus five years consecutive for the prior sex crime conviction (§ 667.6, subds. (a), (e)(5) & (6)); on count three, the principal determinate midterm of six years, doubled for the prior strike; and on count five, a concurrent doubled six-year midterm plus five years consecutive for the prior conviction (§ 667.51, subds. (a) & (b)). Sentence on count two and its enhancement were stayed pursuant to section 654.*fn2

On appeal, defendant contends (1) evidence of his prior sexual misconduct involving his niece and daughter was erroneously admitted, (2) the testimony of a defense expert witness was erroneously limited, (3) his statement to police was admitted in violation of his Fifth Amendment rights, and (4) the court erroneously imposed two five-year enhancements pursuant to sections 667.51 and 667.6. We find no prejudicial error and affirm.

FACTS

Victim R.S. was seven years old when she testified in May 2009. She lived in a motel room above a restaurant in Cisco Grove with her mother and her brother. R.S.'s father was incarcerated. Her maternal grandmother lived in a mobile home behind the restaurant. The grandmother worked with defendant at a rest stop on the highway. The grandmother was involved with alcohol and drugs. The mother had her own set of problems.

For about three months in 2008, defendant lived in a motel room next door to R.S. In his room, the two played games in which they fought and wrestled around while pretending to be animals. They read books together, and he gave her books as Christmas presents.

Inside defendant's room were eight videos for children and two books for children. Also inside the room were six children's drawings for children, a bag full of stuffed animals, and a compact disc of computer programs for children.

Defendant transported R.S. to and from school approximately 10 times. He told her teacher that he wanted to "be there" for R.S. when her grandmother was not available, and that "his door is always open" for R.S. Defendant explained to the teacher that he made himself available to R.S. after school.

On one occasion in 2008, while defendant and R.S. were in his room, he pulled down her pants and touched her vagina. He also touched her chest. She was scared when he touched her. He told her not to tell anyone about the touching.

R.S.'s teacher was informed, and later confirmed, that defendant was listed on the Megan's Law Web site. He was a registered sex offender who had spent six years in prison for molesting his daughter. The school principal telephoned the sheriff's department and requested that they do a welfare check on R.S. The teacher telephoned Child Protective Services (CPS).

After being advised that CPS would be investigating, the mother questioned R.S., who acknowledged that defendant had touched her with his hand. R.S. explained that, after telling her that each of his fingers was an animal, defendant "just started playing with" her private area. At the time of her conversation with R.S., the mother was unaware that defendant was a convicted sex offender. The mother told R.S. to tell the CPS worker the truth no matter what.

Thereafter, the mother reported her conversation with R.S. to the grandmother and to the grandmother's friend and colleague from work, Christine W. After word spread among the grandmother's co-workers, Christine obtained a pole and hit defendant (also a co-worker) three times.

In May 2008, R.S. was interviewed at a multidisciplinary interview center (MDIC). The jury saw a video of the interview.

Placer County Sheriff's Detective Ken Ferreira interviewed defendant in May 2008. The jury heard a recording of that interview.

Defendant told the detective that he did not know the mother or grandmother very well. He would hug and hold R.S., help her with her homework, do craft projects with her, and play games with her. They would have mock fights and would wrestle.

Defendant explained that he touched R.S. while they were playing, and he got a little too close to her private area. He admitted touching her near her pubic area but denied touching her vagina. He denied pulling down her pants, and he denied touching her while her clothes were off.

Defendant stated that he accidentally touched R.S., and his inner voice or gut feeling told him that something was wrong. The touching went on for a good five to 10 minutes. Defendant said he could have grabbed R.S.'s breasts inadvertently while they were wrestling around.

Defendant said he loved R.S. He also said that if he had not stopped himself with R.S., he would have relapsed. He said "the possibility would be just like back with my other daughter." He had touched his daughter's privates, breasts, and buttocks, for the purpose of sexual gratification, during a period when his wife was depressed and slept most of the time.

Defendant agreed with the detective's suggestion that R.S. could have been traumatized by the touching. Defendant previously had written his daughter a letter of apology, and he agreed to write one to R.S.

In his apology letter to R.S., defendant wrote that he loves her as she loves him, and that he felt like a father figure to her. He wrote that during their wrestling and tickling, he had touched her in places that he should not have touched. He added that he had done the same thing to his own daughter, and he hoped that R.S. could forgive him.

In 1997, defendant had told a Kern County Sheriff's Deputy that he had molested his daughter. The molestation had begun when the daughter was five or six years old and ended when she was 12. In the most recent incident he had gotten into bed with the daughter, removed her boxer shorts, and inserted his finger in her vagina.

Defendant and the daughter recalled approximately 25 incidents of molestation. In approximately half of those incidents, he had rubbed his penis against her vagina. On the same number of occasions, he had fondled her vaginal area using his finger. He had rubbed his daughter's chest every time. He had never ejaculated. He had rubbed his daughter's buttocks and had placed her hand on his penis.

Defendant said that on one occasion, he had molested his 10- or 11-year-old niece at a motel.

DISCUSSION

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