(Super. Ct. No. CRF 08-2117)
The opinion of the court was delivered by: Nicholson , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Louis Charles Romano, age 63, of two crimes, forcible foreign object penetration (count 5) and forcible oral copulation of 15-year-old R.H. (count 6). He was acquitted of possessing obscene matter depicting sexual conduct by minors (count 7). The jury deadlocked, a mistrial was declared, and dismissals were entered on four additional counts involving victim V.H., R.H.'s younger sister (counts 1 through 4). As a result, multiple-victim enhancement allegations on counts 5 and 6 were also dismissed. Defendant was sentenced to state prison for the upper term of eight years on count 5, plus a fully consecutive upper term of eight years on count 6.*fn1
On appeal, defendant contends (1) there was insufficient evidence that the sexual acts were committed by force or violence; (2) the trial court abused its discretion when it refused to sever the child pornography count, on which he was acquitted, from the remaining counts; and (3) his trial counsel rendered ineffective assistance to the extent that he should have objected to the volume of computer evidence. We affirm the judgment.
Defendant and R.H.'s father worked together at several construction companies and have been friends for 20 to 22 years. Eventually, defendant also became a friend of his wife and three daughters. Defendant accompanied the family to a theme park and shared holiday meals with them. The family would visit defendant at his residence, and the three girls would swim in his pool. Defendant would take the girls shopping and would buy them gifts. He liked to be called Uncle Lou.
During a visit in 2007, defendant told R.H. that he did not have any recent photographs of her and that he wanted to take some nice ones. He removed a blue shirt from her luggage and told her to put it on, which she did. He photographed her wearing the blue shirt, underwear, and a bra. He directed her to sit on the floor and spread out her legs.
Eventually, defendant suggested to R.H.'s parents she should "make extra money" by cleaning his house. One day, while she was cleaning, defendant asked R.H. if she had ever seen pornography. When she said no, he told her to go to the computer and sit on his lap. He proceeded to tell her about, and show her images of, a girl who "does pornography for a living."
One day in April 2008, defendant picked up the mother, R.H., and V.H. from the grocery store. He dropped off the mother at home and took the girls shopping. They went to a department store where defendant bought R.H. bathing suits, shorts, pants, and one or two shirts. She did not need a bathing suit, but defendant suggested that she buy one. He chose one style of suit for her and she chose another. Because she was not sure which size she wore, she bought two suits of her chosen style in different sizes. She did not try them on at the store because defendant said that she could try them on at his house.
When they returned to defendant's house, R.H. went to the upstairs bathroom to try on the bathing suits. He interrupted her and told her to come out of the bathroom. She stepped out wearing her T-shirt and swimsuit shorts and walked to where defendant was standing.
Defendant told R.H. to stand up on the bed. After she did so, he told her to try on the other bathing suit bottom. She did so, but it was too large, so she tried on the smaller size.
Defendant then told R.H. to try on the bathing suit top. After removing her T-shirt and sports bra but without removing her regular bra, she tried on the bathing suit top and he told her to sit down on the bed. She complied and he knelt down next to her. Then he ran his finger along the elastic of her underwear and told her that she should not wear such tight underwear because it would cut off the circulation in her legs. Next he "pulled on the inside of the bathing suit and the underwear so he [could] see what was between [her] legs." Then he pulled the bathing suit bottom and underwear down to her knees.
Once the bathing suit was pulled down, defendant began touching R.H.'s vagina and telling her that she "should clean [herself] down there more often because [she] could cause an infection." Eventually, he said that he would clean the area himself. He got some sort of paper towel or toilet paper from the bathroom, "clean[ed]" her vaginal area, and "stuck his finger inside" her vagina "no more than 20 times."
While defendant was putting his finger inside R.H.'s vagina, she "tried to close [her] legs," but he "put one hand on each leg to keep them open."
Defendant then asked R.H. if she used pads or tampons. When she told him pads, he told her she should use tampons because "pads were getting out of style and that it kind of makes -- it smells down there a little fishy . . . ." Then he moved closer and started licking her vagina with his tongue. She twice tried to scoot back away from him, but he continued licking her. She explained that she had made "little ...