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The People v. Demetrio Burciaga

March 8, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DEMETRIO BURCIAGA, DEFENDANT AND APPELLANT.



(Super. Ct. No. 101655)

The opinion of the court was delivered by: Robie , Acting P. J.

P. v. Burciago

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Demetrio Burciaga took in his 15-year-old niece E. after she had had a fight with her father (defendant's brother). The next morning, defendant gave E. a massage using a massage "machine." He then put aside the machine and touched her stomach and vagina with his hands and kissed her chest over her sweater. A jury found him guilty of committing three lewd acts -- touching her stomach, touching her genitals, and kissing her chest. The court sentenced him to two years and four months in prison.

Defendant appeals and raises issues relating to lesser included offenses, the evidence, and sentencing. Finding no prejudicial error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A

The Prosecution's Case

E. got into an argument with her father that turned physical. Police were called to the home to separate E. from her father, and the father told police "he didn't want [E.] to stay" at the home that night. E. asked both of her aunts whether she could spend the night with them. Both rejected her. Defendant was "the last relative [who] [she] had, and he offered for [her] to stay at his house." E. was "happy" "[b]ecause [she] actually had a relative [who] still wanted [her] to be in their home."

One of defendant's sons drove E. to defendant's house. Defendant's wife and his daughter were not there because they were vacationing in Mexico. E., defendant, and his two sons watched movies. E. told defendant that her back was hurting her. He "didn't do anything about it or say anything, and then [E.] just went off to bed" in defendant's daughter's room.

The next morning, Friday, February 5, 2010, defendant made the family breakfast. E. was "pretty happy" because "[n]obody makes [her] breakfast." After breakfast, defendant's sons left for school. Defendant told E. she did not have to go to school. It "didn't seem like [defendant] was going to work" either. E. (who had on a shirt, sweater, jeans, and her shoes) told defendant her back was hurting from the fight with her father. Defendant said he could massage it. He directed her from the kitchen to his bedroom and told her to lie down on his bed. E. lay down on her stomach. Defendant began using a massage machine on E.'s upper back, which is where she told him she was hurting. He did that for a "little bit" and "after that[, he] just focused on [her] lower back." E. "kept telling him it was on [her] upper back that was hurting" but defendant "just kept, like, going on [her] lower back." He then used the machine to massage her "butt," thighs, and legs. E. again "told him it was [her] upper back . . . but he just kept massaging that area." E. was feeling "a bit" uncomfortable. He then separated her legs and started massaging her inner thighs with the machine. E. asked what defendant was doing, and defendant responded by telling E. to turn on her back. Defendant then started using the massage machine on her stomach and her legs. Defendant then wrapped the cord around the machine and put it to the side of his bed.

Defendant put his hands on E.'s stomach and massaged her stomach (count 1). He then "reached down [her] pants, and in between [her] [vaginal] lips . . . touched [her] right there" (count 2). Then he kissed her chest on top of her sweater (count 3). She slapped his hand off her. Defendant tried to kiss her again, but E. pushed him off her. Defendant "kept saying he was sorry, and he kept cursing at himself" "that he was stupid." He told her "a couple of times" "not to tell anybody."

E. left defendant's bedroom, gathered some of her belongings, and told defendant she wanted to leave. When they got into his van, defendant told E. "he thought [E.] was easy like [defendant's wife]."

They arrived at E.'s house, but E.'s father said he did not want her there. Defendant then dropped E. off at school. She left because she "didn't want to be there the whole day just thinking of what happened . . . ." Later that day, E. told a female cousin that defendant "touched [her]" and in "what area he had touched [her]" but did not get into the details. She ended up spending the night with the cousin's family and told the mother of the cousin that defendant "had touched [her]." E.'s father picked her up the next morning.

E. told her father what defendant had done one week later when her father was driving her home from school. "[S]he said that my brother had stuck his hand under her pants." "She told me that she had asked him to rub her back because she was sore." "[H]e used an electrical machine on her back . . . [a]nd then he stopped using the electric machine and started using [his] hands . . . and to lay with her stomach facing up. He stopped using the electronic machine and used his hands." "[H]e had been rubbing her stomach with his hands, but that she felt that he put his hands under her pants."

The following Monday, E.'s father reported the incident to police and then took E. to the Yolo County Child Protective Services Office in Woodland. E. met with social worker Amber Presidio. E. told Presidio defendant "rubbed her stomach" and "tried to put his hand down her pants." Presidio did not ask "any type of follow-up questions" because when social workers "first get a report [of suspected child abuse], [they are] not taught to ask follow-up questions, [they] are taught to end the interview and contact law enforcement so that a full forensic interview can be set up . . . ."

Social worker Presidio reported "an attempted molestation of a victim" to the Yolo County Sheriff's Department. The sheriff's department set up an interview between E. and the center that specializes in interviewing children regarding sexual assaults.

An employee of the center, Maria Flores, interviewed E. E. told her, "[defendant] had touched her in different places on her body." E. said "he reached down and that she felt his finger on her private area," "[her] clit," and confirmed that E. told her defendant "actually . . . kissed her on her chest."

B

The ...


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