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The People v. Francisco Rodriguez Pena

August 16, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FRANCISCO RODRIGUEZ PENA, DEFENDANT AND APPELLANT.



(Super. Ct. No. SF114005A)

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

P. v. Penz

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Francisco Rodriguez Pena was convicted by jury of committing a lewd act by force on a child under 14. Sentenced to a state prison term of 55 years to life under the "Three Strikes" law, defendant appeals. He contends: (1) the evidence was insufficient to convict him of committing a lewd act by force on the child, (2) the trial court abused its discretion and violated his constitutional rights by admitting evidence of his prior sexual offenses, and (3) the trial court misinstructed the jury with respect to the evidence of the prior sexual offenses by also allowing the jury to consider associated non-sexual offenses.

Finding no prejudicial error, we affirm.

FACTS

In January 2010, when Anna was 11 years old, she went to McKinley Park in Stockton with her father. Anna's seven-year-old cousin, A., also was at the park.

Anna and A. went into the women's restroom at the park. Defendant followed them in. While A. was in one of the stalls, defendant grabbed Anna by the arms and asked her if she wanted to smoke a crack cocaine pipe he had. He pushed her into a stall and closed the door. Still holding her arms, defendant asked Anna if she wanted to kiss him, and he moved his face closer to hers, within about three or four inches, trying to kiss her. Anna successfully avoided contact between their faces by crouching down and moving her head around.

Anna saw A. looking under the partition, and they both screamed. A. opened the stall door, and both girls attempted to run out. Defendant blocked them at the door out of the restroom and again showed them his crack pipe. He threatened Anna that if she did not smoke the pipe he would kiss A. The girls were able to get around defendant and escape from the restroom.

Outside the restroom, the girls ran screaming to Anna's father, and Anna told him that a man had tried to kiss her in the restroom. Her father told her to go call the police on a relative's cell phone, which she did. Officers arrived quickly, and Anna identified defendant, who was still close by, as the man who tried to kiss her.

Defendant was arrested. Before the officer said anything about the restroom, defendant said, "I didn't go in the bathroom."

PROCEDURE

A jury convicted defendant of committing a lewd act by force on a child under 14. (Pen. Code, § 288, subd. (b).) After a bifurcated trial, the court found true allegations that defendant (1) had a prior serious and violent felony (Pen. Code, §§ 667; 1170.12, subd. (b)), (2) had a prior conviction for a forcible sexual offense (Pen. Code, § 667.61, subd. (d)(1)), and (3) had a prior serious felony (Pen. Code, § 667, subd. (a)(1)).

The trial court sentenced defendant to state prison for an indeterminate term of 25 years to life, doubled to 50 years to life under the Three Strikes law, plus five years for the prior serious felony.

DISCUSSION

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