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The People v. Rojelio Cuevas

April 29, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROJELIO CUEVAS, DEFENDANT AND APPELLANT.



(Super. Ct. No. 11F03397)

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

P. v. Cuevas

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant Rojelio Cuevas has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing of the opening brief, and defendant has filed a brief claiming error. As we will explain, we are not persuaded by his claims; further, we see no arguable error that would result in a disposition more favorable to defendant. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

People's Case-in-Chief

On May 16, 2011, while sixth grader M.D. was walking through Oki Park on her way home from school, a man with a young child walked past her and said, "[y]ou're hella sexy." M.D. then saw the same man driving a car out of a restaurant parking lot. The man said, "[c]ome here," but M.D. just kept walking; she walked really fast because she was scared.

M.D. then walked through the parking lot of a flea market. A car pulled in and blocked her path. The same man, later identified by her at trial as defendant, got out of the car and tried to grab her arm. She pulled away and ran home. When she arrived home she was crying and yelling. She told her mother that a man had walked by her, had said, "[h]ella sexy" to her, and later had tried to "snatch" her. Her mother called the police.

The next day, police officers patrolling near M.D.'s school saw a car and driver that matched the description she had provided--a gold four-door Ford Taurus and a male Hispanic with a mole on his face. The police stopped the car and identified the driver as defendant. M.D. was brought to the scene for a field show-up. She was "98 percent sure" the car was the same one that had followed her. About defendant, she said: "I don't know. I don't think that's him. I see the mole. I don't remember. I don't want to put the wrong person in jail."

The police obtained surveillance videos from businesses near the parking lots where M.D. had walked the day of her various encounters with defendant. A video of the restaurant's parking lot showed a car that looked very much like a Ford Taurus, with a white sticker on the bottom of the front windshield. Police found a very similar white sticker in the same place on defendant's car. The video also showed what looked like M.D. walking through the parking lot, and the car following. The video did not show where the car went after it left the parking lot.

Police took defendant into custody 10 days after the incident. When interviewed, he told them he had picked up his son from school and had taken him to the park to play. He originally denied seeing or talking to anyone at the park or when driving elsewhere, but eventually admitted some limited contact with M.D. He told the police that when M.D. had walked past them, he said to his son, "[o]h, she's pretty huh son." Later, when driving home, defendant saw M.D. and followed her into a parking lot. M.D. turned around when defendant's brakes squeaked loudly and he drove home. He did not speak to M.D., leave his car, grab her, or follow her to the flea market. He thought M.D. was 16 years old.

Defense Case

Defendant testified that, on the day of the incident, he picked up his son from kindergarten and they went to Oki Park. While entering the park, they passed M.D. walking in the opposite direction. Defendant asked his son, "[s]he's pretty, ...


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