People v. Garcia, Nos. F019265

CourtCalifornia Court of Appeals
Writing for the CourtHARRIS; MARTIN, Acting P.J., and FRANSON
Citation33 Cal.App.4th 1119,40 Cal.Rptr.2d 12
PartiesThe PEOPLE, Plaintiff and Respondent, v. Mark Steven GARCIA, Defendant and Appellant. In re Mark Steven GARCIA, On Habeas Corpus. & F020493.
Decision Date04 April 1995
Docket NumberNos. F019265

Page 12

40 Cal.Rptr.2d 12
33 Cal.App.4th 1119
The PEOPLE, Plaintiff and Respondent,
v.
Mark Steven GARCIA, Defendant and Appellant.
In re Mark Steven GARCIA, On Habeas Corpus.
Nos. F019265 & F020493.
Court of Appeal, Fifth District, California.
April 4, 1995.
Certified for Partial Publication. *

Page 13

[33 Cal.App.4th 1120] Michael J. McGinnis, Fresno, for appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Edgar A. Kerry and Robert P. Whitlock, Deputy Attys. Gen., for respondent.

33 Cal.App.4th 1121

OPINION

HARRIS, Associate Justice.

STATEMENT OF THE CASE

By amended information filed on October 21, 1992, defendant Mark Steven Garcia was charged as follows: rape by a foreign object and lewd act upon a child, Danielle M., on and between October 1, 1991 and December 13, 1991 (counts I and II; PEN.CODE, §§ 2891, subds. (a) through (j) and 288, subd. (a), respectively); lewd act upon a child, Sandra M., on and between August 23, 1988 and September 30, 1988 (amended at trial to have occurred on and between Aug. 23, 1987 and Sept. 30, 1987) (count III; § 288, subd. (a)); and three counts of lewd act upon a child, Vanessa M. (§ 288, subd. (a)), on and between July 1 and July 31, 1985 (count IV), August 1 and August 31, 1987 (count V), and September 1, 1985 and August 31, 1986 (count VI). The dates of count VI were amended during trial to on and between September 1, 1984 and August 31, 1985.

Defendant pled not guilty to all the charges, and jury trial was had. Defendant was convicted on all counts as charged.

Probation was denied, and defendant was sentenced to prison for a total term of eighteen years, as follows: the base term of six years on count I; a full, consecutive term of six years on count III; and three consecutive two-year terms (one-third the middle term of six years) on counts IV, V and VI. On count II defendant was sentenced to the mid term of six years, stayed pursuant to section 654.

Timely notice of appeal was filed.

In the unpublished portion of this opinion we will conclude that the trial court did not err in denying defendant's funding request for an investigator and expert, permitting introduction of expert child sexual abuse testimony, and belatedly giving CALJIC No. 2.80, nor did defendant receive ineffective assistance of trial counsel. In the published portion we hold that defendant's prosecution and conviction in counts IV and VI were not barred by the statute of limitations.

On October 26, 1993, a petition for writ of habeas corpus was lodged with this court (No. F020493). On January 4, 1994, this court ordered the petition consolidated with the instant appeal.

33 Cal.App.4th 1122

STATEMENT OF FACTS

Danielle M.

In December of 1991, Danielle M., who lived with her grandmother, Sue M., spent a

Page 14

Friday night at defendant's home. Sue and defendant's mother, Mary Lue Garcia, are twin sisters. Defendant had called and asked Sue if Danielle could visit defendant's two small sons. At the time, defendant lived in a duplex with his wife and two sons at 87 North "H" Street in Porterville. The other unit was occupied by defendant's mother, Mary Lue. Mary Lue operated a child care center in her home.

When Danielle arrived at defendant's duplex, she began playing television video games with defendant's sons, Matthew and Jacob. Defendant's wife, Shirley Garcia, was at work at that time.

While Danielle lay on her stomach watching Matthew and Jacob play video games, defendant sat next to Danielle. Danielle was wearing pants and a T-shirt. Defendant put his hand under Danielle's pants and underpants, and put his finger in her vagina two times.

Danielle told defendant to stop and she got up and went to the couch. She lay on the couch hoping defendant would stop touching her. However, defendant asked her to sleep on the waterbed in his bedroom. Danielle declined to go. She pretended she was asleep again, hoping defendant would leave her alone. Defendant then picked her up from the couch, carried her into the bedroom and put her on his waterbed.

Matthew, who was five years old at the time, was on the waterbed when defendant put Danielle on the bed. Defendant lay down next to her under the covers. Defendant again inserted his finger in Danielle's vagina, underneath the nightgown and underpants she was now wearing. After a while, defendant removed his finger and removed his shorts. He then put his penis on her leg. After a short time, defendant got up and took Matthew to a different room. Danielle got up, went to the bathroom and went to the couch where she went to sleep.

The incident on defendant's waterbed was disclosed when Danielle was playing "Truth or Dare" with two other girls at defendant's mother's child care center. Christina, one of the other girls, dared Danielle to tell the truth about something important that had happened to her. Danielle told Christina about the molestations. Christina then told Sandra M., Danielle's cousin, who that day was running the day care center.

33 Cal.App.4th 1123] Vanessa M

Vanessa M. had known defendant since she was a little girl. She was 13 years old at the time of trial. Vanessa's mother, Esther M., would often leave Vanessa at Mary Lue's child care center when Vanessa was small.

Vanessa was in kindergarten during the 1984-1985 school year. She recalled that her kindergarten pictures had been taken when she was about five or six years old. One day near the time her pictures were taken, she took the bus from school to Mary Lue's day care center at about 12:30 p.m. When she arrived, there were other children at the center, and defendant was also there.

As Vanessa was lying on the floor taking a nap at the center, defendant picked her up, took her to a bedroom and placed her on the bed. Vanessa could not recall whether she was awake or asleep when she was lying on the floor. Defendant removed Vanessa's dress, leotards and panties. He then rubbed her vagina and chest with his hands. Vanessa could not recall how long he rubbed her, but when he was finished, he redressed her and took her back to the couch. Vanessa did not tell anyone what had happened because she was afraid her father might kill defendant.

On another day in the summer of 1985, defendant took Vanessa, Sandy Ann M. and Joaquin M., defendant's niece and nephew, to Murray Park in Porterville for the day. They left in defendant's car at about 9:30 a.m. and returned that afternoon at about 5:30 or 6 p.m.

After playing at the park, they all went to McDonald's Restaurant to eat. Defendant then dropped Sandy Ann and Joaquin at their home. He took Vanessa to his house, but she could not remember what house that was. 2 She recalled being on defendant's bed

Page 15

and defendant removing her bottom clothes. Defendant then inserted his finger into her vagina, licking his finger afterwards, and then he licked her vagina. Later, defendant played with his penis until "white stuff" came out onto Vanessa's leg. After wiping her leg with a napkin, defendant helped Vanessa get dressed and took her home. Vanessa did not mention this incident to anyone because she was afraid.

Vanessa also recalled being touched in her vagina area by defendant once when she, her mother and her sister Melinda went to Mary Lue's house to show her some pictures. The photos were eighth grade pictures of Vanessa's brother, Ismael. Defendant followed Melinda and Vanessa into the kitchen [33 Cal.App.4th 1124] when they went to get a drink of water. Defendant told Melinda to leave and cornered Vanessa. He began to rub her vagina through her clothing. When defendant stopped, Vanessa went to the living room and sat next to her mother. She later told her mother defendant had touched her and she did not want him touching her anymore.

Sandy Ann M.

Sandy Ann M. is defendant's niece. Sandra M. is Sandy Ann's mother and defendant's sister. At the time of trial, Sandy Ann was 11 years old and in the sixth grade.

In August of 1988, Sandy Ann spent the night at defendant's home at 87 North "H" Street. Sandy Ann put on a nightgown that went down to her knees to get ready for bed. She lay down on the couch on her stomach with a blanket covering the bottom half of her body. As she read a book, defendant sat down next to her and slid his hand under the blanket, her nightgown and panties....

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6 practice notes
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...of a specific offense rather than during the commission of an offense for which the defendant is then convicted. See People v. Garcia, 33 Cal.App.4th 1119, 40 Cal.Rptr.2d 12, 17–18 (1995) (explaining that the plain meaning of "commit" is not "to be convicted of"); State v. Pixton, 2004 UT A......
  • People v. Smith, No. H020031.
    • United States
    • California Court of Appeals
    • May 1, 2002
    ...did in fact commit a violation of section 288, against the same victim within the six-year period. (See People v. Garcia (1995) 33 Cal.App.4th 1119, 1127, 40 Cal.Rptr.2d 12 ["It appears defendant is contending the use of the word `committed' in subdivision (f)(2) of section 803 means the de......
  • Costella v. Clark, No. C 08-1010 PJH
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 18, 2011
    ...to children who reported sexual crimes against them that occurred when they were under seventeen years of age. People v. Garcia, 33 Cal.App.4th 1119, 1127 (Cal. Ct. App. 1995). Section 803(f) provides in pertinent part: (1) Notwithstanding any other limitation of time described in this chap......
  • People v. Olecik, No. H010467
    • United States
    • California Court of Appeals
    • July 21, 1995
    ...convicting the defendant, to determine beyond a reasonable doubt whether the two offenses were committed? In People v. Garcia (1995) 33 Cal.App.4th 1119, 40 Cal.Rptr.2d 12, the court addressed a related issue. In Garcia, the defendant claimed that the word "committed" within section 803(f) ......
  • Request a trial to view additional results
6 cases
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...of a specific offense rather than during the commission of an offense for which the defendant is then convicted. See People v. Garcia, 33 Cal.App.4th 1119, 40 Cal.Rptr.2d 12, 17–18 (1995) (explaining that the plain meaning of "commit" is not "to be convicted of"); State v. Pixton, 2004 UT A......
  • People v. Smith, No. H020031.
    • United States
    • California Court of Appeals
    • May 1, 2002
    ...did in fact commit a violation of section 288, against the same victim within the six-year period. (See People v. Garcia (1995) 33 Cal.App.4th 1119, 1127, 40 Cal.Rptr.2d 12 ["It appears defendant is contending the use of the word `committed' in subdivision (f)(2) of section 803 means the de......
  • Costella v. Clark, No. C 08-1010 PJH
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 18, 2011
    ...to children who reported sexual crimes against them that occurred when they were under seventeen years of age. People v. Garcia, 33 Cal.App.4th 1119, 1127 (Cal. Ct. App. 1995). Section 803(f) provides in pertinent part: (1) Notwithstanding any other limitation of time described in this chap......
  • People v. Olecik, No. H010467
    • United States
    • California Court of Appeals
    • July 21, 1995
    ...convicting the defendant, to determine beyond a reasonable doubt whether the two offenses were committed? In People v. Garcia (1995) 33 Cal.App.4th 1119, 40 Cal.Rptr.2d 12, the court addressed a related issue. In Garcia, the defendant claimed that the word "committed" within section 803(f) ......
  • Request a trial to view additional results

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