People v. Guzman, 011019 CAAPP1, A150834

Docket Nº:A150834
Opinion Judge:JONES, P.J.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. LAZARO B. GUZMAN, Defendant and Appellant.
Judge Panel:We concur: Needham, J., Bruiniers, J.
Case Date:January 10, 2019
Court:California Court of Appeals
 
FREE EXCERPT

THE PEOPLE, Plaintiff and Respondent,

v.

LAZARO B. GUZMAN, Defendant and Appellant.

A150834

California Court of Appeals, First District, Fifth Division

January 10, 2019

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. C-176702

JONES, P.J.

A jury convicted Lazaro B. Guzman of 11 sexual offenses against two children, C. Doe (C.) and M. Doe (M.) and found several enhancement allegations true. The trial court sentenced Guzman to 75 years to life in state prison. Guzman appeals. He challenges the consolidation of the charges and raises claims of evidentiary and instructional error. We strike the jury's finding regarding the use of obscene material in the commission of count 6 (Pen. Code, § 1203.066, subd. (a)(9))1 and the jury's multiple victim finding in count 9 (§ 667.61, subd. (e)). In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

An amended consolidated information charged Guzman with 11 felonies, seven against C. and four against M. As to C., the prosecution charged Guzman with six counts of committing a lewd or lascivious act upon a child under age 14 (§ 288, subd. (a), counts 1 through 6). On count 6, the information alleged Guzman used obscene material in the commission of the lewd act (§ 1203.066, subd. (a)(9)). Count 7 charged Guzman with aggravated sexual assault of a child under age 14 (§ 269, subd. (a)(4)). As to M., the prosecution charged Guzman with three counts of committing a lewd or lascivious act upon a child under age 14 (§ 288, subd. (a), counts 8, 10, 11). Count 9 charged Guzman with continuous sexual abuse of M., a child under age 14 (§ 288.5, subd. (a)).

Overview of Trial Testimony

We provide an overview of the trial testimony, reciting the evidence in the light most favorable to the judgment.

A. Sexual Abuse of C. Doe

Guzman and C.'s mother are cousins. C. referred to Guzman as his “cool uncle” and “looked up to him.” In 2004 or 2005, C.'s mother was hosting a party at her apartment. Guzman was at the party. C.-then five or six years old-was asleep in his mother's bed, wearing pajamas. C. woke up because Guzman was “grabbing [his] butt.” Guzman kissed C., putting his tongue inside C.'s mouth. Guzman pulled down C.'s pajamas and put his hands on C.'s buttocks. Then Guzman put his penis in C.'s butt and began moving “back and forth.” It was painful. C. went to the bathroom. Guzman followed, shutting and locking the door behind him. Guzman put his penis in C.'s “butt, ” moving “back and forth.” C. went back to the bed. Guzman followed him, and put his penis in C.'s “butt” a third time. Eventually, C. fell asleep. Guzman repeatedly told C. not to tell anyone what happened because he would “go to jail.”

Another time, C.'s mother dropped C. off at Guzman's house and left to run errands. Guzman showed C. a pornographic video. He pulled down C.'s pants and “forced” his penis into C.'s butt and moved “back and forth.” C. asked Guzman to stop because it hurt; Guzman said he “ ‘was almost done.' ” Guzman got up and went into the bathroom.

When C. was about eight years old, C.'s mother invited Guzman over for a pumpkin carving contest. That evening, when Guzman and C. were alone together, Guzman pulled down his own pants, grabbed the back of C.'s head, and put his penis in C.'s mouth. C. tried, unsuccessfully, “to push away from” Guzman. Guzman stopped when he heard C.'s mother return. Guzman told C. not to tell his mother what happened.

Later, C. and Guzman were at a relative's house for a birthday celebration. Guzman told C. to go into a different room so C. could orally copulate him. C. knew Guzman's request “wasn't right, ” so he refused. After the incident, C. left the room whenever he found himself alone with Guzman. C. “didn't want anything to happen.”

When C. was 15, he attended a vocational training program where he was “going to have to sleep in a room” with men he “didn't... know.” C. was worried and uncomfortable. On the first day of the program, an instructor thought C. was wearing his pants too low, so the instructor pulled up C.'s pants. C. became so upset that he called his mother and left the program. The next day, C.'s mother told him he would have to return to the program. In response, C. told his mother what Guzman had done. C. could not “keep it in anymore.” He was sad, and angry at himself because he felt the abuse was his fault. C. did not feel comfortable talking about it. C.'s mother noticed a change in C.'s personality starting in first grade, which coincided with the abuse. C., who had been happy and outgoing, became withdrawn.

B. Sexual Abuse of M.

Guzman is M.'s cousin. In 2004, M. was 10 years old and Guzman was 21. Guzman kissed M. and asked her if she wanted to be his girlfriend. She agreed. Guzman told M. to keep their relationship “a secret because people wouldn't understand.” M. kept quiet because she knew their relationship was “not something the law permit[ted]” and she did not want Guzman “to go to jail.”

In the summer of 2004, M. and her brother attended a sleepover at Guzman's sister's apartment. Guzman was there; he watched a movie with M. and her brother. After M.'s brother fell asleep, Guzman led M. into a bedroom and asked her to have sex with him. M. reluctantly agreed and they had sex. It felt uncomfortable and she asked Guzman to stop. He replied, “ ‘I'm almost done.' ” When Guzman finished, he got dressed and said his sister's husband was almost home. Then he left the apartment.

Before her 11th birthday, Guzman told M. he had a birthday gift for her. Guzman took M. to the boiler room of his sister's apartment building and locked the door. He gave M. a pendant and told her to turn around so he could put it on. Then he told M. to get on her knees. Guzman pulled down her pants. M. was nervous because she thought they “were going to have sex again.” Guzman inserted his penis into M.'s anus. Then they got dressed and left the boiler room.

Guzman and M. attended a family gathering in December 2004. Guzman told M. to go into one of the bedrooms later in the evening, when “everybody else was more drunk.” M. complied. Guzman-who was outside- met M. at the bedroom window. As M. sat on the window ledge, Guzman digitally penetrated M.'s vagina and kissed her until someone opened the bedroom door.

In May 2005, M. and her brothers were at their apartment. M. was in the living room; her brothers were in their bedroom. Shortly after M.'s father left, Guzman arrived. He kissed M. and they had intercourse on the living room floor. Then they had anal sex. M. believed she was in love with Guzman and that they “were in a real relationship.” During the summer of 2005, M. and Guzman had sex numerous times, often at her apartment, while her parents were at work. M. hid her actions from her family.

Guzman repeatedly asked M. to let him spend the night at her family's apartment. M. had previously agreed, but had never followed through because she “was scared about getting caught.” In October 2005, M. let Guzman into her family's apartment through a side door and hid him in the closet. While her family slept, M. and Guzman had sex. M. was nervous because “it was very risky.” The plan was for Guzman to sneak out before her family woke up, but M. and Guzman overslept. Guzman hid in the closet, waiting for M.'s family to leave. M.'s mother opened the closet “to get some shoes, ” saw Guzman, and “started yelling, asking why he was here.” M.'s father came into the room. He was “very mad.” He punched and kicked Guzman. Other family members arrived and everyone “started arguing [about] why [Guzman] was there.” M. lied and told her family that Guzman had arrived at the apartment, drunk, and that she had hidden him in the closet.

Eventually, Guzman left the apartment. He disappeared from M.'s life for several months. M. learned that Guzman “was going to be kicked out of [his] house and he was going to turn himself in.” Around this time, Guzman told C.'s mother that he had been in a physical altercation with M.'s father, and that he was “in trouble” because he had sex with M. and her family “knew what was going on.”

In mid-2006, Guzman returned to Oakland. In June, M.-who was 12...

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