People v. Vargas, F008650

CourtCalifornia Court of Appeals
Writing for the CourtARDAIZ; The present case involves various incidents of sexual molestation committed by defendant against his stepdaughter; As previously set forth; WOOLPERT; SARKISIAN
Citation206 Cal.App.3d 831,253 Cal.Rptr. 894
PartiesThe PEOPLE, Plaintiff and Respondent, v. Manuel VARGAS, Defendant and Appellant.
Docket NumberNo. F008650,F008650
Decision Date16 December 1988

Page 894

253 Cal.Rptr. 894
206 Cal.App.3d 831
The PEOPLE, Plaintiff and Respondent,
Manuel VARGAS, Defendant and Appellant.
No. F008650.
Court of Appeal, Fifth District, California.
Dec. 16, 1988.
Certified for Partial Publication *
Review Denied April 5, 1989.

[206 Cal.App.3d 833] Harvey R. Zall, State Public Defender, under appointment by the Court of Appeal, Monica Knox, Acting State Public Defender, Sandra Gillies and Alberto Y. Balingit,

Page 895

Deputy State Public Defenders, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Maureen Daly and Robert C. Miller, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


ARDAIZ, Associate Justice.


An information was filed on December 30, 1986, charging defendant, Manuel Vargas, with 10 counts of lewd and lascivious conduct (Pen.Code, [206 Cal.App.3d 834] § 288, subd. (b)) on his stepdaughter, J. The ten counts consisted of one count for each month of 1986 from January through October. Defendant was tried on April 6 and 7, 1987. His motion for judgment of acquittal pursuant to Penal Code section 1118.1 was denied, and the jury found defendant guilty of each count. The jury further found defendant occupied a position of special trust with J., pursuant to Penal Code section 1203.066, subdivision (a(9), as to each count.

The trial court imposed the midterm of six years for each count for a total sentence of sixty years. A timely notice of appeal followed.


The present case involves various incidents of sexual molestation committed by defendant against his stepdaughter, J. J. was 12 to 13 years old when the acts occurred. J. testified she was seven years old the first time defendant had sexual intercourse with her. She testified she was frightened and attempted to push defendant off of her. She also screamed, but defendant put a handkerchief in her mouth. Defendant told her not to tell anyone and threatened to hurt her mother.

In January of 1986, J. lived in an apartment on Strivens in Modesto with defendant, her mother, her sister and a brother. When asked what happened with her stepfather in January of 1986, J. stated he had had sexual intercourse with her. The following discussion occurred as to J.'s knowledge of the meaning of intercourse.

"Q. Do you understand what intercourse is?

"A. Yes.

"Q. What is intercourse?

"A. Sexual intercourse is when we go inside each other.

"Q. You mean when he puts his penis inside your vagina. Is that what you mean to say?

"A. Yes.

"Q. Did you know all about that in January of 1986?

"A. Yes."

J. testified that the acts of intercourse occurred in defendant's room, her room and the bathroom. On cross-examination, several acts of intercourse [206 Cal.App.3d 835] during January 1986 were related. One act occurred within one week of New Year's Day. The act occurred in her room during the nighttime while her mother was asleep.

A second act in January 1986 also occurred in her bedroom "two nights after the first time." A third act took place in the bathroom, and although she could not recall if it took place during the daytime or nighttime, J. thought "it was in the early morning." J.'s testimony as to this act was as follows:

".... It was in the morning, I think, because he would get me up early to go in the bathroom and trim his their [sic ]. He said he was going to go for a job interview, or something.

"Q. So in January of 1986 he came to you in your room early in the morning?

"A. Uh-huh.

"Q. And he said, 'I have got a job interview, and I want you to cut my hair with the scissors'?

"A. With a hair trimmer, electric machine.

"Q. Okay. With a hair trimmer. Is that right?

"A. Yes.

Page 896

"Q. And nobody--Everybody else in the house was sleeping at that time?

"A. Yes.

"Q. And then what happened?

"A. We had sexual intercourse. That is it.

"Q. Did you walk into the bathroom?

"A. Yes.

"Q. Was he holding onto you when you went into the bathroom?

"A. No.

"Q. What happened when you got into the bathroom?

[206 Cal.App.3d 836] "A. I would be trimming his hair, and then he would start feeling me and stuff, and then it would happen.

"Q. So you went into the bathroom, and you turned on the electric clippers?

"A. (affirmative nodding of head)

"Q. Is that right?

"A. Uh-huh.

"Q. And you started to clip his hair?

"A. Uh-huh.

"Q. Is that right?

"A. Yes.

"Q. And while you were chipping hair hair [sic ] he started feeling your body. Is that right?

"A. Yes.

"Q. And then what happened?

"A. I don't understand.

"Q. Well, did you have clothes on?

"A. No.

"Q. You mean when you went into the bathroom to trim his hair in January--

"A. I had clothes on, but after we got in there he took them off.

"Q. Well, when you started to trim his hair did you have clothes on?

"A. Yes.

"Q. What clothes did you have on?

[206 Cal.App.3d 837] "A. My pajamas.

"Q. What was he wearing?

"A. His boxer shorts.

"Q. And when he started to feel your body did he take your clothes off?

"A. He would stick his hands under my clothes.

"Q. Okay. And then what happened?

"A. Then he would take them off me.

"Q. Okay. And so he would take off--Were you wearing two-piece pajamas or were you wearing a nightgown?

"A. A nightgown.

"Q. The nightgown came off the top. Is that right?

"A. Uh-huh.

"Q. Did you shut off the clippers?

"A. No. I just kept on trying to trim his hair.

"Q. Okay. And he is taking your nightgown off and you are trying to trim his hair at the same time?

"A. Yes.

"Q. Didn't that become difficult with the nightgown up in the hair [sic ] and the clippers?

"A. Yes.

"Q. And was he standing in front of you or was he facing you or was his back to you, or what?

"A. He was facing me.

"Q. What were you clipping with the clippers in the front of his head?

[206 Cal.App.3d 838] "A. He turned around.

"Q. Okay. You had been clipping the back of his head. Is that right?

"A. Yes.

"Q. And you say he had been feeling your body?

"A. He turned around after, when I was trimming his hair, and then he was feeling my body.

"Q. Okay. So that at the point that he started feeling your body you stopped cutting his hair. Is that right?

"A. Yes.

"Q. Did you turn the clippers off?

"A. No.

Page 897

"Q. You kept the clippers going in your hand?

"A. Yes.

"Q. So you weren't clipping any hair?

"A. No.

"Q. You are standing there with the clippers going and he's feeling your body and then he takes off your pajamas?

"A. Yes.

"Q. Do you--When your pajamas get off, do you shut off the clippers then?

"A. No.

"Q. You are standing there without your nightgown on with the clippers in your hand. Is that right?

"A. Yes.

"Q. And then what happened?

[206 Cal.App.3d 839] "A. And then he took the clippers out of my hand and set them down on the toilet, and then he took off my underwear and stuff.

"Q. Did he shut the clippers off?

"A. Yes.

"Q. And then he set them down on the toilet seat?

"A. Yes.

"Q. Did you put the lid on the toilet seat before he put them down or did he just put them down on the toilet seat?

"A. Put the lid down before he put them on there.

"Q. Okay. And then, and then what happened?

"A. And then he had sexual intercourse with me.

"Q. Did he have sexual intercourse with you standing up?

"A. No. I was bending over.

"Q. How were you bending over?

"A. How else do you bend over?

"Q. Well, would you tell us how you were positioned when he was having sexual intercourse with you in the bathroom?

"A. Like you stretch, when you stand up and you bend over and stretch.

"Q. All right. You bent at your stomach?

"A. Yes.

"Q. And was he--Was he standing in front of you?

"A. No. In back of me.

"Q. He was standing in back of you. Was he holding you in any way?

"A. From my waist.

[206 Cal.App.3d 840] "Q. So you were standing on your feet at that time?

"A. Yes.

"Q. And he was penetrating you from the rear?

"A. Yes.

"Q. And that was how you had sexual intercourse in the bathroom?

"A. Yes.

"Q. And how long did that take?

"A. About ten minutes.

"Q. And when he did that he ejaculated inside of you?

"A. Yes.

"Q. And when you exited the bathroom did you exit the bathroom, the two of you, at the same time?

"A. No.

"Q. Who exited the bathroom first?

"A. I did.

"Q. And he remained in the bathroom or did he come out right after you?

"A. He remained in the bathroom for a minute.

"Q. Was it light outside?

"A. It was just getting light, yeah."

J. testified that only one act of intercourse occurred in the bathroom in January. She testified every time she trimmed defendant's hair in the bathroom, he had sexual intercourse with her. She further testified that acts of intercourse occurring in the bathroom always occurred in the morning under the pretext of cutting defendant's hair.

[206 Cal.App.3d 841] J. testified that in February of 1986 defendant did "the same thing over and over." She testified defendant only had

Page 898

intercourse with her once in the bathroom in February. J. could not remember where her mother was during all of the February incidents, but stated they occurred sometimes while her mother was in the shower.

Defendant continued to have sexual intercourse with J. in March of 1986. She testified defendant would have intercourse with her while her mother was in the shower, shopping or visiting J.'s grandmother. J. testified defendant had sex with her on his bed while her mother was in the shower. She estimated the act of intercourse lasted about 10 minutes.

J. testified defendant had sex with her in June of 1986. One of the acts took place in the bathroom after trimming defendant's hair. By June, however, the family moved into a house with friends down the street. The sexual act continued to occur there, similarly, in defendant's room, J.'s room and the bathroom.

J. further testified defendant had sexual intercourse with her in April, May, July, August, September, and October of 1986....

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