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Filed 10/19/22 P. v. Sparks CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v. MARCUS DWAIN SPARKS, Defendant and Appellant. E078815 (Super.Ct.No. FVI20001990)
OPINION

APPEAL from the Superior Court of San Bernardino County. Shannon L. Faherty, Judge. Affirmed. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Defendant and appellant Marcus Dwain Sparks appeals from a final judgment following a jury trial

. For the reasons set forth post , we affirm th e judgment.2 STATEMENT OF THE CASE On December 21, 2021, an information charged defendant with oral copulation of
Doe1 and Doe2 (collectively, the v ictims ) , minors under 10 years of age, under Penal
Code 1 section 288.7, subdivision (b) (counts 1 and 2); and having intercourse with Doe1 under section 288.7, subdivision (a) (count 3). The information alleged that defendant committed all three counts between January 1, 2015, and May 1, 2020. On February 25, 2022, a jury found defendant guilty of counts 1 and 2. The jury, however, was unable to reach a unanimous verdict on count 3. On March 25, 2022, the trial court dismissed count 3 on the prosecut ion ’s motion. Thereafter, the court sentenced defendant to 15 years to life for each offense, to be served consecutively. The court also imposed fines and fees, and awarded credits. On April 11, 2022, defendant file d a timely notice of appeal.

FACTUAL AND PROCEDURAL H ISTORY
Doe1 was born July 2010 ; M.J. (Father) is her father and defendant’s daughter , C.S. (Mother), is her mother

. Doe2 was born October 2010 ; she is the cousin of Doe1
but “ has lived with the family for a long time” and c onsiders Doe1 as her sister. Mother
is her “mom , ” and Father is her “dad.”
In e arly July 2020, Doe1 told Mother that both F ather and defendant had molested
her. M other, assisted by law enforcement, made a pretext telephone call to defendant.

1 All further statutory references are to the Penal Code unless otherwise specified

.3

During the call, defendant told M other that the v ictims showed defendant what F ather
had done to them

. “By doin’ it,” and by “suckin’ and all that kinda stuff.” When law enforcement interviewed defendant, defendant stated that he had wanted to know exactly what F a ther had done to the v ictims so defendant took his penis out of his pants, held it in his hand, and told the v ictims to show him what Father did.
The v ictims obeyed. Defendant told the officers that Doe1 and Doe2 each had defendant’s penis in their mouth for one

- half of a second, or less. During the trial, Doe1 testified. She stated that when she was eight o r nine years
old she was in defendant’s apartment. Defendant asked her to go into his bedroom and once there, defendant asked Doe1 to show him what F ather had done to her

. Doe1
testified , “My grandpa said, [s]how me what [Father] did. So I did what [Father] told me
when he did it. . . . Suck his thing.” Doe1 stated that the “thing” was something that is
“used to go to the bathroom” to “pee.” She said defendant “sticked [the thing] out [ of ] his pants,” by unzipping his pants and pulling it out

. Doe1 then put “the thing” in her
mouth to show defendant what F ather had asked her to do. Doe1 stated that it made h er feel “uncomfortable.” She testified that she complied with defendant’s request because “he was my grandpa and I didn’t know. I didn’t know

— I didn’t know

— [¶]

. . . I didn’t
know that it was

— like, it was gross. I didn’t know, like, I wasn’t supposed to be doing
that.” Afterwards, Doe1 testified that “he put it inside my private area,” while they were
on the bed. She stated that defendant’s penis was inside her vagina “like for five minutes.
I’m not sure.” Doe 1 stated that the incident ended after “my sisters came and knocked on
the door.”4

Doe2 also testified. She stated that when she and defendant were in a room, she “already felt uncomfortable because, like, my siblings aren’t there, mom aren’t there. I ju st already felt uncomfortable. And also because I know he’s my grandpa and I know that he’s not supposed to be showing me, like, his private part.” Doe2 described a private
part as being “down between the legs,” and being used to go “pee.” Doe2 then tes tified that defendant told her to put her mouth on his private part. Although Doe2 did not know how long defendant’s private part was in her mouth, she testified that defendant’s private part actually went into her mouth. The incident ended when Doe1 ent ered the room.
Doe2 also stated that she “saw his private part in [ Doe1 ], too” when another sister opened
the door to defendant’s room

. Doe2 testified that she saw defendant’s private part in
Doe1 ’s “behind.”
Defendant testified on his own behalf. He s tated that he was worried that the

v ictims were being abused by F ather. Therefore, he wanted to find out from the v ictims
what F ather had done to them. The prosecutor asked: “[W]hat was your goal with exposing your penis to [ Doe1 ] and [ Doe2 ]? What did you think that would answer?” Defendant responded, “It was just like a bait, a trap. They went for it.” Defendant
denied that the v ictims put his penis in their mouths because he stopped them. He also denied that he ever placed his penis insid e either victim.
DISCUSSION After defendant appealed, and upon h is request, this court appointed counsel to represent him

. Counsel has filed a brief under the authority of People v

. Wende (1979)
25 Cal.3d 436 and Anders v

. California (1967) 386 U.S

. 738 setting forth a statement of5

the case, a summary of the facts, and potential arguable issues, and has requested this
court to undertake a review of the entire record

. Pursuant to Anders , counsel identified the following issue to assis t the court in its search of the record for error:
1. “Did the prosecutor commit misconduct by indicating to the jurors that they could properly have decided whether appellant was guilty before deliberations began?” We offered defendant an opportunity t o file a personal supplemental brief, and he
has not done so

. Pursuant to the mandate of People v

. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error

. We are satisfied that defendant’s attorney has fully complied with the responsibilities of counsel and no arguable issue
exists

. ( Id

. at p

. 126; People v. Wende , supra , 25 Cal.3d at pp

. 441

- 442.)
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER Acting P. J.

We concur:
SLOUGH J.
RAPHAEL J.