1 Filed 6/19/13 P. v. Atilano 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. ANTONIO ESTRADA ATILANO, Defendant and Appellant. E056693 (Super.Ct.No. FVA1001107)
OPINION

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed. Reed Webb, under appointment by th e Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.2 INTRODUCTION On July 20, 2010, a felo ny complaint charged defendant and appellant Antonio Estrada Atilano with oral copulation of an unconscious person in violation of Penal
Code 1 section 288a, subdivision (f) (count 1). On May 9, 2012, a jury fo und defendant guilty of attemp ted oral copulation of an unconscious person in viola tion of sections 664 and 288 a, subdivision (f), a lesser included offense as to count 1. On July 6, 2012, th e trial court sentenced defendant to serve the midterm of three years in state prison. The trial court aw arded defendant credit for time served, and imposed various fines and fees. The court al so advised defendant th at he had a lifetime obligation to register as a se x offender under section 290. On July 12, 2012, defendant filed a timely notice of appeal. STATEMENT OF FACTS On May 19, 2010, a 30-year-old woman, Jane Doe, went to the Fontana Police Department. She reported that nine years earlier, defendant, who was Doe’s father, had sexually molested her while she was sleeping in her parents’ house. Doe stated, “I thought that I was having sex with my boyfriend in my dream.” She woke up and discovered that defendant was or ally copulating her. She testified, “I felt his tongue at my private.” She could feel his tongue moving around in her vaginal

1 All further statutory references are to the Penal Code unless otherwise indicated.3 opening. Doe reacted by yelli ng, “No,” and crawling into a fetal position to get away from him. Defendant stated that he was so rry and that Doe provok ed him. He then walked out of the room. Doe took her four-year-old son, who had been sleeping in the room with her, and ran into another bedroom where she could lock the door and call her mo ther. She told her mother what had happened and then shortly after, repeated th e account to her older sister. According to Doe, neither of them believed Do e. She testified that she did not report the incident to the police because “I didn’t think that anybody would believe me.” In 1992, prior to this incident, defenda nt pulled back a shower curtain and looked at Doe when she was naked. Police investig ated the incident but only spoke to Doe’s parents and not to Doe, who wa s 12 years old at the time. After the incident in 2001, Doe cut off all connections with her family for about five years. In 2006, she becam e a police officer in Riverside. She tried to reestablish her family ties, but told defendant that the onl y way for them to get along was for him to admit to the police what he had done to her. After Doe spoke with Fontana police o fficer Brad Guith on May 19, 2010, Guith interviewed defendant at his home. Defendant denied molesting his daughter. He stated that he had only covered her wi th a blanket and gave her a ki ss on her forehead. On June 30, 2010, however, defendant came into the police department and spoke with Officer Guith again. In an audio-vide o recorded interview, defendant stated that his daughter had told him to tell the truth if he wanted to reestablish a fam ily relationship between them.4 Defendant then told the officer that he had found his daugh ter asleep in a bedroom and that her legs were uncovered. He kissed he r on the mouth, and Doe had returned the kiss and hugged him. Defendant thought that Doe was awake at the time. Defendant continued and stated: “And th en I petting her and then I ( unintelligible) over her vagina and um nothing happened. Then I pulled he r underwear’s, she was wearing underwear and I tried to pull it back and trying to kiss her vagina.” Defendant stated that he was sure at th is point that Doe was awake. Doe asked him what he was doing. He stated that he wa s sorry. She told him to “[g]et out!” and he left. Officer Guith asked defendant if he ha d touched Doe’s vagina with his hands. He answered, “No. Honestly I don’t remember. What I remember (unintelligible) my face because I remember the smell. I don’t fo rget that. I don’t remember exactly what happened. And, I’m being honest with you. That’s what I remember.” Officer Guith then asked defendant, “[W] hat were you thinking? What was going through your mind?” Defendant replied, “Just have sex with her because (unintelligible) my mind.” Defendant did not testify at trial. He did not call a ny witnesses or introduce any evidence.5 ANALYSIS After defendant appealed, and upon his re quest, this court appointed counsel to represent him. Counsel has file d a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, se tting forth a statement of the case, a summary of the fact s and potential arguable issues, and requesting this court to undertake a review of the entire record. We offered defendant an op portunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal. 4th 106, we have conducted an independent review of the record and find no arguable issues. DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J.
We concur:

RAMIREZ P. J.

CODRINGTON J.