People v. Antunez CA2/6 ( 2024 )

Filed 10/11/24 P. v. Antunez CA2/6
Opinion after recalling remittitur
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B328194
(Super. Ct. No. NA118283)
Plaintiff and Respondent, (Los Angeles County)
v.
JOSUE ANTUNEZ,
Defendant and Appellant.
Josue Antunez was sentenced to state prison for 25 years to
life after a jury convicted him of violating Penal Code section 288,
subdivision (a),1 lewd act upon a child under the age of 14. The
jury also found true the allegations that he had substantial
sexual conduct with a victim who was under 14 years of age (§
1203.066, subd. (a)(8)), and that he personally inflicted bodily
harm on a victim who was under 14 years of age (§ 667.61, subd.
(d)(7)). He engaged in an act of sexual intercourse with the
1 All further statutory references are to the Penal Code.
victim, C.S. She became pregnant and miscarried. This formed
the basis for the bodily harm enhancement. The sentence was
selected by the Legislature as part of the “one strike law” dealing
with sexual offenders.
Appellant contends (1) there is no evidence of “force” being
used and it cannot be tied to the victim’s pregnancy and
miscarriage, (2) the prosecutor committed misconduct in arguing
to the jury and that defense counsel not objecting thereto, was
ineffective assistance of counsel, and (3) the 25-year-to-life
sentence is disproportionate to the crime and constitutes cruel
and unusual punishment. We reject these contentions and affirm
the judgment.
Factual Background
We view the evidence in the light most favorable to the
judgment as is required by the familiar rule governing appellate
review. When C.S. was twelve years old, she lived with her
mother, three siblings, and her uncle, appellant herein. When
mother went to work, appellant repeatedly had sexual
intercourse with C.S. Appellant admitted to the police that he
had sexual intercourse with C.S. but claimed this happened only
once. C.S. became pregnant and after three days of abdominal
pain, she miscarried, with the fetus being expelled into a toilet.
Forensic evidence established that appellant was the biological
sperm donor of the fetus.
Discussion
Appellant’s first contention is without merit. It is premised
upon his assertion that “there was no evidence of force, no
evidence of physical injury.” The premise is false. Appellant was
not charged with “forcible” child molestation pursuant to section
288, subdivision (b). This was a lewd act with a child
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accomplished by an act of sexual intercourse. It is obvious that
the injury suffered, i.e. pregnancy and miscarriage, was directly
caused by appellant. This is bodily injury as a matter of law.
(People v. Cross (2008) 45 Cal.4th 58, 66.)
Appellant’s second contention is also without merit. There
was no objection to the prosecutor’s argument. This is a waiver
and the contention need not be addressed on the merits. (E.g.,
People v. Powell (2018) 6 Cal.5th 136, 174.) We also observe that
the prosecutor is able to argue reasonable inferences from the
record. There was no misconduct and no unfairness depriving
the appellant of due process of law. Comment that there was no
evidence of C.S.’s prior sexual history and that she had no such
history is a fair inference from the evidence. Common sense
dictates that a twelve-year-old child has little or no sexual
history. Similarly, it is reasonable to comment on three days of
severe abdominal pain and her traumatic expulsion of the fetus
into a toilet.
Finally, the 25-year-to-life sentence does not constitute
cruel and/or unusual punishment pursuant to the California and
United States Constitutions. This offense and the resulting
miscarriage have scarred this victim for the rest of her life. The
Legislature has set this penalty within their broad discretion to
define crime and set punishments. This penalty is not “grossly
disproportionate” to appellant’s culpability. (See In re Lynch
(1972) 8 Cal.3d 410, 424; People v. Baker (2018) 20 Cal.App.5th
711, 722-734.)
Disposition
The judgment is affirmed.
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NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Daniel J. Lowenthal, Judge
Superior Court County of Los Angeles
_____________________________
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Chung L. Mar, Deputy Attorney General,
for Plaintiff and Respondent