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People v. Small12/30/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
After trial a jury convicted defendant Johnny Small of eight sexual crimes against the same minor victim, his girlfriend's daughter, who is more than 10 years younger than defendant. Six crimes occurred when she was under the age of 14, namely two counts of aggravated sexual assault (Pen. Code, § 269), one involving forcible rape (count 1), the other involving forcible oral copulation (count 2), and four counts of lewd touching (counts 3, 4, 5, 6; § 288, subd. (a)). Two crimes occurred when she was 14, oral copulation (count 7, § 288a, subd. (b)(2)) and lewd touching (count 8; § 288, subd. (c)(1)). The jury found not true that defendant inflicted great bodily injury in connection with count 3. The original count 8, sexual penetration (§ 289, subd. (i)), was dismissed at trial and count 9 was renumbered to count 8. In the jury's absence defendant admitted a prior conviction of the serious felony of assault with a firearm in exchange for the dismissal of two other alleged prior convictions.
After the trial court denied defendant's motion for a new trial, the court sentenced defendant to prison for life as follows: 30 years to life on count 1 (§ 269) with 30 consecutive years to life on count 2 (§ 269), all consecutive to a determinate term of 18 years and eight months, consisting of the midterm of 12 years on count 3 (§ 288, subd. (a)), a consecutive four years on count 6 (§ 288, subd. (a)), one-third the midterm, and 16 consecutive months each on counts 7 (§ 288a, subd. (b)(2)) and 8 (§ 288, subd. (c)(1)). All terms were doubled due to defendant's prior strike. (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1).) The court stayed sentences on counts 4 and 5 pursuant to section 654.
On appeal defendant contends that the trial court committed several instructional omissions. The court should have defined "force" and "forcible" and should have given several instructions regarding lesser included offenses. For the reasons stated below, we will affirm the judgment.
Trial evidence
When 14-year-old P. turned out to be pregnant in June 2001, she gave two accounts of the person who impregnated her. First she told her mother Monica and the police that a 15-year-old boy named Steven Johnson was the father. Then, when Steven could not be located, she told the police that it was defendant, Monica's boyfriend. A week later P. recanted this identification. At trial in February 2002, P. identified Steven as the father. Defendant did not testify at trial. The evidence against defendant included his own admissions to the police and a tape-recorded telephone conversation between defendant and P.
Carl Lewis, an expert, testified about the child sexual abuse accommodation syndrome. He explained that sexually abused children often exhibit several types of behavior. The crime occurs in secrecy and isolation. The offender reinforces the secrecy by warning of adverse consequences. Children are helpless to resist the advances of an adult on whom they depend. They may have an emotional relationship with the offender. Children feel entrapped and learn to accommodate the situation, sometimes by detaching themselves mentally or pretending to be asleep. Disclosure is often delayed. Retraction may follow disclosure when there are adverse consequences, such as the reaction of adults, the arrest of the offender, or protective custody for
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