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The People v. Chad andrew Larsen

December 8, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHAD ANDREW LARSEN, DEFENDANT AND APPELLANT.



(Humboldt County Super. Ct No. CR081044S)

The opinion of the court was delivered by: Marchiano, P.J.

P. v. Larsen CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Chad Andrew Larsen of violating Penal Code sections 288a, subdivision (b)(1) and 261.5, subdivision (c), involving a 16-year-old girl. On appeal, he contends the trial court erred in granting a motion by the prosecution to admit statements he made to a Humboldt County deputy sheriff, arguing they were made during a custodial interrogation without the Miranda admonition.*fn1 He also raises two claims of instructional error. As discussed below, we conclude there was no prejudicial error and affirm.

BACKGROUND

On January 16, 2008, 16-year-old Jane Doe, a resident of Eureka, went to the Humboldt County Sheriff's Department with complaints about a sexual assault. Deputy Sheriff Cheryl Franco began investigating the matter by interviewing the victim. Jane Doe reported she and defendant had been friends for about two years. On the evening of January 12, she telephoned defendant and asked him to give her a ride to Arcata to visit a friend. He did so, but her friend was not at home. Defendant then offered Jane Doe some pills containing oxycodone. Defendant then said "in a joking way" that if Jane Doe told anyone about "what happens tonight I'll kill you and your whole family." Jane Doe thought this was a "strange thing to say."

Jane Doe told defendant she wanted to do some cocaine. When defendant replied, "What do you have that I want?" Jane Doe replied, "I'm not going to have sex with you!" The two drove to defendant's home in Fortuna, where he retrieved more oxycodone. At the Bayside Grange, he ground up a tablet of oxycodone and told Jane Doe to snort it. He then told her to orally copulate him, pushing her head down. Afterwards, they went to the parking lot of Murphy's Market, where he traded oxycodone for a gram of cocaine, and gave three lines to Jane Doe to snort. As defendant "never did any drugs," the rest of the cocaine was left in the bag, apparently for Jane Doe, who later came to feel defendant had given her all the drugs "so he could take advantage of her."

Defendant then drove to the Samoa Dunes area. Jane Doe reported she was "very intoxicated" by this time, and would "do anything when she's really high." Defendant told Jane Doe to take off her clothes and assume one, then another position, and had sexual intercourse with her.

Jane Doe explained the delay between the alleged rape on January 12 and the time she reported it to the sheriff's department on January 16 was in part because she "felt like [defendant] would hurt her or her family."

The district attorney filed a two-count information on March 6, 2008, charging defendant with felony violations of Penal Code section 261.5, subdivision (c)*fn2 (unlawful sexual intercourse by a person with a minor more than three years younger), and section 288a, subdivision (b)(1) (oral copulation by a person with a person under the age of 18 years).

At the conclusion of defendant's trial, on April 9, 2009, the jury found defendant guilty on both counts. The trial court, on September 22, 2009, conducted its sentencing hearing, after which it denied probation and sentenced defendant to a prison term. The consecutive terms on both counts totaled three years eight months, with a total credit of 918 days (two years and 188 days).

This appeal followed. (§ 1237, subd. (a).)

DISCUSSION

A. Custodial ...


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