The opinion of the court was delivered by: Robie ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 08CR13630)
A jury found defendant Danny Akemon guilty of six counts arising out of his sexual conduct with a 14-year-old boy: contributing to the delinquency of a minor, lewd act on a child more than 10 years younger (two counts), oral copulation of a child under the age of 16 (two counts), and attempted sodomy of a child under the age of 16. The trial court sentenced defendant to two years in state prison. Defendant timely appealed.
Defendant contends the prosecutor committed misconduct by inviting the jury to stand in the shoes of his victim, and the trial court improperly imposed a monetary assessment authorized after he committed his crimes. We reject these claims and modify defendant's conduct credit award.
The victim was born in January 1993. His uncle worked with defendant, with whom the victim became friendly. In the summer of 2007, the victim stayed at defendant's house for a few days. On the second night, after defendant gave the victim several shots of flavored "Smirnoff" and butterscotch schnapps, making the victim "woozy" and "dizzy," the victim saw defendant was watching pornography on a computer, and defendant invited the victim to join him. Defendant then obtained a "pocket pussy" sex toy, applied lubricant to the victim's penis, and held the toy on the victim as defendant masturbated himself, then cleaned the victim after the victim ejaculated. In defendant's bedroom, the victim reciprocated that act on defendant. The next day, defendant sucked on the victim's penis. Defendant tried to sodomize the victim, but when the victim felt defendant's penis touch his "butt," the victim demurred. The victim identified a picture of a "pocket pussy" "identical" to defendant's.
On cross-examination, two questions suggested there had been two acts of oral sex. On redirect, the victim testified he was "Pretty sure" there had been one act of oral sex the first night and another the next morning. He testified "I never did it to him. It was him on me."
About two weeks later, the victim told his cousin, Samantha R., about what happened but did not tell her everything because he was still ashamed and embarrassed. Samantha R. was defendant's girlfriend. About a month after he told Samantha R., the victim's uncle called and asked if "stuff" happened, and the victim said yes, but he "did not go into detail." The victim was "freaking out" and did not want defendant to get into trouble. The victim then spoke with his parents but did not want to talk about what had happened. He spoke with a peace officer on the telephone and "told him what had taken place, but probably not every detail" because he was still embarrassed, and then spoke with Sergeant Mark Lawrence on the telephone, but again did not reveal everything that happened. When he spoke with Sergeant Lawrence in person, he gave more details. However, at one point he denied to Sergeant Lawrence that there had been any oral sex.
Samantha R. testified that she was pregnant during her relationship with defendant in 2007 but they did not have sex. After the victim had stayed at defendant's house, the victim called her and said "that him and Danny had played with a pocket pussy and they had looked at porno on the computer." She called defendant and asked about this, and defendant told her he "walked in on" the victim, who was playing with a "pocket pussy," "and he had sat next to [the victim] and watched him play with it and that he had mentioned that there was alcohol and that [the victim] had been drinking." The victim called Samantha R. back and told her defendant had lied about what had happened, but she did not believe that defendant was lying. These calls were within about two hours, "one right after the other."
Sometime later, after she had spoken to the authorities, Samantha R. asked the victim if he had had sex with defendant, and the victim said he had, "that Danny had tried to have anal sex with him but it hurt and Danny stopped."
Sergeant Lawrence testified he spoke with the victim on the telephone on July 24, 2007, and after the victim described sexual contact with defendant, Sergeant Lawrence obtained a warrant and searched defendant's house on August 1, 2007. Peace officers found paper in a shredder that they reconstructed to reveal the cover of an adult products catalog. They ordered the catalog, and it offered products consistent with the sex ...