IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 15, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DANNY AKEMON, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Robie ,j.
P. v. Akemon CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 toy described by the victim. Exhibit 10 was a page from that catalog, depicting a "Tight Squeeze Anal Sleeve."
Sergeant Lawrence spoke to the victim in person on August 7, 2007, and the victim said he had slept in defendant's bed, and they had orally copulated each other. The victim was "very scared, very reluctant to talk" and began to cry when he spoke about the oral copulation.
Defendant testified and denied any sexual contact with the victim. When the victim stayed at defendant's house in June 2007, defendant was 27 and worked as a correctional officer at Mule Creek State Prison. At one point during the visit, he caught the victim masturbating in the computer room, using the sex toy. Defendant laughed and asked the victim if he was having fun, which embarrassed the victim. After the first night of the visit, the weather became hot, and because defendant's bedroom was the only air-conditioned room, the victim slept in defendant's room, "on top of the bed, on top of the covers." Defendant admitted owning the sex toy described by the victim and depicted by the catalog. Defendant denied he was homosexual or bisexual or had any sexual interest in children. He admitted giving the victim butterscotch schnapps to taste, but denied giving him several shots of schnapps or flavored Smirnoff. He learned that the victim had sneaked some Smirnoff, and the victim told him he does it all the time, and defendant had seen the victim openly drinking a wine cooler at a family camping trip. The victim told defendant that he had been molested by his father. The only reason defendant could think of why the victim would make up a story about sex was that the victim became mad when defendant said he could not live with him, and the victim's mother made him live with his father. Defendant testified he did not have sex with Samantha R. because she did not want to have sex due to her pregnancy.
Alameda County Sheriff's Deputy Stefan Price, a longtime friend of defendant's, testified that the victim did not seem afraid of defendant and said he wanted to live with defendant. During the victim's visit with defendant, the victim became upset when his grandparents called and told him he had to come home and could not stay any longer.
In rebuttal, Samantha R. testified she had wanted to have sex with defendant but he did not want to.
Defendant contends the prosecutor committed misconduct by inviting the jury to stand in the shoes of the victim. This contention is forfeited for lack of objection in the trial court and in any event lacks merit.
During closing argument, the prosecutor argued the victim had no reason to exaggerate, and had testified that although he was drunk, he knew what he had been doing, and he had nothing to gain by making up his story. She then argued:
"When you go back there, I'd like you guys to do something. I'd like you to think about your last sexual experience, and after you've thought about your last sexual experience --presumably it was a positive one -- I'd like you to go around the room and share it with each other. You guys have had two to three days to get to know each other, so it shouldn't be a problem; right? You should be able to talk about who touched whom first, who took off whose clothing, and what was done, who did what. Right?
"Now think about a 16-year-old boy who has to come in and tell you that he had engaged in sexual relations with a 27-year-old man. And if any of you have any discomfort at the idea of sharing amongst yourselves your sexual relationships, I submit to you, magnify that by about a hundred and maybe you'll come close to how [the victim] felt.
"Go back to the instructions on credibility and believability. They will guide you. Think about why would he make this up. He had nothing to gain. He had everything to lose. He got shipped up to his dad's. He lost this buddy that he had, the cool guy with the toys at the house. And when you look at that and when you look at the law and you consider the evidence, I submit that you will find the defendant guilty on all counts, and that's exactly what you should do. Thank you."
The prosecutor's tone is not reflected by the reporter's transcript. However, the argument was inappropriate even if she was not seriously inviting jurors to share their sexual experiences but instead attempting to emphasize how difficult it would be for adults to discuss such matters with strangers, thereby emphasizing how much more difficult it would be for a child.
Counsel did not object to the above-quoted part of the prosecutor's argument. However, on appeal defendant contends it was an improper invitation to the jury to stand in the victim's shoes. The prosecutor also referred to the credibility instructions and invited the jury to "[t]hink about why would he make this up. He had nothing to gain. He had everything to lose. He got shipped up to his dad's. He lost this buddy that he had." Defense counsel emphasized inconsistencies in the evidence and argued the victim was lying.
Trial counsel's failure to object forfeits a contention of prosecutorial misconduct during argument. (People v. Thompson (2010) 49 Cal.4th 79, 120-121; People v. Martinez (2010) 47 Cal.4th 911, 963-964.) Defendant consequently argues incompetence of trial counsel for failure to object. (People v. Lopez (2008) 42 Cal.4th 960, 966.) For defendant to prevail, the record must show trial counsel acted below professional norms by not objecting, and there is a reasonable probability defendant would have obtained a better result had counsel objected. (Ibid.)
Trial counsel could rationally have refrained from objecting because although the argument was inappropriate, there was no prosecutorial misconduct.
"[O]rdinarily, 'a prosecutor may not invite the jury to view the case through the victim's eyes, because to do so appeals to the jury's sympathy for the victim.' [Citations.]" (People v. Lopez, supra, 42 Cal.4th at pp. 969-970.) The vice of such argument is that it invites jurors to exercise "subjective judgment rather than an impartial judgment predicated on the evidence" and "it in effect asks each juror to become a personal partisan advocate . . . rather than an unbiased and unprejudiced weigher of the evidence." (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 484-485; see People v. Vance (2010) 188 Cal.App.4th 1182, 1193, fn. 8.)
Defendant relies in part on the recent case of Vance. There, the prosecutor repeatedly argued over objections that the jury had to walk in a murder victim's shoes and "literally relive in your mind's eye and in your feelings" what the victim experienced. (People v. Vance, supra, 188 Cal.App.4th at pp. 1194-1195.)
Here, the prosecutor did not ask the jury to feel sympathy for the victim, or view the crimes through his eyes. The prosecutor argued that, in evaluating the victim's testimony, the jury should consider his age and the shame and embarrassment he described, to explain inconsistencies in his testimony. By inviting the jurors to consider how difficult it would be for them, as adults, to discuss sexual experiences with each other, the prosecutor was arguing it would be even harder for the victim to openly discuss his sexual experiences. This argument was tethered to the evidence and was a permissible argument regarding credibility. It was not an appeal to sympathy.
Appellate counsel also contends the prosecutor's argument was an invitation to the jury to conduct research. The cases cited in support of this claim involve jurors receiving evidence not produced at trial. (See People v. Karis (1988) 46 Cal.3d 612, 642-645 [reading a book]; People v. Castro (1986) 184 Cal.App.3d 849, 852-857 [performing experiment at home]; People v. Sutter (1982) 134 Cal.App.3d 806, 820 [visiting crime scene].) We do not agree the prosecutor's argument was a request to experiment but rather a crude attempt to urge the jurors to use common sense and experience in evaluating evidence.
Accordingly, because no prosecutorial misconduct occurred, trial counsel was not incompetent by failing to object.
Criminal Conviction Assessment
Pursuant to Government Code section 70373, the trial court imposed a $30 criminal conviction assessment on each count, for a total of $180. Defendant contends that because that statute was not in effect at the time he committed his crimes, it may not be applied to him.
We have repeatedly rejected this contention. (See People v. Castillo (2010) 182 Cal.App.4th 1410; People v. Fleury (2010) 182 Cal.App.4th 1486.)
The trial court awarded 93 days of actual custody credit and 47 days of conduct credit. Because defendant was ordered to register as a sex offender, he is not entitled to the benefit of a different conduct credit formula. (Former Pen. Code, § 4019, subds. (b) & (c), as amended by Stats. 2009, 3d. Ex. Sess., ch. 28, § 50, see Stats. 2010, ch. 426, [newer formula prospective]; Pen. Code, § 2933, subd. (e)(3), as amended by Stats. 2010, ch. 426, [one-for-one credit formula not applicable to sex registrants].)
The trial court improperly calculated defendant's credits under the prior formula, under which a defendant is entitled to two days of conduct credits for every four-day period of custody. (In re Marquez (2003) 30 Cal.4th 14, 25-26 [rounding up under prior formula not permitted].) Defendant served 23 four-day periods of custody, and is entitled to 46 days of conduct credit. We modify the judgment to correct the trial court's mathematical mistake. (Pen. Code, § 1260.)
The judgment is modified to award defendant 93 days of actual presentence credit and 46 days of conduct credit. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new abstract of judgment.
I concur: BUTZ ,J. RAYE , P.J.
I concur with the exception of part I of the Discussion in which I concur in the result.
© 1992-2010 VersusLaw Inc.