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The People v. Henry James Fluker

January 7, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HENRY JAMES FLUKER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 08-5714)

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

P. v. Fluker

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant of five sexual offenses against the victim, a girl aged 17 with the mental age of between 9 and 12, and defendant admitted service of a prior prison term. (Pen. Code, §§ 261.5, subd. (c) (three counts); 288a, subd. (b)(1) (two counts); 667.5, subd. (b).) The trial court sentenced defendant to prison for five years eight months. Defendant timely filed this appeal.

On appeal, defendant contends the trial court mishandled its review of the victim's juvenile court records, misinstructed the jury on the need to agree unanimously as to two counts, and failed to award the correct amount of presentence credits.

We shall modify the judgment to award defendant additional presentence credits, but otherwise affirm.

BACKGROUND

Defendant was charged with 10 sex crimes committed against the same victim, and it was alleged he had served a prior prison term. Prior to jury selection, defendant admitted the prior prison term allegation. After the first jury deadlocked and a mistrial was declared, the People filed an amended information that dismissed charges of sexual abuse of a mentally incapacitated person.

Before the second jury heard any evidence, defendant again admitted the prior prison term.

Leslie Scott, a social worker, testified that she met the victim in May 2008, and removed the victim from her mother's home in August 2008. The victim had mild mental retardation and had a mental age of between 9 and 12 years. From early June to the end of July 2008, the victim was a runaway. When Scott picked the victim up from a receiving home in late July 2008, the victim told Scott she had been with defendant, her boyfriend, living a transient lifestyle by the river.

In October 2008, the victim ran away from her foster placement. In mid-October 2008, Scott received a call reporting the victim's location, and that the victim was with defendant, but by the time the police arrived, defendant had left. The victim told Scott that after leaving the foster placement, she and defendant lived in an abandoned house and had sex "at least" every other night.

A peace officer testified that on July 30, 2008, she found defendant in the victim's company, and defendant told the officer the victim was 17.

The victim testified she turned 18 a couple of weeks before trial, and was born in 1991. She met defendant near the Greyhound bus station in Sacramento when she asked him for a cigarette and he asked how old she was. She saw him another day and he gave her his phone number. She called him another day and arranged to meet him at the K Street Mall. She and her sister met defendant and his friend Jamal and "got a motel" in West Sacramento. She had told him she was 18, but was sure she had also told him she was 17, and he said she looked younger than that, "between 15 and 16." She and defendant had intercourse at the motel that night. She saw defendant several more times after that, and for a while she did not go ...


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