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The People v. Kevin Brewer

February 1, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEVIN BREWER, DEFENDANT AND APPELLANT.



(Alameda County Super. Ct. No. C160049)

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

I. Introduction

Appellant, who represented himself at trial, was convicted of continuous sexual abuse of a child and aggravated sexual assault on a child. He contends that the trial court erred in denying his belated motion for appointment of counsel, and in refusing to allow him to impeach the victim with the fact that she had made a prior unsustained allegation that she had been sexually molested. In the unpublished portion of this opinion, we reject these contentions, and affirm the conviction.

Appellant also contends that he was entitled to presentence conduct credit. In the published portion of this opinion, we conclude that appellant is correct that he was entitled to such credit, even though he was sentenced to an indeterminate prison term with a maximum of life. Accordingly, we modify the judgment to reflect the additional credit.

II. Facts and Procedural Background

A. Facts

The victim, appellant's daughter L.D.,*fn1 was born in early 1990. L.D. lived with her mother, and appellant lived with them sporadically, including the period when L.D. was four or five years old. He stopped living with them after he and L.D.'s mother broke up because he hit L.D.'s mother. Appellant continued to visit with L.D. after that, however, and he frequently took L.D. to the park or other locations for a few hours.

According to L.D., by the time she was five years old, appellant started repeatedly touching her on the vagina with his hands. As time went on, his sexual touching of her escalated, and appellant refused to stop when she asked him. When she was eight or nine years old, he began having sexual intercourse with her. During the ensuing three or four years, and possibly longer, appellant often took L.D. to a park at night to play basketball, and forced her to have sex with him when she lost, which was most of the time. This occurred 10 to 20 times in one park, 10 to 20 times in another park, and once in appellant's van while it was parked at the Berkeley Marina. Appellant also had intercourse with L.D. in a motel where they stayed during trips to visit L.D.'s grandfather. L.D. could not recall the specific dates of any of these incidents.

When L.D. was 13 or 14 years old, she told someone that an older man, whom she did not name but who was apparently identified as appellant, had sexually molested her in a hotel. This information was reported to a child protective services agency (CPS). When CPS attempted to investigate, however, L.D. refused to cooperate with them, and the matter was not pursued.

Appellant's molestation of L.D. continued until, at age 14 or 15, she was arrested for robbery, taken to juvenile hall, convicted of battery and being an accessory, and placed in a group home.*fn2 While L.D. was detained at juvenile hall, appellant sent her a sexually explicit letter that was intercepted by the staff and turned over to a probation officer, who contacted the police. L.D. at first declined to cooperate with the police investigation, but later changed her mind because appellant was "nasty and disrespectful" to her by leaving sexually explicit messages on her voicemail.

L.D. played one of appellant's voicemail messages for a police detective, who recorded it and had it transcribed. The message referred in very explicit terms to appellant's past experience of having had sexual intercourse with L.D. In addition, L.D. showed the detective an exchange of text messages between herself and appellant, in which she sent him a message saying, "fuck you," and he responded, "I'd love to." L.D. also gave the detective numerous letters appellant had sent her, several of which included explicit sexual content, and referred to the fact that they had "continued to have sex for a very long period of time." Appellant continued to send L.D. letters after he was ordered not to contact her. L.D. received two letters from appellant right before trial, but discarded them without reading them.

Appellant admitted sending L.D. letters, including the ones she received right before trial in violation of a court order, and admitted that he had L.D.'s name tattooed on his chest. He argued, however, that what appeared to be sexually explicit content in his letters was actually just "how black folks talk," or at least how he, as a self-described "ghetto person," expressed himself.

In addition, appellant testified, and provided corroborating documentary evidence, that he was incarcerated for significant portions of the time span during which he was accused of sexually abusing and assaulting L.D., i.e., January 19, 1996, through January 18, 2004. Specifically, the evidence indicated that appellant was in custody from December 19, 1995, through June 26, 1996; for nine months during 1998; from July 21, 2001, through February 26, 2002; for all but 82 days during the remainder of 2002; and for all but 49 days during 2003. There was no evidence, however, that appellant was in custody between June 27, 1996, when L.D. was about six and one-half years old, and July 20, 2001, when L.D. was about eleven and one-half years old, except for a period of nine months during 1998. Also, by appellant's own account, he was out of custody for a total of ...


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