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The People v. Dennis Lynn Hammond

June 27, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DENNIS LYNN HAMMOND, DEFENDANT AND APPELLANT.



(Super. Ct. No. CR49175)

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

P. v. Hammond

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

We are asked to determine whether defendant Dennis Lynn Hammond's conviction of four counts of lewd acts upon a child (Pen. Code,*fn1 section 288, subd. (a)) was the result of prejudicial prosecutorial misconduct arising from questions asked on cross-examination and statements made during closing argument. We are also asked to decide whether the trial court relied on improper factors in imposing the middle term on the principal count and consecutive sentences on the subordinate counts.

As we will explain, because defendant did not object to the multiple arguably inappropriate comments made by the prosecutor during trial, he has forfeited his right to challenge these comments on appeal. Further, the trial court did not err with regard to sentencing. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and Eric B. worked together and the two became friends. Several times a year, Eric B. invited defendant to join Eric and his two sons, Z.B. (then approximately nine years old) and his younger brother S.B., on trips to places in California, including CC Camp in Ukiah, Pismo Beach in San Luis Obispo, and Letts Lake in Mendocino, to camp, fish and ride motorcycles. Eric B. drove his van and defendant drove his own truck. The boys slept with Eric in their van, and defendant slept in a tent next to his truck.

On a number of trips, Z.B. rode with defendant in defendant's truck and his brother rode with Eric in the van. Z.B. sat either in the front passenger seat or the back passenger seat. During the drive, defendant talked with Z.B. about things like sports, school, places they both wanted to go and girls. Sometimes, they talked about girls' breasts and "private parts."

During certain trips, as defendant drove and Z.B. sat in the front seat, defendant pulled a pornographic magazine out of a travel bag he kept in the backseat, gave it to Z.B. and asked him to look at it. While Z.B. looked at the magazine, defendant instructed Z.B. to pull down his pants and defendant touched Z.B.'s "penis and [Z.B.'s] butt." The same thing happened during other trips when Z.B. was sitting in the backseat of defendant's truck. Z.B. later testified that he sat in the backseat because defendant told him there might be "airplanes and helicopters flying above" and he "didn't want them to see what was happening."

Defendant told Z.B. not to tell anyone about these incidents or he and Z.B. would both get into trouble. On occasion, defendant gave Z.B. money, bought him gifts or took him to a store to buy something.*fn2

The first time defendant touched Z.B. was during a trip to CC Camp around October 2006 when Z.B. was nine or 10 years old.*fn3 During that trip, Z.B. rode in the front seat of defendant's truck. Approximately 10 miles before they reached camp, defendant told Z.B. to take his seatbelt off, gave him some pornographic magazines to look at and told him to pull his pants down. Z.B. complied and defendant touched Z.B.'s penis, leaving his hand there for about five seconds. Defendant told Z.B. not to tell anybody.

The second incident occurred on a trip to Pismo Beach sometime around June 2007, when Z.B. was again riding in the front seat of defendant's truck. After reaching the campground and setting up camp, the group went out for Mexican food for dinner. On the way to the restaurant, defendant told Z.B. to pull down his pants and then touched Z.B.'s penis and buttocks. Again, defendant told Z.B. not to tell anyone.

Several more incidents occurred on a trip to Letts Lake around November 2007. Z.B. rode part of the way there with his father and S.B., then switched and rode the rest of the way with defendant. He did the same on the trip home. On the way there, approximately one hour from the lake, defendant showed Z.B. pornographic magazines depicting naked men and women, and then put his hand on Z.B.'s penis and moved it up and down for approximately five seconds. Z.B. testified that defendant touched him "[a]bout three" times on the trip to Letts Lake, "[o]nce or twice" on the way up and "[o]nce or twice" on the way back.*fn4 On the trip home, defendant touched Z.B.'s penis and buttocks again for about five seconds.

Z.B. eventually told his father about the incidents when his father asked him and S.B. whether anyone had ever touched them in an inappropriate way.*fn5 Z.B. had been afraid to tell his father because he "didn't want to go to jail."

Defendant was arrested and charged, by amended information, with six counts of lewd and lascivious acts on a child under the age of 14 with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of himself or the child. (§ 288, subd. (a).)

At trial, defense witness Dr. Paul Wuehler, a clinical forensic psychologist, testified regarding his psychological evaluation of defendant. The evaluation consisted of an interview lasting approximately two hours and a series of psychological tests, some having to do with mental capacities or emotional abilities and some having to do with sexual tendencies. Based on his evaluation, Dr. Wuehler concluded that defendant did not have any problems with sexual deviance or sexual interest in children.

On cross-examination, Dr. Wuehler stated he was unaware, at the time of the evaluation, that the factual allegations included defendant's ...


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