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The People v. Howard Martin Harmless

November 16, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HOWARD MARTIN HARMLESS, DEFENDANT AND APPELLANT.



(Super. Ct. No. P09CRF0448)

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

P. v. Harmless

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Howard Martin Harmless of furnishing marijuana to a minor under 14 years of age (Health & Saf. Code, § 11361, subd. (a)), furnishing marijuana to a minor 14 or older (id., subd. (b)), and nine counts of lewd acts on a child (Pen. Code, § 288, subd. (a)). Defendant admitted he had five prior convictions for child molestation that qualified as strikes. (Pen. Code, § 667, subds. (b)-(i).) The trial court sentenced him to 725 years to life in state prison. The court imposed restitution and various fines and fees, including $270,000 to the victim for prospective non-economic damages.

On appeal, defendant's main contention--and the only one for which he provides any citations to authority--is that the trial court erred in admitting evidence of his prior acts of child molestation under Evidence Code section 1108 (section 1108) because they were not sufficiently similar to the charged crimes.

As we explain, we see no error in the admission of the prior acts evidence. We find defendant's remaining contentions to be insufficiently presented, to the degree that we decline to reach them. Accordingly, we shall affirm.

FACTS

Offense Conduct

In November of 2008, 13-year-old John Doe and his mother moved to Pollock Pines. They met defendant who was a neighbor in the sparsely populated area. Defendant took an interest in Doe and spent time with him. Doe felt close to defendant and told him about his troubled past.*fn1 When Doe fought with his mother, defendant would take his side. Defendant paid Doe to do work for him. Defendant gave him money and bought him gifts, including cigarettes and cigars. Defendant also let Doe drive his car.

One weekend, Doe had a friend, D.T., over. Defendant suggested the boys stay with him overnight and they did. Defendant used a slang sexual term that meant he wanted to "make love" with them.*fn2 D.T. got very uncomfortable and backed up. Defendant then brought out marijuana and gave it to the boys. Both boys described defendant's smoking pipe, a "one-hitter." The police later found the pipe in a bag of charcoal during a search of defendant's property. According to D.T., after that weekend, Doe became distant, would not talk, and lost friends.

About a week later, Doe was at defendant's computer and defendant told him to lie down on defendant's bed. Defendant pulled down Doe's pants and licked his stomach. Defendant sucked Doe's penis and then gave Doe $50 and told him he could go home.

It happened again a few days later. When Doe tried to get up, defendant bit his penis. Defendant continued to orally copulate Doe. Defendant licked his lips and told Doe he tasted like strawberry. Again, defendant gave Doe $50. Doe's penis hurt and bled from the bite. Doe told his mother he had injured himself and she took him to a doctor where he got some cream.

The abuse continued. Defendant put his hand on Doe's penis five times. Doe stroked defendant's penis twice. Defendant sometimes wanted Doe to make moaning noises and say certain things. Once, defendant tried to "stick his thing in [Doe's] ass." It hurt and Doe bled. Doe told his mother that he was bleeding, but not the cause.

Defendant told Doe not to tell or bad things would happen. Doe would end up in foster care and his father would not take care of him. Defendant told Doe that no one would believe him. Doe, who gave his mother some of the money from defendant, did not tell anyone about the abuse because he thought it would split up the family.

Uncharged Acts

In the last incident, defendant wanted Doe to orally copulate him. Doe began but started to gag and throw up. Doe tore up the $50 defendant had given him. He told defendant, "I'm not doing ...


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