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The People v. Kody Lee Kaplon

January 10, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KODY LEE KAPLON, DEFENDANT AND APPELLANT.



(Super. Ct. No. MCYKCRBF09399)

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

P. v. Kaplon

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On appeal from numerous convictions arising out of his kidnapping and sexual assault of a three-year-old girl, defendant Kody Lee Kaplon contends the trial court erred by: (1) denying his motion for change of venue, (2) destroying jury questionnaires, and (3) failing to instruct on the corpus delicti rule with respect to the sex crimes with which he was charged. We conclude that defendant failed to preserve the denial of his change of venue motion for appellate review by failing to renew that motion or otherwise object to the composition of the jury following a voir dire in which he did not exhaust his peremptory challenges. Because the venue issue is not properly before us, any error in the destruction of the jury questionnaires was necessarily harmless. Harmless, too, was the trial court's failure to instruct on the corpus delicti rule as to the sex crimes, because the victim's statements provided the requisite quantum of evidence needed to satisfy that rule. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts may be briefly stated. On the night of March 1, 2009, defendant came to Carolyn Souza-Myers's apartment in Yreka; he was intoxicated. Defendant acted "weird," saying "kind of off-the-wall things about being in the secret service." He also said he had come by to say good-bye because he was "going to jail for a long, long time," although he did not know how long or how he was going to get there. Eventually, defendant was asked to leave.

After midnight on March 2, defendant arrived at P.S's apartment. At the time, P.S.'s great-niece -- the victim in this case (referred to as Jane Doe) -- who was three years old, was sleeping in the living room just off the kitchen. Defendant kept going back out to his car to get beer, but eventually, around 4:00 or 4:30 a.m., P.S. gave defendant some methamphetamine and told him to smoke it and sober up so P.S. could go to bed. P.S. then fell asleep without seeing defendant to the door as he usually did.

The victim's great-grandmother (P.S.'s mother), who was also living in the apartment at the time, awoke to hear the victim saying, "No, I don't want to go with you. I don't like you." She got up and left her bedroom and almost crashed into the victim's mother and father as they came out of their room in the apartment. Everyone began looking for the victim, who was not in her bed. The victim's mother ran out the door and saw defendant driving away with the victim on his lap.

James Ragsdale lives on Humbug Creek Road, about 20 to 30 minutes outside of Yreka. One morning in March 2009, around 10:30 or 11:00 a.m., defendant, who looked like he had rolled down a hill in the mud, knocked on Ragsdale's door and told Ragsdale he had rolled his pickup. Ragsdale gave defendant a ride home.

George Flippen found defendant's car later that day "high centered" over the side of a road in a remote area. He followed some footprints in the mud and found the victim down a hill off the road. She had mud all over her.

In an interview with a Child Protective Services worker the same day she was found, the victim said that "Jack" had taken her in his car, buried her, choked her, licked her vaginal area, touched her vaginal area with his fingers, put his penis in her mouth, and put his penis in her vagina. The victim ultimately said it was defendant who took her.

Defendant was ultimately charged with attempted murder, kidnapping, sexual intercourse with a child under the age of 10, two counts of oral copulation with a child under the age of 10, two counts of committing a lewd and lascivious act on a child under the age of 14, inflicting cruel and inhuman corporal ...


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