P. v. Austin

Filed 7/27/06 P. v. Austin CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H029250

Plaintiff and Respondent, (Santa Clara County

Superior Court

v. No. CC467605)

ANDREW SPOTTWOOD AUSTIN,

Defendant and Appellant.

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On June 28, 2005, a jury found defendant Andrew Spottwood Austin guilty of aggravated sexual assault of a child under 14 (Pen. Code, § 269), continuous sexual abuse of a child under 14 (Pen. Code, § 288.5, subd. (a)), and child molestation (Pen. Code, § 288, subd. (a)). On August 19, 2005, defendant was sentenced to state prison for a total term of 27 years to life and ordered to pay restitution and parole revocation fines pursuant to Penal Code sections 1202.4 and 1202.45. Defendant appeals on the following grounds: (1) the prosecutor committed misconduct so prejudicial that defendant was denied a fair trial; (2) the trial court erred in refusing to allow defense questions related to the victim's sexual knowledge; and (3) the evidence is insufficient to establish the element of force or duress as to count 1, aggravated sexual assault of a child under the age of 14. We affirm the judgment.

I. Factual Background

M. was born November 5, 1996 and was eight years old at the time of trial. M.'s grandmother, Valerie,[1] married defendant in 2000, after a long-term relationship. Throughout the relationship, defendant was a father figure to M.'s mother, Melissa, and Melissa's two brothers.

Melissa and M. lived with defendant and Valerie from M.'s birth through 2001. M. had a â€