P. v. Black

Filed 3/2/06 P. v. Black 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

In this case, we consider whether the trial court erroneously excluded evidence of an informational flyer concerning a released sex offender which defendant offered to show that his daughter had recently been exposed to information about sexual activity against children. Defendant Gabriel Black appeals from the judgment entered following his conviction of committing a lewd and lascivious act on a child under the age of 14. (Pen. Code, § 288, subd. (a).)[1] He claims his constitutional rights were violated when the trial court refused to admit certain evidence. We find no error and affirm.

STATEMENT OF PROCEDURE

By amended information, defendant was charged with committing a lewd and lascivious act on a child under 14 years of age. (§ 288, subd. (a).) The information also alleged that defendant had suffered four prior strike convictions and one prior serious felony conviction. (§§ 667, subds. (b)-(i), 1170.12, 667, subd. (a).)

On August 27, 2004, a jury convicted defendant of the charged offense. The trial court then found true the allegations of prior convictions. Defendant was sentenced to 30 years to life in prison. He now timely appeals.

STATEMENT OF FACTS

In March of 2004, 10-year-old J. lived in a house in San Jose with her mother, her father (defendant), her five-year-old brother and two half-sisters, A. who was older than J., and L., who was younger.[2] Defendant and mother had been married since 1997, but they had on-going marital problems and separations. There was fighting and conflict in the household. At that time, defendant slept apart from mother either on a couch or in the children's bedrooms. Sometimes defendant slept in a bed with J.

One weekend night in March, J. went to bed alone in the bedroom she shared with her younger sister L. In the middle of the night, J. woke up and saw defendant leaving the bedroom, although he had not been there when she went to bed. Very early the next morning, J. awakened because she felt something poking her back. She thought it was her cat, and put her hand back to brush it away, but felt nothing. She fell back to sleep. When J. woke up again, she found her hand on defendant's penis; he was in her bed on his back. Defendant's hand was on her hand, moving it up and down. Defendant had on boxer shorts and pants, and her hand was over his boxer shorts on his erect penis. J. could see part of his penis sticking out of his clothing, and she said it was â€