P. v. Fanady

Filed 1/23/06  P. v. Fanady CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Fresno County.  W. Kent Hamlin, Judge.

            Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson and Mary Jo Graves, Chief Assistant Attorneys General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorney Generals, for Plaintiff and Respondent.

-ooOoo-

            Defendant Nicholas Ernest Fanady was convicted of numerous crimes arising from sexual acts with young boys and sentenced to prison for an indeterminate term of 75 years to life.  He appeals, claiming the trial court erred in failing to give the jury an attempt instruction for the count involving victim D.  P., the prosecutor committed misconduct when she asked defendant if he thought the prosecution witnesses were lying, and the trial court erred in giving instruction on consciousness of guilt.  We affirm.

FACTS

            In 1995, W.  V. encountered defendant when he was nine or ten years old.  W.  V. was at Woodward Park with family and friends.  The first time he saw defendant, defendant exposed himself.  Later that day, W.  V. wandered off by himself and defendant followed him.  Defendant talked to him and led him into the restroom.  Defendant pulled down his shorts and asked W.  V. if he wanted to touch defendant's penis.  Defendant grabbed W.  V.'s hand and put it on defendant's penis and moved W.  V.'s hand back and forth.  While doing this, defendant's other hand was on W.  V.'s testicles.  Defendant took off W.  V.'s pants and touched W.  V.'s penis.  Defendant put his mouth on W.  V.'s penis.  Defendant stopped when someone entered the restroom.  Defendant pulled up W.  V.'s pants and his own pants and walked out.  (Count 1--lewd and lascivious act of placing victim's hand on defendant's penis; count 2--lewd and lascivious act of rubbing victim's testicles; count 3--lewd and lascivious act of putting victim's penis in his mouth; count 4--oral copulation, an alternative count to count 3; these counts were charged under Pen. Code^[1] §  288, subd. (a), except count 4, which comes under §  288a, subd. (c)(1). )

            W.  V.'s second encounter with defendant was in the summer of 1995.  W.  V. saw defendant walking and W.  V. tried to hide.  W.  V. stayed with his parents for awhile and then went to play with his brother.  Defendant found W.  V.  W.  V.'s brother left.  Defendant led W.  V. into a hollowed-out place between some branches.  Defendant massaged W.  V.'s penis and testicles.  He pulled down W.  V.'s pants and felt his penis and testicles.  Defendant put his mouth on W.  V.'s penis.  (Count 5--lewd and lascivious act of placing victim's penis in his mouth; count 6--oral copulation, an alternative count to count 5; count 7-rubbing victim's testicles; these charges were under  §  288, subd. (a), except count 6, which comes under §  288a, subd. (c)(1). )

            W.  V. saw defendant at the park by the amphitheatre in 1996.  Defendant pulled down W.  V.'s pants.  Defendant felt W.  V.'s testicles and then orally copulated him.  Defendant masturbated until he ejaculated.  He asked W.  V. if he wanted a birthday gift.  (Count 8--lewd and lascivious act under §  288, subd. (a).)

            The last encounter W.  V. had with defendant was in 1997.  W.  V. was at the park.  Defendant walked W.  V. to the restroom, expressing his feelings for him.  In the restroom, defendant touched W.  V.'s private parts over his clothes.   The clothes came off and defendant kissed W.  V. all over.  Defendant pulled W.  V. close and touched their penises together.  He then orally copulated W.  V.  Defendant also attempted to put his finger in W.  V.'s anus, but W.  V. prevented him from doing this.  (Count 9--lewd and lascivious act of pressing their exposed penises together; count 11--lewd and lascivious act of orally copulating victim; count 12--attempted sexual penetration when defendant attempted to put his finger in the victim's anus; these charges were under §  288, subd. (a), except count 12, which comes under §§  264/289, subd. (j).)^[2] 

W.  V. did not have the courage to tell anyone what happened until he learned of defendant's arrest in 2004 for incidents occurring in 2000 and 2004. 

In 2000, D. P. was 11 years old and living with his mother in Fresno.  Defendant was a local television broadcaster.  D. P. saw defendant on television.  On a televised newscast, defendant remarked he had not seen one of the new golden dollar coins that were in circulation.  D. P. wanted to bring a coin to the station to give to defendant.  D. P. and his mother drove to the television station to give the coin to defendant.  Defendant came out to the reception area and D. P. gave him the coin.  Defendant then took D. P. and his mother on a short tour of the station.  Defendant gave D. P. some items from the station to take home with him.  He invited D. P. to come back to the station and have lunch with him. 

            D. P.'s mother made an appointment for D. P. to return to the station.  She dropped D. P. off at the station.  Defendant took D. P. out to lunch and brought him back to the station for a broadcast.  When they were finished, defendant drove D. P. home. 

            Defendant telephoned D. P., e-mailed him, and mailed him letters.  He invited D.P. on a fishing trip at a location near his house.  D. P.'s mother agreed to the fishing trip and on May  20, 2000, defendant arrived at D.P.'s  home to take him fishing.   

            D. P. and defendant fished.  Defendant then asked D. P. if he had ever gone skinny-dipping.  D. P. did not know what skinny-dipping was.  Defendant described it to him.  Defendant said to D. P., â€