P. v. Gurley

Filed 3/30/06 P. v. Gurley 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Kern County. Clarence Westra, Jr., Judge.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Janis Shank McLean and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Charles David Gurley was convicted by jury of five counts of lewd and lascivious conduct on three separate victims, violations of Penal Code^[1] section 288, subdivision (a). In a bifurcated court proceeding, the court found appellant to be a habitual offender within the meaning of California's three strikes law and that appellant had suffered two prior convictions within the meaning of section 667, subdivision (a). Appellant was sentenced as a third strike offender to a total term of 425 years to life: 75 years to life on each count pursuant to section 667.71, plus two additional five-year enhancements on each count.

FACts

Appellant lived in a Bakersfield neighborhood and befriended two families with male children under the age of 10 years. He invited all three children to spend the night at his home on several occasions over a period of several months. During these overnight visits, appellant committed various sexual acts with C.G., L.M. and J.V., including oral copulation, attempted sodomy, and penetration with a foreign object. He also showed C.G. and L.M. pornographic pictures of children and adults engaging in activities similar to the acts appellant committed with them. Appellant bought the boys expensive toys and computer games. He told each victim that they could not tell anyone else about the sexual conduct. Appellant told L.M. that he knew a police officer that would have L.M.'s father arrested if he told anyone.

The matter was reported after J.V. told his mother what was happening. Police officers seized appellant's laptop computer and found pornographic pictures similar to those described by the children. Initially, when asked by his mother if appellant was touching him inappropriately, C.G. said no. Later, he told investigating officers he had, but only that appellant had orally copulated him.

Pursuant to Evidence Code section 1108, evidence was presented that appellant had previously molested two other children, both adults at the time of trial, when they had spent the night at appellant's house. One victim testified that the molest consisted of the same type of acts committed by appellant in this case.

Discussion

I. Excusing Jurors for Cause

Appellant contends that he was denied his Sixth Amendment right under the United States Constitution to a fair and impartial jury because the trial court denied his challenge for cause to prospective jurors, Nos. 191584 and 196074. While we agree that the trial court abused its discretion in denying the challenges for cause (People v. Weaver (2001) 26 Cal.4th 876, 910 [assessing the qualifications of a juror for duty is a matter falling within the broad discretion of the trial court]; People v. Bradford (1997) 15 Cal.4th 1229, 1351 [decision whether to retain or discharge a juror, based on claim of bias, rests within sound discretion of trial court]), we conclude there was no prejudice. (People v. Crittenden (1994) 9 Cal.4th 83, 121 [to prevail, defendant must demonstrate court's denial of challenge affected right to a fair and impartial jury].)

A. Application of Yeoman

Respondent contends that the holding in People v. Yeoman (2003) 31 Cal.4th 93 precludes this court from considering the merits of appellant's claims. Yeoman stands for the proposition that a defendant cannot show that the right to an impartial jury was affected when the defendant fails to challenge for cause any sitting juror. (Id. at p. 114.) â€