P. v. Heron

Filed 8/2/06 P. v. Heron CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed.

Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez,

Supervising Deputy Attorney General, and Felicity Senoski, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction

Over a period of six years, defendant Damone Dante Heron sexually abused his stepdaughter, who was six when the abuse began and 12 when defendant impregnated her. A jury convicted defendant of one count of continuous sexual abuse (count 1) (Pen. Code, § 288.5, subd. (a)) and three counts of lewd acts upon a child (counts 2-4) (Pen. Code, § 288, subd. (a)). The jury also found that, during the commission of one of the lewd acts, defendant personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). The trial court sentenced defendant to a total of 29 years in prison.

On appeal, defendant claims the trial court abused its discretion in excluding evidence of his stepdaughter's other sexual experience and her prior false allegation of physical abuse against her biological father. Defendant also claims that the evidence was insufficient to support the great bodily injury enhancement because a pregnancy does not constitute a significant and substantial physical injury. In challenging his sentence, defendant claims the court's decision to impose aggravated and consecutive terms violated the United States Supreme Court's ruling in Blakely v. Washington (2004) 542 U.S. 296.

We conclude that the trial court properly exercised its discretion in precluding cross-examination on the stepdaughter's sexual experience and prior allegations. As we have held in the past, we again affirm that a pregnancy resulting from a rape constitutes great bodily injury. As anticipated by defendant, we reject his argument under Blakely. We affirm the judgment.

2. Factual and Procedural History

Defendant's stepdaughter, Jane Doe, was born in 1990. Doe's mother and defendant began living together in 1993 and were married by 1996. Although Doe initially lived with a cousin, in 1996, she began living with her mother and defendant in Gardena. Doe was six years old. At about that time, the molestations began when defendant exposed his penis to Doe while watching a pornographic movie. Defendant touched Doe's genital area and had her touch his penis.

In 1998, Doe briefly lived with her biological father but later returned to her mother's home. Doe's family, which now included two younger siblings, moved to Rialto. When Doe was nine years old, defendant began having sexual intercourse with her. While living in Rialto, defendant had sex with Doe more than three times.

The family moved to Fontana when Doe was in the seventh grade. Defendant continued having sexual intercourse with Doe. Doe agreed to have sex with defendant in exchange for certain privileges, including being excused from punishment. Defendant would release Doe from being grounded and allow her to play outside. Doe also had sex with defendant to avoid getting a whipping. Doe remembered having sex with defendant more than five times while living in Fontana. Doe estimated that she had sex with defendant more than 50 times altogether.

Although the family usually lived in small apartments, the sexual encounters always occurred at the family home. They occurred even while Doe's mother or siblings were at home. Defendant fathered a total of four children with Doe's mother. When defendant suffered a head injury and required in-home nursing services, defendant continued to have sex with Doe while the nurse was present in the home.

Doe's mother discovered that Doe was pregnant when she was 12 years old. Doe told her mother that a boy from school was the child's father. When the school alerted the police concerning the pregnancy, the police interviewed Doe. During the interview, Doe explained that she had sex with her boyfriend, â€