P. v. Niece

Filed 1/9/07  P. v. Niece 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Riverside County.  Rodney L. Walker, Judge.  Affirmed.

            Carl Fabian, 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 and Lilia E. Garcia, Supervising Deputy Attorneys General, and Deana Bohenek, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

            A jury convicted defendant of two counts of aggravated sexual assault of a child (counts 1 & 2; Pen. Code, §§  269, subd. (a)(4) & (5))^[1] and four counts of lewd and lascivious acts upon a child by force or fear (counts 3-6; §  288, subd. (b)(1)).  The jury also found true an allegation that defendant committed lewd and lascivious acts in the present case against more than one victim.  (§  667.61, subd. (e)(5).)  The court sentenced defendant to 15 years to life for each of the six counts, and stayed the punishment on counts 5 and 6 pursuant to section 654.  The punishment for the convictions on counts 2, 3, and 4 are to run consecutive to the conviction on count 1, thus providing for a total indeterminate term of 60 years to life.

            Defendant contends:  (1) the court erred in failing to instruct the jury on the element of force with respect to one of the counts of aggravated sexual assault; (2) the court prejudicially erred in admitting defendant's offer to an investigating officer to plead guilty; (3) the court prejudicially erred in failing to instruct sua sponte on the necessity of jury unanimity; and (4) the court abused its discretion when it allowed defendant's former wife to testify that defendant raped her and limited cross-examination of that witness.  We reject these contentions and affirm.

SUMMARY OF FACTS

            Victims J.T. and S.T. are brothers.  J.T. turned 14 years old in February 2004.  At all relevant times S.T. was 12 years old.  They lived with their grandmother.  Defendant lived in a room in the garage of the grandmother's home.  Defendant was 59 years old at the time of trial.

            On March 18, 2004, J.T. told a friend at school that he had been sexually molested by defendant.  The friend told the school's assistant principal, Gregory White.^[2]  White then called J.T. into his office.  J.T. told White about sexual activity between him and defendant.  J.T. said that it began when he and defendant watched pornographic movies together and defendant told J.T., â€