P. v. Spencer

Filed 3/21/06 P. v. Spencer CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Emery Spencer of various sexual offenses against his preteen neighbor, and of possession of child pornography. The trial court sentenced him to state prison. On appeal, the defendant challenges the sufficiency of the evidence of force underlying two of the convictions, the admissibility of a threat he made as consciousness of guilt, the victim's refusal to look at him while she testified, and the structuring of his prison sentence. We shall affirm the verdicts of guilt and remand for resentencing.

In light of his contentions, we forego a separate statement of the facts adduced at trial. Instead, we will incorporate the pertinent details in the Discussion.

Discussion

I

Both in his motion for a new trial and in his statement in mitigation, the defendant challenged the sufficiency of the evidence to support the verdicts on two counts of forcible child molestation. In denying the motion, the court cited evidence that the victim kept telling the defendant to stop during both incidents, that the defendant pushed the victim's shoulders down (albeit gently) until she lay flat on the floor as he attempted intercourse, and that he hoisted the victim onto the bed for a second attempt at intercourse.

This accurately reflected the victim's testimony. Tired of the defendant's repeated requests for a sexual encounter, the 11-year-old victim agreed to disrobe while the defendant â€