P. v. Weston

Filed 5/30/06  P. v. Weston 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NOT TO BE PUBLISHED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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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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     Defendant John Fredric Weston was charged with 18 counts of lewd and lascivious acts upon J., a child under the age of 14.  (Pen. Code, §  288, subd. (a).)^[1]  After the prosecution rested, the trial court granted the motion of the prosecution to dismiss counts 15 through 18 based on insufficiency of the evidence.  The jury found defendant guilty of 13 of the remaining counts and not guilty of count 14. 

     The trial court sentenced defendant to a total term of 20 years in state prison by sentencing him to the middle term of six years for count 1, a consecutive one-third of the middle term (two years) for each of counts 2 through 7, concurrent six year middle terms for counts 8 through 12, and a further consecutive term of one-third of the middle term (two years) for count 13. 

     On appeal defendant contends (1) evidence of defendant's possession of child pornography was erroneously admitted under Evidence Code section 1108 over defendant's Evidence Code section 352 objection, (2) evidence of defendant's prior consistent statement was erroneously excluded, (3) the trial court's instruction of the jury with CALJIC No.  2.50.01 violated defendant's right to due process for various reasons, (4) the prosecutor engaged in prejudicial misconduct, and (5) the denial of a jury trial on the aggravating sentencing factors violated defendant's constitutional rights.  We reject defendant's claims.  We shall direct correction of a minor clerical error in the abstract of judgment and otherwise affirm the judgment.

FACTUAL BACKGROUND

     Lisa Weston and defendant became romantically involved in 1991 or 1992.^[2]  Lisa and her sons J. and N., then two and a half and three years old respectively, moved in with defendant and his two daughters, S. and T., who were approximately the same age as J. and N.  Lisa and defendant married in 1997 and in 1998 the family moved from Fresno to a house in North Highlands. 

     J. testified that when he was eight or nine years old defendant would come into the bedroom J. shared with his older brother N. at their bedtime and while they were on their bunk beds, defendant would tickle J. on his stomach and legs.  Defendant would pull J.'s pajamas or boxers off and would fondle J.'s penis until J. got an erection.  Defendant would do the same things to N. and would then compare their erections to see which one was bigger.  J. could see defendant touch N. when he was on the top bunk and looked over at N. on the bottom bunk.  J. was not clear on how often this had happened.  J. testified defendant did this sometimes every night, then every once in a while.  He estimated it was more than five times, but was not sure if it was more than 20 times. 

     J. also testified that while they were living in North Highlands, but prior to the time when defendant was fondling J. and N., defendant would tell the children to â€