P. v. Young

Filed 1/31/07  P. v. Young CA

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

            A jury convicted defendant Emmett Junior Young of attempted lewd act on a child aged 14 or 15 while being at least 10 years older.  Thereafter, the trial court found true allegations that defendant had suffered six prior convictions for purposes of the Three Strikes law.  It sentenced defendant to 25 years to life in prison.  On appeal, defendant contends that the trial court erred by (1) failing to instruct the jury on the lesser-related offense of misdemeanor child molestation, and (2) admitting over objection evidence of a prior sexual offense.  We disagree and affirm the judgment.

background

            Defendant, 56 years old, had dated the victim's mother for over four years.  He saw the victim, 14 years old, at a school bus stop while driving in his car.  He stopped and offered the victim a ride to school.  The victim accepted.  Defendant told her that he was going to Santa Cruz.  He asked her if there was anything that she wanted to do.  The victim replied that she wanted to drive the car in an empty parking lot.[1]  Defendant replied that he knew of a place in Santa Cruz where she could drive.  Defendant drove off.  He offered the victim marijuana, but she declined the offer.  Defendant drove to a liquor store and asked the victim if she wanted anything.  The victim asked for Hpnotiq, an alcoholic beverage that she had heard about from videos.  Defendant went into the store and returned with a bottle of Hpnotiq and two beers.  As they drove on the freeway, the victim took a sip of the Hpnotiq but put the cap back on the bottle because she did not like the beverage.  Defendant encouraged the victim to continue drinking.  She therefore had a couple more sips.  At some point, defendant left the freeway and allowed the victim to drive on a two-lane street.  Defendant resumed driving when traffic appeared on the street and drove to Highway One towards San Francisco.  The victim then resumed driving and drove toward San Francisco and back for about an hour.  Defendant resumed driving and drove to a McDonald's restaurant.  The two went inside and ordered food.  They took the food in the car.  Defendant encouraged the victim to pour the Hpnotiq into the victim's soft drink.  The victim did so.  She sipped the drink but did not like it.  Her mother then called defendant on his cell phone.  Defendant conversed with the mother but did not reveal that he had the victim with him.  After the call, defendant drove toward San Jose.  He asked the victim whether she had had fun.  The victim replied affirmatively.  Defendant then offered that he had not had fun.  He asked the victim whether she would do something for him, grabbed his penis, and said that he needed, â€