P. v. Lowell

Filed 5/3/06 P. v. Lowell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Yolo)

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Defendant Burnam Lelan Lowell was sentenced to a lengthy prison term after a jury found him guilty of numerous criminal offenses. On appeal, defendant raises a variety of contentions. For reasons that follow, we shall reverse the convictions for penetration with a foreign object (count 5), lewd conduct with a child (count 13), and sodomy with a child (counts 19, 45, 46, 47, and 48), and direct the trial court to dismiss those counts. In all other respects, we shall affirm the judgment as modified.

FACTS

Defendant was born on May 1, 1974. His oldest son (the victim) was born in March 1993. Ever since the victim was two years old, defendant's aunt and her husband, Charlene and Roy S.,^[1] have been legal guardians of the victim, who apparently never lived with his biological mother.

From June 1997 until January 2000, the victim lived with defendant, although the guardianship continued. During that time, the household included the victim, defendant, defendant's wife, Barbara Lowell, defendant's and Barbara's two younger children, and Barbara's daughter by a prior relationship. Defendant's brother and his wife, Matt and Deborah Lowell, and defendant's sister, Samantha Lowell, had homes nearby defendant's residence.

Defendant bred American Staffordshire terriers, also known as American pit bull terriers. In January 2000, he had 18 to 22 dogs, including a number of puppies. The victim helped take care of the dogs.

Defendant would sometimes go on a drinking binge. This would lead to arguments with Barbara. On those occasions, Barbara would take the children and leave. There was ample evidence that at least some of the time, she would leave the victim, who was not her child, with defendant. On some of those occasions, defendant's mother, Merrena Gonzales, would pick up the victim and take him to her home.

On the weekend of January 7 and 8, 2000, defendant was on a drinking binge. Barbara took the children, except the victim, and left. On January 8, 2000, a number of persons, including Charlene, were at Samantha's house to help her move. Defendant and the victim came to the house. Defendant appeared drunk at the time. Later in the day, Charlene overheard the victim tell his cousin that he was scared. When Charlene asked if everything was all right, the victim started crying, wrapped his arms around her, and said he was scared of defendant.

Charlene decided to take the victim to her house for a few days. When Charlene told defendant what she intended to do, he began yelling and said he would get people on the reservation to stop her.^[2] Defendant asked the victim if he was scared of defendant. The victim looked frightened or embarrassed and said that he was. As Charlene took the victim away, defendant told her that in nine days, when defendant was off parole, he was going to â€