P. v. Donkor
Filed 8/6/13 P. v. Donkor CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW KWASI DONKOR,
Defendant and Appellant.
B245780
(Los Angeles
County
Super. Ct.
No. SA080767)
APPEAL from
a judgment of the Superior Court
of
County. James R.
Dabney, Judge. Affirmed.
Vanessa
Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
________________________
A jury
convicted defendant Andrew Kwasi Donkor of meeting a minor for lewd purposes
(Pen. Code, § 288.4, subd. (b)) and six counts of lewd or lascivious acts on a
child (§ 288, subd. (c)(1)).
name="_ftnref1" title="">[1] The trial court sentenced Donkor to 14 years
in state prison. We affirm.
FACTS
In January
2012, 15-year-old Alison S. began visiting the website myyearbook.com. Online, she encountered Donkor, who
identified himself on the site as 18-year-old Mystic Magnus. Donkor was in fact 40 years old. At first, Alison told Donkor she was not
interested in him. However, in March,
Donkor contacted Alison again online, and they began communicating. Although Alison’s original online profile
indicated she was 17 years old, early in her communications with Donkor she
told him she was actually 15. Alison
gave Donkor her telephone number, at his request. At first, he called her once or twice a week,
and sent her daily text messages.
Eventually, they began talking on the telephone every day. Donkor asked Alison to be his girlfriend. She agreed.
Approximately once a week, Donkor brought up the topic of sex. Donkor told Alison that if she loved him she
would “give him [her] innocence,†and that girlfriends satisfy their boyfriends
by having sex. They made plans to have
sex. Donkor told Alison he wanted to
marry her, but she said she was not ready to think about it as she was only 15.
In May
2012, Donkor told Alison that if they were going to get married in the future
they should have sex. They arranged to
meet in El Segundo, where Alison lived.
Alison had not yet met Donkor in person.
Donkor told Alison they would have sex.
Alison was uncomfortable with the idea, but was willing to go forward
with it to keep Donkor as her boyfriend.
Donkor picked Alison up in a car, near her house. They drove to a spot next to a building. Donkor told Alison to get into the back seat
and take off her pants. Donkor engaged
in sex acts with Alison, including intercourse and oral copulation involving
multiple penetrations. He also put his
hands on Alison’s chest and kissed her.
After
Donkor dropped Alison off at home, she told her mother what had happened. They called the police. Police arrested Donkor. While in police custody, Donkor agreed to be
interviewed. He told police he knew
Alison was 15 years old before he met her in person. He also admitted he arranged to meet Alison
and had sex with her.
name="_ftnref2" title="">[2]
Donkor was
on parole at the time of the incident with Alison. In 2007, Donkor was arrested after police
observed him having sex with another person in the back of a car. It was determined the other person was a
15-year-old girl. Donkor was convicted
of three counts of lewd or lascivious acts on a child in violation of section
288, subdivision (c)(1).
At the
preliminary hearing in the instant case, the court dismissed three counts for
insufficient evidence. The court
concluded there was sufficient evidence to support one count under section
288.4, subdivision (b), one count under section 288, subdivision (c)(1),
and one count under section 288a, subdivision (b)(1). Before trial, the People amended the
information to charge one count under section 288.4, subdivision (b), and six
counts under section 288, subdivision (c)(1).
The defense moved to set aside the information, arguing there was
insufficient evidence to hold Donkor to answer to six counts of violating
section 288, subdivision (c)(1). The
People argued the preliminary hearing testimony suggested there was evidence of
two acts of intercourse, two acts of oral copulation, an act of touching
Alison’s chest, and kissing, which would support the six counts. The court denied the defense motion. The court also held a Marsden hearing, but denied Donkor’s request for new counsel.
A jury
convicted Donkor on all charged counts.
After hearing additional testimony, the jury found true the allegation
that Donkor had suffered prior convictions for unlawful sexual intercourse with
a person under 18 and more than three years younger than the perpetrator (§
261.5, subd. (c)), and section 288, subdivision (c)(1); and he had served a
prior prison term within the meaning of section 667.5, subdivision (b). The jury also found true the allegation that
Donkor was convicted of section 288, subdivision (c)(1), within the
meaning of section 667.51, subdivision (a).
The trial
court sentenced Donkor to a total prison term of 14 years, comprised of the
high term on the section 288.4, subdivision (b) count (four years), consecutive
midterm sentences on the section 288, subdivision (c)(1) counts (four years
total), five years for the section 667.51 prior, and one year for the section
667.5, subdivision (b) prior.
DISCUSSION
Donkor filed a timely notice of
appeal. We appointed appellate defense
counsel. On June 14, 2013, Donkor’s appointed counsel filed
an opening brief raising no issues
pursuant to People v. Wende (1979) 25
Cal.3d 436. On the same day, we notified
Donkor by letter that he could submit within 30 days any ground of appeal,
contention, or argument which he wished us to consider. Donkor filed two responses. We briefly address each of his contentions.
Donkor asserts the trial court
erred in rejecting his motion to set aside the amended information. We disagree.
An information may properly be amended to add additional charges so long
as they are supported by evidence at the preliminary
hearing. (People v. Farrow (1982) 133 Cal.App.3d 147, 152;
80; see also § 1009.) Here, the
additional charges under section 288, subdivision (c)(1), were supported by
evidence adduced at the preliminary examination.
We also find no support for
Donkor’s claim that the trial committed Marsden
error. At the Marsden hearing, defendant asserted he was unsatisfied with
appointed counsel because he was not doing what Donkor wished, such as filing
specific motions, investigating the case, or providing Donkor with case
documents such as police reports. Donkor
did not establish a conflict requiring removal of his appointed counsel. Tactical disagreements do not constitute an
irreconcilable conflict requiring the appointment of substitute counsel. (People
v. Jackson
As we understand his arguments,
Donkor further contends the court improperly enhanced his sentence based on a
charge that was stayed; the paralegal who testified as to his prior convictions
was not a qualified witness; and his counsel was ineffective. Donkor contends his due process rights were thus
violated.
Our review of the record indicates
the jury properly found Donkor had previously been convicted of violating
section 288, subdivision (c)(1), and section 261.5, subdivision (c), and he
served a prison term. The information
alleged that in 2009, Donkor suffered convictions for violating section 261.5,
subdivision (c), and section 288, subdivision (c)(1), and that he served a
prison term for those offenses. The
record introduced at trial indicated that while the court stayed sentence on
the section 288, subdivision (c)(1) convictions, it imposed a sentence on the
section 261.5, subdivision (c) felony convictions. The trial court then properly applied section
667.51, subdivision (a), which mandates that “[a]ny person who is convicted of
violating section 288 . . . shall receive a five-year enhancement for a prior
conviction of an offense specified in subdivision (b),†which includes section
288. The trial court further properly
applied section 667.5, subdivision (b) to impose an additional one-year
enhancement to his sentence. (
Cal.App.4th 164, 177-178; People v. Haney
(1994) 26 Cal.App.4th 472, 477.)
At the jury trial on Donkor’s prior
convictions, a paralegal testified regarding certified documents included in a
section 969b packet, including an abstract of judgment. These documents were admissible to prove
Donkor’s prior convictions and prison term served. (People
v. Moreno
710-711.) The paralegal testifying
indicated one of her job duties was to procure and review felony criminal
records for priors. Her testimony
established she was adequately qualified to describe for the jury the documents
contained in the section 969b packet.
Moreover, regardless of the paralegal’s adequacy as a witness, official
government documents prepared contemporaneously as part of the judgment record
and describing the prior conviction, standing alone, provide sufficient
evidence of the facts they recite about the nature and circumstances of the prior
conviction. (People v. Miles (2008) 43 Cal.4th 1074, 1083; People v. Prieto (2003) 30 Cal.4th 226, 258.)
Finally, Donkor’s claim of
appears to be based on the assertions of error described above. Because we find no error, we must conclude
Donkor has not demonstrated his counsel failed to act in the manner to be
expected of a reasonably competent attorney acting as a diligent advocate. (People v. Lewis (1990) 50 Cal.3d 262,
288; see Strickland v. Washington (1984) 466 U.S. 668.)
We have independently reviewed the
record submitted on appeal, and are satisfied that Donkor’s appointed appellate
counsel has fulfilled her duty, and that no arguable issues exist. (See People
v. Kelly (2006) 40 Cal.4th 106; People
v. Wende, supra, 25 Cal.3d 436.)
The judgment is affirmed.
BIGELOW, P. J.
We concur:
RUBIN, J.
FLIER, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code.
interviewing police officer summarized Donkor’s description of the incident:
“So the first time you said it was two different but same car, same
incident. Sex. Oral.
Sex. Oral. Then you ejaculated the last time is that
what you’re saying? And you ejaculated
in her mouth.†Donkor answered: “Yes.â€
