P. v. McPherson
Filed 7/9/13 P.
v. McPherson CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Rickey McPherson,
Defendant and Appellant.
B245542
(Los Angeles County
Super. Ct. No. BA387815)
APPEAL from
a judgment of the Superior Court of
County, Jose I. Sandoval, Judge.
Affirmed.
Vanessa
Place, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant, Rickey McPherson, appeals from the judgment entered following a
jury trial which resulted in his conviction of two counts of willfully and
lewdly committing a lewd or lascivious act upon a 14- or 15-year-old child
(Pen. Code, § 288, subd. (c)(1))
and one count of unlawful sexual intercourse with a minor who was more than
three years younger than he (§ 261.5, subd. (c)). The trial court sentenced McPherson to three
years four months in prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The
prosecution’s case.
K.J., who
was 19 years old at the time of trial, testified that McPherson married her
mother when K.J. was 10 or 11 years old.
After the marriage, McPherson, K.J.’s mother (Paris) and K.J.’s younger
sister (Z.J.) lived in a two-bedroom apartment.
K.J. shared a room with her sister.
One
afternoon when K.J. was 11 years old, she, her sister and McPherson were all
lying on her mother’s bed watching a movie.
McPherson “sort of†kicked K.J., then started rubbing her upper thigh
with his foot. McPherson’s actions made
K.J. uncomfortable and she asked him why he was doing it. McPherson did not answer. However, when K.J.’s sister decided to leave
the room and go outside, McPherson moved closer to K.J. and began to touch her
upper thigh and vaginal area with his hand.
McPherson removed K.J.’s sweat pants and underwear, pulled down his own
pants and underwear, put on a condom and had sexual intercourse with K.J. K.J. indicated that “[i]t hurt, and [she]
didn’t like it at all†when McPherson placed his penis in her vagina. As he was having sex with her, K.J. heard
McPherson “breathing hard†and, although it was causing her pain, she did not
say anything. When McPherson finished,
he “got off of [K.J.]†and “told [her] to go wash up.†K.J. went into the bathroom and, as she was
washing her vagina with soap and a wash cloth, she noticed she was
bleeding. After washing herself, K.J.
went to her room and “laid down . . . [b]ecause [she] didn’t
feel like doing nothing else.†K.J. did
not tell her mother, Paris,
name="_ftnref2" title="">[2]
what had happened because she was out late that evening and did not get home
until after K.J. was asleep. K.J. also
“didn’t know what [her mother] would do to [McPherson]†and “didn’t know what
would happen to [her] and [her] sister.â€
K.J. was afraid that if she told her mother about the abuse, Paris might
hurt McPherson and she and her sister would be taken from her. K.J. and her sister would be “left alone.â€
happened because she did not want Z.J. “to have to worry about [it].â€
McPherson
continued to have sex with K.J. approximately every other week. He would do so when K.J.’s mother was not at
home and her sister was not around.
McPherson had sex with K.J. in her mother’s room, in her room, in the
living room and in a closet. On one
occasion when he had sex with K.J. in her room, McPherson told her to get on
top of him. McPherson held K.J. by the
waist until he had finished. As he then
left the room, McPherson told K.J. not to tell anyone what had happened. K.J. did not tell anyone because she “didn’t
know who to tell.â€
On at least
one occasion, McPherson asked K.J. to get his shoes from the closet in the
living room where he kept his clothes.
K.J. found one shoe and, as she was looking for its mate, felt McPherson
move in behind her. K.J. felt
McPherson’s erect penis as he began to “rub[]†her vagina. He then removed her pants and underwear, as
well as his own and, while she was lying on her stomach, had sexual intercourse
with her “on top of clothes†in buckets on the closet floor. On other occasions, McPherson asked K.J. to
get him different articles of clothing and would then follow her into the
closet and sexually assault her.
One day
McPherson came to the door to K.J.’s room and asked her if she would like to
make $5. McPherson would sometimes pay
K.J. and her sister $5 to iron his clothes and, believing that that was what he
wanted, K.J. said she would like to make the money. However, when she walked into McPherson’s and
her mother’s bedroom, K.J. noticed that “[t]he front of [McPherson’s] pants
[were] sticking up.†McPherson then
began to touch K.J. on her vagina and ultimately had sexual intercourse with
her while she was lying on her stomach on the bed. After he had finished, McPherson gave K.J.
$5.
When
McPherson first began to have sexual intercourse with K.J., he did so
approximately once a week. However, as
time went on, “it started to slow down†and he had sex with K.J. approximately
every other week until she was 15 years old.
At that time, it “slowed down†even more. When K.J. was 15 and 16 years old, McPherson
had sex with her approximately once a month.
When K.J. turned 17, she went to Missouri, where she stayed for one
year. Although McPherson also went to
Missouri, he did not approach K.J. there.
At some
point, K.J. realized that what McPherson had been doing to her was wrong. K.J. thought about telling someone about it,
but she “didn’t know who . . . to go tell.†K.J. was also afraid that “people [would]
look at [her in] a different way [if she] told
them . . . .â€
However on July 24, 2011, K.J.’s mother, who had read some comments K.J.
had made on Facebook, “texted†her and asked her if McPherson had “ever touched
[her].†At first, K.J., who “wasn’t ready
to tell her†mother about the incidents, indicated that he had not. Then, a short time later, K.J. began to cry
and she “texted her [mother] back†and told her she had lied when she answered
the question her mother had asked earlier and “it was true.†K.J.’s mother then came into the room and
began to yell at K.J., asking, “He did what[?] He did what[?]†and “Why didn’t you tell me[?] Why didn’t you tell me[?]†K.J., who at this point was sitting next to
her sister on the bed, told her mother that she did not know why she had not
told her.
When K.J.’s
mother confronted McPherson, he denied having inappropriately touched K.J. K.J.’s mother then went back into K.J.’s room
and asked her how long McPherson had been molesting her and what had happened. K.J., however, did not tell her mother. She had “never seen her [mother] like that .
. . . Her eyes [were] bloodshot red, and
[K.J.] didn’t know what she was going to do.â€
K.J.’s mother then went back into her bedroom, where McPherson was
getting dressed. There, she took out a
gun. She did not, however, have the clip
and K.J. could see McPherson and her mother “fighting over the clip for the
gun.†When K.J.’s mother came back into
K.J.’s room she was still holding the gun.
McPherson left the apartment and K.J.’s mother then called the police.
Police
officers interviewed K.J. and her mother separately. K.J. told an officer what had happened and,
at a later time, spoke about the incidents in detail with an Officer
Bowser. She told the officer the truth
to the best of her recollection.
When
questioned about dates and times these incidents had occurred, K.J. could not
remember. At trial, she stated, “I don’t
remember the dates, the months, or none of that. I just know that it happened.â€
Z.J. is K.J.’s
younger sister. She was 18 years old at
the time of trial. July 24, 2011,
the day K.J. disclosed that McPherson had been sexually abusing her, was Z.J.’s
17th birthday. That evening, Z.J. heard
her mother ask K.J. a question and K.J. respond “that [their] dad [had] touched
her[.]†Z.J. then heard her “mom and
. . . dad [get] into it.†Z.J.
saw K.J. start to cry and heard her tell their mother she “was sorry.†At that point, Z.J. went into another room
because she “didn’t want to hear it or see anything.†She did, however, hear her mother ask
McPherson if he had done it, McPherson say “no†and her sister cry.
Z.J.
believed McPherson had been a good stepfather and had treated the two girls
equally. On July 24, 2011, Z.J. spoke to
police officers, then later spoke with an Officer Bowser. When Bowser asked Z.J. if she had ever
observed anything unusual, she told the officer, “No, except that when
sometimes I would be outside and playing in the front with . . . neighborhood
kids and I tried to go in the house . . . , the door would
be lo[c]ked . . . .â€
Z.J. had,
on at least one occasion, seen McPherson’s “private part.†When she was in the 7th or 8th grade, she was
in his closet looking for his shoes when he approached her with the “fly partâ€
of his pajama pants open. Z.J. told
McPherson that she could see his penis and he “went out to go fix hisself.â€
At the time
of trial, Z.J. and K.J. were speaking with each other almost every day. They did not, however, ever talk about what
McPherson had done to K.J.
Los Angeles
Police Department Officer Paul Bowser was the investigating officer in
McPherson’s case. During his interview
with K.J., she told the officer that McPherson had begun to sexually abuse her
when she was 11 years old and that the abuse occurred in different parts of the
house, including her mother’s bedroom and McPherson’s closet.
Bowser
spoke with McPherson
name="_ftnref4" title="">[4]
twice on August 15, 2011.
name="_ftnref5" title="">[5] The officer first interviewed McPherson in
his office at the police station and, after advising McPherson of his
rights, asked him questions regarding the allegations which had been made by
K.J. In response, McPherson denied
having had sexual intercourse with K.J. until after she had turned 18 and, even
then, he indicated “it was for a very short amount of time.†McPherson stated it occurred the first time
when “they were both on the . . . bed and [Z.J.] . . . was
outside the house and he said there was something that [K.J.] was doing and he
told [her] that it was . . . arousing him.â€
He asked K.J. “what she wanted to do about it. And they had this back and forth, and he got
up and . . . put his penis in her vagina for a very short amount of
time. . . . [Z.J. then]
called him on his phone because she was outside trying to get inside of the
house. . . . [A]t that
point . . . [McPherson told K.J.] to go and let [Z.J.] into the house
and so they stopped doing what they were doing.†Also during the first interview, McPherson
told the officer that his wife, Paris, had told him and K.J. that her, Paris’s,
stepfather had tried to molest her.
According to McPherson, K.J. “took it and ran with it.â€
The second
interview occurred several hours later at a different police station. Before questioning McPherson, Bowser again
advised him of his Miranda
rights. McPherson then told Bowser that,
when K.J. was 13 or 14 years old, “he had sex with her approximately two times,
and from the age of 13 or 14 to 16, he had sex with her six times.†McPherson told Bowser that he did not know if
he was the first person who had ever had sex with K.J., but that on the first
occasion “he had a hard time getting his penis into her vagina.†On each occasion, they had sex on the foot of
McPherson’s bed. He never had sex with
K.J. in his closet and he never told her “not to tell anybody.â€
Dr.
Mitchell Eisen is a psychologist who specializes in the study of “memory,
memory for the events in our lives, eyewitness memory and suggestibility.†He had previously testified as an expert in
the area of memory with regard to child sexual abuse. Eisen had not interviewed K.J. or any of the
other witnesses in this case. He was
there to testify regarding principles of memory “in the abstract.†Eisen testified about “child sexual abuse
accommodation syndrome.†He explained
that “when [a child is] in a secret situation with an adult who’s telling
[them] this is how the world works, [that child] will often feel helpless in
the face of this and will tend to accommodate†the adult. If the abuser is a close family figure, many
children will delay disclosing abusive behavior. A child does not know what goes on outside of
his or her family and will assume that what is happening is normal. Accordingly, “delay [in disclosing] is very
common.†In fact, “most kids never
tell.†In addition, many children
recant. Eisen stated, “It is very common
for kids to be delayed and inconsistent in their disclosing and [then] outright
take it back.†According to Eisen, it is
fairly universally agreed that “most people who have experienced child sexual
abuse do not tell about it.†When
victims do disclose abuse, it is usually “retrospective[ly,]†as adults.
b. Defense
evidence.
Paris
McPherson is married to McPherson and is K.J.’s mother. She has another daughter, Z.J., and she loves
them all. Paris described herself as
“not the easiest person to get along with.â€
She is, however, a “no nonsense†person and would not lie for her
daughter or her husband.
Paris, who
is an LVN who works “in the psychiatric field with children 5 to 12 years old,â€
had been sexually molested by her stepfather when she was 12 years old. Although she had told her two daughters that
it had happened, she had never gone into detail regarding the incident because
she felt that it was not appropriate to do so.
However, she had frequently asked her daughters if they had been
inappropriately touched “because of [her] experience.â€
In the
several months before she graduated from high school, K.J. had been extremely
difficult. She had frequently complained
about McPherson and, according to Paris, “it was just horrible in [her] house.â€
In June
2011, after K.J.’s high school graduation, Paris’ stepmother asked Paris what
she would do if she discovered that K.J. and McPherson had been having sexual
encounters. Paris at first believed that
her stepmother was “out of [her] . . . mind†and she told her
stepmother that she would kill them both and “they both knew that.†After that, Paris and her stepmother “just
left that conversation alone.†Things
then “exploded†on Z.J.’s birthday in July.
When Paris
came home from work on July 24, 2011, K.J. began to complain to her about
McPherson. Paris then went onto Facebook
and noticed that K.J. had placed “all this stuff on there about [how she]
hate[d] this house, this, that and the other.â€
Paris went to speak to K.J. about the postings, but felt herself getting
angry. She decided to instead go into
the living room and send K.J. a text message asking her what was wrong with
her. In the meantime, McPherson came
home. Paris asked him if he knew what
was going on with K.J. and he indicated he did not. Paris then sent K.J. a text message in which
she asked K.J. if McPherson had been “touching [her.]†At first K.J. sent to Paris a text message in
which she said, “No, nah, he ain’t touching me.†K.J. then sent Paris a second text message in
which she said, “Momma remember that question you asked me
earlier[?] . . . I lied
before. He did.â€
Paris
jumped up from the couch, went into K.J.’s room and repeatedly asked her what
McPherson had done to her. K.J., who was
sitting on the floor just repeatedly told Paris she was sorry. Paris responded by asking K.J., “What are you
sorry about[?] You need to tell me what
the hell happened to you right now.â€
When K.J. told her mother McPherson had been touching her since she was
11 years old, Paris stated she was going to kill him. When McPherson then came into the room, he
told K.J. to “stop lying†and to tell her “momma the truth.†Paris pushed McPherson up against the wall,
told him not to speak to her daughter and to talk to her. Paris then left K.J.’s bedroom and went to
get her gun.
McPherson
followed Paris and, as she was attempting to place the clip in her gun, he
grabbed her hand, got hold of the clip and “took off [toward] the door.†Paris went to the kitchen to get her
butcher’s knife, intending to “cut†McPherson.
However, before she could catch up with him, a neighbor, who had heard
the commotion, came into the apartment, stood in Paris’s way and told her to
calm down. At that point, Paris “came to
[her] senses a little bit.†She
telephoned her stepmother, who told her to call the police. When Paris called the police, she told the
individual who answered the phone her “daughter [had just] told [her] that
[her] husband ha[d] been molesting her since she was 11 years old.â€
Several days later Paris, based on
the information she had at the time, concluded McPherson and K.J. had not had
sex until K.J. was 18 years old. Paris
did not believe McPherson had been molesting K.J. when she was only 11 years
old. She had “found no evidence†of
abuse. Although Paris was aware of the
fact McPherson had told police he had sex with K.J. when she was 13, she
believed him when he told her that he and K.J. did not have sex until K.J. was
18. Paris believed when McPherson told
police he had been molesting K.J. since she was 13 he was speaking as a “broken†man, one who
had “shut down.†When Paris watched the
video tapes of Bowser’s interviews with McPherson, she thought McPherson looked
“[l]ike a person [who] just [could not] take it no more, that’s just tired,
that’s just [willing] to give up, that’s just like it’s whatever, okay, let’s
get it over with.â€
Paris acknowledged “in the last
couple of months leading up to when the police c[a]me to [her] house that [K.J.
had been] acting out.†She had been
“wearing provocative clothing†and “leaning over in front of [McPherson].†In addition, it had appeared to Paris that
K.J. had had a problem with McPherson “since she was a child†and she “had it
out for him.†Paris was of the opinion
K.J. believed she and K.J.’s father “should be together†and K.J. had acted
antagonistically “with [her] first husband†as well as McPherson. K.J. had not, however, accused Paris’s first
husband of sexually molesting her.
Finally, Paris had discovered that K.J. had been “sleeping around with
[her] friend’s [17-year-old] son.†Paris
attributed much of K.J.’s behavior to the fact she was having that affair. Paris did not believe K.J.’s testimony
McPherson had been having sex with her since she was 11. Paris believed she and K.J. were “very much
alike†and K.J. was simply “imitating [Paris’] life.â€
Ethel Rasdale is a support services
manager at Kedren Community Mental Health Center. Her duties there include “transportation,
environmental services, and procurement.â€
Rasdale knows McPherson because he is a “transportation driver†at the
center and she is his supervisor.
Rasdale has been signing McPherson’s time sheets since at least
2004. By reviewing McPherson’s time
sheet from January 2004, Rasdale could tell he had consistently worked several
hours of “overtime†each day that month.
The time sheet showed he had worked 104 hours. McPherson’s regular hours were from
6:00 a.m. to 2:30 p.m. However, he
frequently worked up to four additional hours.
This pattern of working overtime continued until 2008, when the center
hired additional drivers. From that time
on, McPherson’s time sheets indicated he usually worked a regular eight-hour
shift.
c. Rebuttal.
On the day Officer Bowser
first met Paris, K.J. and Z.J., Paris told Bowser that “she was having a lot of
problems with [K.J.]†and K.J. had repeatedly told Paris that she wished to
move to St. Louis. Bowser had told Paris
that he thought it was “a good idea†because K.J. “had disclosed all . . . of this sexual abuse at the hands
of [McPherson], and [the officer] thought it was a good idea for her to move
out there [to get] some separation from him.â€
2. Procedural
history.
Following a
preliminary hearing, on February 3, 2012 an information was filed in which
McPherson was charged in the first count with the continuous sexual abuse of a
child under the age of 14 years, a serious felony (§§ 288.5, subd. (a), 1192.7,
subd. (c), 1203.066, subd. (a)(8)); in the second and third counts with
committing a lewd act upon a child who was at least 10 years younger than
McPherson, a felony (§ 288, subd. (c)(1)); and in the fourth count with
committing unlawful sexual intercourse with a minor, not his spouse, who was more
than three years younger than McPherson, a felony (§ 261.5,
subd. (c)). At arraignment,
McPherson entered pleas of not guilty to each of the alleged counts and denied
all the special allegations.
At
proceedings held on July 30, 2012, the prosecutor indicated McPherson faced a
term of 18 years in prison. The
prosecution had offered him a term of 12 years in exchange for a plea, however
McPherson had rejected the offer and made no counter-offer.
Prior to
jury selection, counsel for the victim requested that a “child sexual victim
accommodation witness†be allowed to testify.
After hearing argument by both parties, the trial court determined it
would allow the testimony. The court
indicated, although the victim was 19 years old at the time of trial and the
alleged incidents began when she was either 11 or 14 years old, such an expert
might assist the jury in understanding why the victim had not reported the
abuse sooner. The court continued,
“[Either party] may ask [the expert] . . . a hypothetical question, but [the
expert is] not going to opine on the ultimate issue, but simply give the jury
some expert testimony that may aid them in their decision.â€
Defense
counsel next indicated the prosecution might attempt to present evidence that
McPherson had some sexual contact with this victim when she was 18 years old,
“when she was an adult.†Counsel
indicated the prosecutor had attempted to bring it “out [at] the prelim, [and]
we shut it down, the judge struck it.â€
Defense counsel continued, “I want to make sure that we’re not going to
discuss . . . that it may have happened when she was an
adult. . . . I don’t
think that’s relevant.†The trial court
responded, “Based on the dates referenced in the four counts, it doesn’t appear
to me that the D.A. is going to get into that.â€
During her
opening statement, the prosecutor indicated that during an interview with an
officer McPherson had denied any improper conduct with the victim, then said
“well, yeah, I had sex with her, but only when she turned 18. I did not have sex with her before
that.†Defense counsel requested a
“sidebar†and stated the parties had
agreed that if some kind of contact had occurred when the victim was 18,
“it was not relevant and . . . was not going to be introduced in this
trial.†McPherson’s counsel then moved
for a mistrial. The prosecutor
indicated, although defense counsel had given her “a list of her objections,â€
that did not mean that she, the prosecutor, had agreed to all of them. The prosecutor stated that under “the rule of
completeness when [defense counsel asked for the discussion of the sexual
allegations with the officer] to come in, then it [all should] come[] in
whether [McPherson] says that it didn’t happen at all, which he does sometimes,
or whether he ultimately says it only happened when [the victim] was 18.†The trial court stated it would give defense
counsel a final ruling on her motion the following day, after it had reviewed
Evidence Code section 356.
name="_ftnref7" title="">[7] In the meantime, the trial court directed
both parties to “stay away [from McPherson’s statement he only had sex with the
victim after she had turned 18] for the rest of [their] opening
statement[s].†The trial court indicated
defense counsel’s motion was, at that time, denied. However, if it found “there [was] some
prejudice that [c]ould only be cured by mistrial, [it would] do that or,†at
the very least, “admonish the jury.â€
After K.J.
completed her direct testimony, the trial court again considered defense
counsel’s motion for a mistrial. After
hearing argument by both parties, the court determined the comment made by the
prosecutor during her opening statement, that McPherson had sex with the victim
when she was 18 years old, was not so prejudicial that the only remedy would be
to declare a mistrial. Instead, the
court indicated it would “issue an admonishment to the jury to ignore that
issue.†The court continued, “There will
be no evidence admitted concerning that issue, there will be no testimony
concerning that issue––that statement made by the D.A. in her opening
statement. I’ll admonish the jury to
ignore that and not to consider it for any purpose in this trial. That’s the court’s ruling.â€
After the
prosecution presented all of its evidence, defense counsel made a motion for
dismissal of the action pursuant to section 1118.1, arguing the evidence
presented by the People had been insufficient to show McPherson committed the
alleged crimes. The trial court denied
the motion, indicating the People had “submitted sufficient evidence to
overcome an 1118.1 motion.â€
After the
evidence was presented, the trial court instructed the jury. One of the instructions stated: “Now[,] during the trial, the testimony of
Dr. Eisen was admitted for a limited purpose. . . . In addition, you’ve heard testimony or
evidence that the defendant had sex with the [victim, K.J.], when she was 18,
the age of majority. That sexual
contact, if you believe that it occurred, is not at issue in this case and the
defendant is not being charged with any crime arising from that contact. Do not
draw any inference about his guilt or innocence regarding the charges in this
case based on any contact he may have had when she was 18.â€
On November 2, 2012, after the
trial court had concluded its instructions and the parties had given their
arguments, the jury retired to deliberate.
McPherson then waived his right to be present for any readback of
testimony or questions submitted by the jury, indicating he wished to be
present only for the reading of the verdicts.
Later that day, in the presence of
both defense counsel and the prosecutor, the trial court indicated the jury had
requested a copy of K.J.’s testimony.
The trial court indicated it would “see if [it could] . . . narrow†the
request. The court continued, “I’m going
to ask them [if they] want direct examination, cross-examination or both and
see what they say.†After a time, the
jury responded. The trial court
indicated “they want[ed] both direct and the cross-examination.†Accordingly, the court directed the court
reporter to prepare the testimony and, as previously agreed to by the parties,
go “into the jury room and read that testimony to the jury.â€
The following Monday, November 5,
2012, the trial court indicated the court reporter had “prepared the proffered
readback†and that both counsel had been given the opportunity to review
it. The court reporter then read the
testimony to the jury in the jury room.
On the afternoon of November 5, the
jury indicated it had reached verdicts.
The foreperson handed the verdict forms to the bailiff who, in turn, handed them to the trial
court. After the trial court reviewed
the forms, it addressed the foreperson and stated, “Are you telling me that the
jury has reached no verdict on count 1?â€
The foreperson responded, “That is correct. We did not reach a unanimous verdict on count
1. As per your instructions, we filled
out the forms, [for the counts for which] we did reach unanimous [verdicts] and
handed you back the other sheets blank.â€
The following colloquy then occurred:
“The court: Is the reason that
you didn’t reach a verdict on count 1 because you were hung on that
count? [¶] [The foreperson]: Hung, meaning? [¶]
The court: Unable to reach a
unanimous––the 12 of you could not agree on one verdict or the other? [¶]
[The foreperson]: That is
correct. [¶] The court:
I know that you’ve been deliberating since late Friday. Were I to give you additional time, do you
think that [with] further consideration by you as a jury, you might be able to
reach a verdict on count 1? [¶] [The foreperson]: As the foreperson you want me to speak for
the jury? [¶] The court:
Exactly. [¶] [The
foreperson]: I do not think so. [¶]
The court: Okay. Is there anything––I know that you asked for
readback, is there anything the court can do in aid––in facilitating [the] . .
. reaching [of] a verdict either way on count 1? [¶]
[The foreperson]: I think the
jury feels that we have all the evidence that we needed . . . to come
to a verdict. [¶] The court: . . . [D]o the other jurors
feel the same way about that? Okay. Everyone appearing to nod in agreement. [¶] I
do note that we have verdicts on counts 2, 3 and 4. Let me hand those verdicts to the clerk who
will read them into the record.â€
The court clerk indicated that the
jury had found McPherson “guilty of the crime of a lewd act upon a child on or
between February 22nd, 2007 and February 21st, 2008, in violation
of . . . section 288[, subdivision] (c)(1), a felony as charged
in count 2 of the information.†The jury
had also found McPherson “guilty of the crime of a lewd act upon a child on or
between February 22nd, 2008 and February 21st, 2009, in violation
of . . . section 288[, subdivision] (c)(1), a felony as charged
in count 3 of the information.†Finally,
the jury found McPherson “guilty of the crime of unlawful sexual intercourse on
or between February 22nd, 2009 and February 21st, 2010, in violation
of . . . section 261.5[, subdivision] (c), . . .
as charged in count 4 of the information.â€
The jurors then each indicated that those were their verdicts.
The trial court again addressed the
foreperson and stated, “I’m going to ask you for the ratio on the voting of
count 1, without telling me [how many were] for guilty or not guilty, if you
can just give me the numbers the last time you
voted . . . .†The
foreperson indicated the vote had been “roughly 50/50†and the vote had been
fairly evenly split each of the approximately five times the jury had voted. The trial court then, after indicating it was
unlikely further deliberations would result in a verdict, declared a mistrial
as to count 1.
Although defense counsel argued
McPherson, who had been free on bail throughout the proceedings, should remain
so until sentencing, the trial court indicated it was its practice to remand
defendants once they had been found guilty of felony crimes. Sentencing was then set for November 21,
2012, or within 20 days of that date.
At proceedings held on November 21,
2012, the prosecutor indicated the People did not intend to retry McPherson on
count 1, the continuous sexual abuse of a child under the age of 14 years, a
serious felony. The trial court,
accordingly, dismissed the count.
After hearing argument by both
counsel and comments from the victim’s mother, Paris McPherson, and grandmother,
Lorene Galbert, the trial court indicated that, with regard to elements in
aggravation, it had found the victim was vulnerable and the defendant “took
advantage of a position of trust and confidence to commit the crime[s].†In mitigation, the trial court noted
McPherson “ha[d] no prior record†and “arguably voluntarily acknowledge[d]
wrongdoing during the interview at the police
station . . . .†The
court then denied probation and sentenced McPherson to the mid-term of two
years in prison for committing a lewd act upon a child at least 10 years
younger than he as alleged in count 2.
For his conviction of count 3, committing a lewd act upon a child at
least 10 years younger than he, the trial court sentenced McPherson to a
consecutive term of one-third the mid-term, or 8 months in state prison. With regard to count 4, McPherson’s
conviction of committing unlawful sexual intercourse with a minor more than
three years younger than he, a felony, the trial court imposed a consecutive
sentence of one-third the mid-term, or 8 months in prison.
years four months in prison.
After awarding McPherson
presentence custody credit for 27 days actually served and 4 days of good
time/work time, or 31 days, the trial court imposed a $240 restitution fine (§
1202.4, subd. (b)), a stayed $240 parole revocation restitution fine
(§ 1202.45), a $120 court operations assessment (§ 1465.8, subd. (a)(1)),
a $90 conviction assessment (Gov. Code, § 70373), and a $300 “sex offender
fine†(§ 290.3). In addition, the trial
court ordered McPherson to register as a sex offender within five days of his
release from prison.
McPherson filed a timely notice of
appeal on November 21, 2012.
After examination of the record, appointed
appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent
review of the record. By notice filed
April 12, 2013, the clerk of this court advised McPherson to submit within 30
days any contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received
to date.
We have examined the entire record
and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN, P. J.
CROSKEY, J.
name="_ftn1" title="">
further statutory references are to the Penal Code unless otherwise indicated.
refer to K.J.’s mother by her first name not out of any disrespect, but to
avoid confusion.
