P. v. Kushner
The People filed an amended 18-count information charging David Gregory Kushner with various crimes against five women: oral copulation accomplished against the victims' will by threatening to use the authority of a public official to incarcerate or arrest (Pen. Code,[1] § 288a, subd. (k)); kidnapping to commit oral copulation (§ 209, subd. (b)(1)); other sexual crimes (§§ 261, subd. (7), 286, subd. (k), 243.4, subd. (a), 664/261, subd. (7)) and assault (§ 245, subd. (a)(1)).
At the end of the prosecutor's case-in-chief, Kushner moved for a judgment of acquittal on all counts (§ 1118.1); however, the court granted the motion as to only one count. A jury convicted Kushner of two counts against Monica S: oral copulation under section 288a, subdivision (k) and simple kidnap, a lesser included offense of kidnap to commit oral copulation (§ 207). It acquitted him of 14 counts, and was unable to reach a verdict on one count, which the court dismissed in the interest of justice. (§ 1385.) The court suspended imposition of sentence, placed Kushner on probation for five years and ordered him to serve 365 days in jail.
Kushner contends: (1) insufficient evidence supported the convictions; (2) the trial court erroneously denied his new trial motion brought on ground that the prosecutor withheld critical evidence from the defense in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady); (3) the prosecutor committed misconduct during closing arguments; and (4) there was cumulative error. We affirm the judgment.
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