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People v. Vonner8/16/2004
CERTIFIED FOR PUBLICATION
Contrary to the numerous contentions in the deluge of supplemental briefs now being filed in the California Appellate Courts, it is not at all clear that the United States Supreme Court opinion in Blakely v. Washington (2004) __ U.S. ___ [124 U.S. 2531] has sounded the death knell for California sentencing laws. It remains to be seen whether the Determinate Sentencing Law has been bruised, battered, or born into a better world. Here we only conclude that Blakely does not impact a sentencing court's imposition of a full consecutive sentence for an enumerated violent sex offense. (Pen. Code, § 667.6. subd. (c).)
Sylvester Vonner was convicted by jury of forcible lewd conduct on a child under the age of 14 (count 2; § 288, subd. (b)(1)) and committing a lewd act on a child under the age of 14. (§ 288, subd. (a)). The jury was unable to reach a unanimous verdict on the forcible rape charge. (Count 1.) The trial court sentenced him to serve 12 years state prison. He appeals claiming instructional error, denial of the effective assistance of counsel, and sentencing error. We affirm.
Facts and Procedural History
In July 2002, 10-year-old India P. was on a bed watching cartoons. Appellant, her grandfather, entered the room with his pants unbuckled, turned India over on her back, and pulled down her panties. Holding her hands above her head, he inserted his penis in her vagina and moved it in and out. India screamed and told appellant to "stop" and "get up." (Count 2.)
When India complained of vaginal pain and bleeding, her mother opined that she was menstruating or may have wiped herself too hard. After the family moved to Compton, India told her sister and mother about the rape. The police were notified, India explained what had happened, and was examined by a doctor. She also testified that about three weeks before the rape, appellant repeatedly touched her vaginal area while she was clothed, rubbing her "private area" with his hand. (Count 3.)
On November 5, 2002, appellant was interviewed by Detective Susan Velazquez and agreed to a polygraph examination. Appellant said that he and India were wrestling and that when India bounced on top of him, the head of his penis went inside her vagina.
At trial, appellant denied putting his penis inside India . He said that Detective Velazquez told him to apologize, not because he raped India, but because India needed to hear the apology. " he detective told me that my granddaughter want me to . . . admit that I had sex with her, that I raped her, and that I put my penis inside her. If I didn't do that, that [India] was going to grow up retarded."
Detective Velazquez testified that appellant gestured with his hands to demonstrate how far his penis penetrated India 's vagina. Appellant, however, claimed that Detective Velazquez first used the gesture. "She put up her finger and told me how much. Like this? Like this? Like this?" Appellant said that he went along with the detective.
Polygraph Exam
Appellant argues that his statements and gestures, made during the polygraph exam conducted by Detective Delia, were improperly received and considered by the jury. Evidence Code section 351.1, subdivision (a) states in pertinent part that "the results of a polygraph examination . . . shall not be admitted into evidence in any criminal proceeding . . . unless all parties stipulate to the admission of such results." Subdivision (b) provides: "Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible."
Before trial, appellant sought adm
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