From Casetext: Smarter Legal Research

People v. Potter

California Court of Appeals, Second District, Fifth Division
Feb 7, 2011
No. B224377 (Cal. Ct. App. Feb. 7, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. KA086882, Robert M. Martinez, Judge.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.


TURNER, P.J.

Defendant, Yuvon Potter, appeals from an April 30, 2010 conviction, after a court trial, of lewd act on a child under 14 and oral copulation and sexual foreign object penetration with a person under 14 and more than 10 years younger than the perpetrator. (Pen. Code, §§ 288, subd. (a), 288a, subd. (c)(1), 289, subd. (j).) The trial court found defendant had: sustained three prior serious or violent felony convictions (§§ 667, subds. (b)-(i), 1170.12); served two prior separate prison terms (§ 667.5, subd. (b)); and sustained three prior serious felony convictions. (§ 667, subd. (a)(1).) The trial court struck two prior conviction allegations under sections 667, subdivisions (b) through (i) and 1170.12 and the two section 667.5, subdivision (b) one-year enhancements. (§ 1385, subd. (a); People v. Baird (1995) 12 Cal.4th 126, 134; People v. Jones (1993) 5 Cal.4th 1142, 1149-1153.) Defendant was sentenced to 35 years in state prison. He received credit for 586 days in pretrial custody plus 88 days of conduct credit for a total presentence custody credit of 674 days. He was ordered to pay: a $200 restitution fine (§ 1202.4, subd. (b)); a $200 parole revocation restitution fine (§ 1202.45); a $30 court security fee as to each count (§ 1465.8, subd. (a)(1)); and a $30 court facilities assessment as to each count (Gov. Code, § 70373).

All further statutory references are to the Penal Code unless otherwise noted.

Defendant contends the evidence was insufficient as to counts 2 (oral copulation) and 3 (sexual foreign object penetration) because: the victim had lied repeatedly; the trial court relied on what the victim told West Covina Police Department Officer Kenneth Davis during an unrecorded police station interview; there was no way to assess the victim’s demeanor during that unrecorded interview; and the victim recanted her statements to Officer Davis at trial. The victim testified at trial pursuant to a subpoena. She testified she never had sexual intercourse with defendant, he never orally copulated her, and he never penetrated her vagina with his finger. She said she had lied to Officer Davis.

The interview with Officer Davis was recorded, but the recording was lost.

In reviewing a challenge to the sufficiency of the evidence, we apply the following standard of review. “[We] must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; accord, People v. Hovarter (2008) 44 Cal.4th 983, 996-997; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) Our Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

There was substantial evidence defendant orally copulated the victim and penetrated her vagina with his finger. Officer Davis testified at trial that on June 30, 2008, the victim said: she had a relationship with defendant lasting approximately 2 months, from April to June 2008; during that time defendant, who was 27 years old, and the victim, who was 13, had sexual intercourse 7 to 10 times; defendant orally copulated her 10 to 15 times; and defendant penetrated her vagina with his finger 20 to 30 times. Officer Davis interviewed the victim less than one month after her final encounter with defendant. Officer Davis took notes during the interview. The events the victim related to Officer Davis were consistent in substance if not in degree with her testimony at the preliminary hearing one year later. She said: she had “sex” with defendant in a car, but only one time; he inserted his finger into her vagina more than once; and she had lied to the police, “About how many times I had sex with [defendant].”

That the victim had a sexual relationship with defendant was corroborated by other evidence. The victim told an associate pastor and youth counselor about the sexual relationship with defendant. During a videotaped interview with Corporal Lori Hayden, a City of West Covina police officer, on July 9, 2008, the victim received a telephone call from defendant. During the conversation, which Corporal Hayden recorded, the victim and defendant discussed having “sex” in the past. Defendant said, “I liked that you would moan.” The victim told Corporal Hayden she was “together” with defendant “sex-wise” “[l]ike, 15 [times].”

There was also evidence the victim had “really liked” the defendant. She told Officer Davis she still had feelings for defendant. The victim said she wanted to protect defendant. At trial, she admitted she did not want to testify. At one point, the victim ended the relationship with defendant. Several months later, the victim met and became close friends with defendant’s niece. The victim did not know at the time that the two were related.

The trial court could reasonably conclude the victim was telling the truth when questioned by Officer Davis and recanted those statements at trial in an attempt to avoid adverse consequences to defendant. (People v. Cuevas (1995) 12 Cal.4th 252, 276-277; see People v. Boyer (2006) 38 Cal.4th 412, 480; People v. Brown (2004) 33 Cal.4th 892, 899; People v. Housley (1992) 6 Cal.App.4th 947, 956.) Moreover, in sex offense cases, as in others, the uncorroborated testimony of a single witness will suffice to sustain a conviction. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052; People v. Scott (1978) 21 Cal.3d 284, 296; People v. Sylvia (1960) 54 Cal.2d 115, 122, disapproved on other grounds in People v. Kelley (1967) 66 Cal.2d 232, 242; Evid. Code, § 411; see People v. Gammage (1992) 2 Cal.4th 693, 703 [conc. opn. of Mosk, J.].) Officer Davis’s testimony at trial relating the victim’s statements is substantial evidence supporting defendant’s conviction on counts 2 and 3. With respect to the sexual foreign object penetration count, Officer Davis’s testimony was consistent with the victim’s preliminary hearing testimony.

The judgment is affirmed.

We concur: MOSK, J., KRIEGLER, J.


Summaries of

People v. Potter

California Court of Appeals, Second District, Fifth Division
Feb 7, 2011
No. B224377 (Cal. Ct. App. Feb. 7, 2011)
Case details for

People v. Potter

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. YUVON POTTER, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Feb 7, 2011

Citations

No. B224377 (Cal. Ct. App. Feb. 7, 2011)