P. v. Cole 12/19/06 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C049298A

Case Date: 04/11/2007

Preview:Filed 12/19/06

P. v. Cole CA3

NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

THE PEOPLE, Plaintiff and Respondent, v.

C049298 (Super. Ct. No. 04F01186) OPINION ON REHEARING

JEFFREY MARK COLE, Defendant and Appellant.

Defendant Jeffrey Mark Cole appeals from the judgment after a second jury found him guilty of three counts of lewd and lascivious conduct on a child under the age of 14 years. The

court sentenced him to an aggregate prison term of 12 years. On appeal, he contends the trial court erred by allowing evidence that defendant admitted possessing methamphetamine for sale and using drugs at his first trial because it made him "forget," counsel was ineffective for failing to make timely and

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specific objections to that evidence, imposition of the aggravated term on count four and two consecutive sentences on counts five and six violated his right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely), and the evidence is insufficient to support imposition of consecutive sentences. In a supplemental brief,

defendant contends the amended abstract of judgment incorrectly states that he was sentenced pursuant to the two strikes law and asks that it be amended to correct a clerical error. We agree with defendant as to the error and shall order the trial court to modify the amended abstract of judgment accordingly. sentence. FACTUAL BACKGROUND A. The Prosecution's Case He As modified, we shall affirm the judgment and

Miles, the victim in this case, was born in May 1990.

lived with his mother Denise, his father Lloyd, and his younger brother Dylan. Lloyd worked as a heavy equipment operator with

defendant who came over on weekends to socialize with the family. gifts. Defendant was nice to Miles and Dylan and brought them Denise and Lloyd separated in 1999. Lloyd previously

had been diagnosed with cirrhosis of the liver and died in 2002. Denise had a good relationship with defendant and considered him a trusted friend. On April 22, 2003, she and her

two sons moved into a house with defendant in Antelope, Sacramento County. On one occasion while the foursome were

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living in that house, Miles and defendant were watching a movie. They were sitting on the couch under a blanket and defendant's legs were draped over Miles' lap. Miles' hands were on the

outside of the blanket and he accidentally touched defendant's penis. Miles was embarrassed, but defendant began rubbing Although Miles was "shocked,"

Miles' penis under the blanket.

he did not say anything to defendant. After a short while, it became apparent the living arrangement did not work, so in July, Denise moved to a separate apartment with her two sons and defendant moved into his own apartment although he continued to call Denise's apartment. One weekend while Miles was 13 years-old, defendant came to visit his family and Miles asked if he could go to defendant's apartment. Defendant often bought Dylan clothes and compact

discs (CD) and Miles was hoping defendant would buy him a CD or a shirt, but when they went to Target, defendant only bought him snack food and drinks before going to his apartment. After watching television and eating, Miles decided to go swimming, so he and defendant went to the pool and sat in the hot tub. Afterwards, they went back to defendant's apartment

and Miles changed his clothes and put on boxer shorts, pajama bottoms, and a t-shirt. shorts. Defendant also changed, wearing only

They ordered a pay-per-view movie and began watching About five

the movie, each one sitting on a different couch.

minutes later, after Miles had moved to the floor, defendant

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moved beside him, pushed Miles' pajama bottoms and boxers down and orally copulated him. Miles was shocked and scared.

During this first incident, Miles and defendant also laid together, facing each other so that their chests and penises were touching. Miles was moving back and forth partially by the

motion of defendant's hands and partially by his own effort. Miles also touched defendant's penis with his hands and his mouth. Afterwards, Miles went into the bathroom and then returned to the living room where he laid down on one of the couches. When defendant returned to the room, Miles pretended to be asleep, but defendant shook his shoulder and asked him if he was awake. Defendant sat on the floor and urged Miles to get down

on the floor with him and began rubbing Miles' knee until Miles eventually moved to the floor. At some point, Miles realized he had no clothes on and that defendant was wearing only his underwear. Miles sat on

defendant's chest and defendant put his mouth on Miles' penis again. Touching Miles' bottom and hips, defendant moved Miles

back and forth until Miles ejaculated. Afterwards, Miles dressed himself and things appeared to be normal as if nothing had happened, although Miles was in shock and began to "freak[] out." He asked to go home because he did

not feel good but defendant told him it was too late, so Miles asked if they could go for a drive. While driving, defendant Miles

told Miles that what happened never had to happen again.

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asked him if he had ever done that to anyone else and defendant told him no. They returned to the apartment and defendant went

to sleep in his bedroom and Miles stayed on the couch unable to sleep. The next morning, Miles and defendant had breakfast and played a video game. Later, defendant took Miles to Target This time, Miles

where he bought him a CD and three shirts.

felt wrong about taking things from defendant and blamed himself for what happened. He wanted to die.

The following day, Miles spoke to Anne Lyons, a school counselor who he trusted, and told her what defendant had done to him. Sergeant Bielcik of the Sacramento County Sheriff's Department interviewed defendant five times from December 9 through December 19, 2003. first interview. He denied molesting Miles in the

However, during the fourth interview, he

admitted that on September 27, 2003, Miles spent the night at his apartment and that when he woke up on the living room couch, Miles was orally copulating him. He told Miles not to do it Defendant was

again and later he saw Miles masturbating.

reluctant to relate this to Bielcik in prior interviews because he "didn't think this thing was going to go this far." B. The Defense

Defendant, who was 40 years of age at the time of the trial, took the stand and denied ever molesting Miles or any other child. He testified that he had been married for two

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years and had been in the navy.

He was a good friend of Miles' As a

father and promised him that he would look after his sons.

result, defendant took the boys out of a gun and drug infested environment, gave them a home with a room of their own, and tried to look after them. Many of defendant's friends and

relatives testified that he was generous with their children. The night of September 27, 2003, when Miles asked to spend the night at defendant's apartment, they used the hot tub, Miles swam in the pool, and then they watched a movie he had rented, during which defendant fell asleep. When he awoke, his shorts Defendant jumped

were down and Miles was orally copulating him.

up, expressed shock, excused himself, went into the bathroom, and then went to his bedroom. A short time later, Miles entered He did not want to go

his bedroom and asked to go for a drive. home but the situation was awkward.

When they returned from the

drive, defendant went back to bed but woke up a couple of hours later and heard the television in the living room. He got up to

turn it off and saw Miles sitting on the floor masturbating. C. Procedure

Defendant was charged with 14 counts of lewd and lascivious acts on a minor under the age of 14 years. (

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