P. v. Whitehurst 8/27/02 CA2/4

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State: California

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

Docket No: B151901

Case Date: 11/25/2002

Preview:Filed 8/27/02 P. v. Whitehurst CA2/4

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. JAMES HERMAN WHITEHURST, Defendant and Appellant.

B151901 (Super. Ct. No. BA203309)

APPEAL from a judgment of the Superior Court of Los Angeles County, James M. Ideman, Judge. Reversed and remanded. Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Betty B. Chim, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant James Herman Whitehurst was convicted by a jury of committing three lewd and lascivious acts upon his wife's 10-year-old daughter. He appeals from judgment granting him probation, contending that the judgment must be reversed due to instructional error. For reasons explained in this opinion, we reverse the judgment and remand for retrial. FACTUAL SUMMARY The evidence, briefly recounted in the light most favorable to the judgment proved that on the morning of May 27, 2000, appellant walked into the living room of his apartment and found his 10-year-old stepdaughter Danielle lying on the couch in her pajamas. He lay down behind her and rubbed her buttocks through her clothing for about 30 seconds, until Danielle got up and left the room. The next day the same thing happened except that this time appellant rubbed Danielle's buttocks underneath her panties, and then moved his hand forward to rub her vagina. Again, Danielle got up from the couch and left the room. On June 2, 2000, appellant accosted Danielle as she lay on her mother's bed. Appellant, who was wearing only boxer shorts, touched Danielle's buttocks with his hand and his penis. When Danielle's younger brother entered the room, appellant went into the bathroom. When he returned, appellant said to Danielle, "When you wear shorts they get in the way." Appellant asked Danielle to go into the bathroom with him, but she refused. DISCUSSION I Pursuant to Evidence Code section 1108, and over appellant's objection, the court allowed 20-year-old prosecution witness Rosie Houston to testify that when

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she was 10 years old, appellant sexually assaulted her on two occasions when she was babysitting for Danielle's mother. The court instructed the jury concerning this testimony, in the words of CALJIC 2.50.01, as modified in 1999, as follows: "Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in the case. [

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