People v. Reed CA3

Filed 1/14/15 P. v. Reed CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE, C075227

Plaintiff and Respondent, (Super. Ct. No. 62112428)

v.

KEVIN ANDREW CHARLES REED,

Defendant and Appellant.

Defendant Kevin Andrew Charles Reed was the father of a teenage daughter (the victim) whom he molested from the time she was 15 in 2009 until she was 17 in 2011. The molests began when the victim confided in defendant that she was nervous about her first kiss with her boyfriend, and defendant made her French kiss him instead. The molests progressed to them kissing hundreds of times, the victim masturbating him once a week between January 2010 and summer 2010, and the victim orally copulating him once a week between summer 2010 and fall 2011. There were also four more specific incidents of molest: (1) in December 2009, defendant made the victim touch his penis

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before buying pajamas for her; (2) in January 2010, defendant made her touch his penis before allowing her to see a movie; (3) in February 2010, defendant made her touch him to “get off grounding” and get her cell phone back for mistakenly reading a weather report (that incorrectly stated it was not snowing) before they went on a trip to Nevada; and (4) around Thanksgiving 2011, defendant made the victim “suck” his penis before she could visit her sick boyfriend. A few weeks later, the victim told a girlfriend about the molests, the girlfriend’s mother called police, and defendant was arrested. Defendant testified at trial and denied molesting the victim. Defendant’s teenage niece also testified. According to the niece, defendant and the victim had a normal father-daughter relationship. The niece did see defendant pat the victim on her rear end, and defendant had done that to her, too. The niece was “[a]bsolutely not” offended by the pat, and it was done “in a way as if to congratulate [her].” When she saw defendant pat the victim on her rear end, it was a “similar type of pat.” A jury found defendant guilty of 11 lewd acts on a child and 15 acts of oral copulation, and the trial court sentenced him to 19 years and eight months in prison. Defendant appeals, contending the trial court erred in: (1) failing to sua sponte instruct on the lesser included offenses of attempted lewd acts and attempted oral copulation; and (2) denying his motion for new trial because his counsel was ineffective. Disagreeing, we affirm. DISCUSSION I The Trial Court Properly Did Not Instruct On The Lesser Included Offenses Of Attempted Lewd Acts And Attempted Oral Copulation Defendant contends the trial court erred in failing to sua sponte instruct on the lesser included offenses of attempted lewd acts and attempted oral copulation. His reasoning is as follows: Leaving aside four counts that were based on specific testimony, the remaining sex acts were based on the generic testimony that the victim