People v. Griffin CA3

Filed 6/30/15 P. v. Griffin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Amador)

THE PEOPLE, C075293

Plaintiff and Respondent, (Super. Ct. No. 11-CR-17899)

v.

BRANDON DANIEL GRIFFIN,

Defendant and Appellant.

A jury convicted defendant Brandon Daniel Griffin of (count I) a lewd act on a child under the age of 14, (count VI) contact with a minor with the intent to commit a sexual offense, and (count VII) possession of matter depicting a minor engaging in or simulating sexual conduct. Count I was based on the actions of Griffin, then 18, with L.E., the sister of his best friend, who was then 12. Counts VI and VII were based on his possession of his cell phone containing pictures and videos that had been sent to him by K.M., his 15-year-old “friend[] with benefits.” She and defendant were attending the same high school at the time. The jury acquitted Griffin of two additional counts of lewd acts upon a child, one count of forcible oral copulation with a child, and one count of

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continuous sexual abuse. L.E. was the alleged victim in all of the counts for which Griffin was acquitted. The trial court sentenced Griffin to five years in prison. Griffin argues his trial counsel rendered ineffective assistance when he failed to object to a portion of the prosecutor’s closing argument that incorrectly defined the concept of reasonable doubt. He also argues the case should be remanded for clarification of sentencing and to reflect an additional two days of presentence custody credit. We shall affirm the judgment, but remand for resentencing. FACTUAL AND PROCEDURAL BACKGROUND Count I was based on an incident involving L.E. On January 13, 2011, when Griffin was 18 and L.E. was 12, Griffin spent the night at the home of his friend Anthony, L.E.’s older brother. L.E. sent a text message to her friend K.L. telling her that Griffin was staying the night. She sent K.L. another text message saying that Griffin had a condom. She sent another text message to K.L. saying, “I told him yes.” L.E. then texted K.L., “You’ll still love me even if I do, right?” Finally, because L.E. and K.L. had heard the quote in a movie they had watched, L.E. texted: “Getting the text. . . . It was not fun and definitely not what you see on TV.” At some point during the night, Griffin went into L.E.’s bedroom, and after kissing her, he undressed her from the waist down and put his penis inside her. He used a condom, and did not ejaculate. He left when he heard a noise. Afterward, L.E. texted K.L., “It was not fun and definitely not what you see on TV.” The incident came to light when K.L.’s mother, suspicious of her daughter’s behavior, read the messages on K.L.’s cell phone. The prosecution’s medical expert could not render an opinion on whether or not a sexual assault had taken place after examining L.E. and her medical records from just after the incident. L.E.’s hymen was normal for a teenager.