P. v. Miller CA1/3

Filed 3/6/13 P. v. Miller CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A135161 v. ISAAC ANDREW MILLER, (Contra Costa County Super. Ct. No. 05-100198-1) Defendant and Appellant.

Defendant Isaac Andrew Miller was convicted by a jury of three counts of oral copulation with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a)), and was sentenced to three terms of 15 years to life in prison, with two of the terms to be served consecutively and one concurrently. Miller’s appeal raises challenges to standard jury instructions that he acknowledges prior published cases have rejected, seeks presentence conduct credits that are not disputed, and asks us to review sealed school records of the victim to determine whether the court erred when it declined to disclose them to the defense. We follow the precedents upholding the jury instructions, and conclude there was no need for the court to disclose the school records. We modify the judgment to award additional credits, and affirm the judgment as so modified. I. BACKGROUND The victim, Miller’s son (Son), was six years old at the time of trial. Miller shared custody of Son with Son’s mother (Mother). Son was staying with Miller on December 14, 2009, and talking with Mother on the phone when he said that Miller “puts his pee- pee in my mouth” and “makes me lick his pee.” Mother called the police and drove to

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Miller’s home. Officers arrived, spoke with Miller, Mother and Son, and left without making an arrest. Mother went home and left Son with Miller. Son’s preschool teacher (Teacher) testified that Mother called and asked her to talk to Son about the incident. Son told Teacher that Miller put his “pee-pee in my mouth,” and Teacher advised Mother against leaving Son in Miller’s custody. Miller confirmed to Mother that Son’s reports were true, said that he had “random urges,” and that for six months to a year he had been making Son lick his penis. Mother called the police and Miller was arrested on the night of December 16. Miller told the arresting officer that he had a “porn problem” and that, on five occasions, he had Son lick his penis while he was watching pornography and masturbating. In a videotaped interview at the police station on the morning of December 17, Miller said he was addicted to pornography, and had Son lick his penis three to five times in the previous six months while he masturbated watching porn. In a videotaped interview at the Children’s Interview Center in Martinez (CIC) on December 21, Son said he had sucked his daddy’s pee-pee at his daddy’s house while there were pee-pees on the TV. Son later told Mother that Miller had put his pee-pee in his butt, as well as his mouth, in the shower and in bed. Mother called the prosecutor and, in another videotaped interview at the CIC in April 2010, Son said that Miller had put his pee-pee in his mouth and butt. Teacher testified that Son talked daily about the molestations after he first reported them, and said that Miller had put his pee-pee in Son’s mouth and butt. Son testified at trial that Miller put his pee-pee in his mouth two-to-four times, and put his pee-pee in his butt once. One of the officers who went to Miller’s residence on December 14 testified for the defense that Mother told him Son was a special needs child with “a lot of issues.” Mother said that Son had made up stories in the past. She said that he had told her something about sucking his daddy’s penis, but then said, “Joey from school did it.” Son told her that he was watching Superman all day and wanted to see the police. Defendant denied molesting Son. He testified that he never had Son lick his penis, or put his penis in Son’s butt. He said he told Mother and the police that he made Son