P. v. Howell CA2/26

Filed 3/26/13 P. v. Howell CA2/26 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B237884 (Super. Ct. No. MA046867) Plaintiff and Respondent, (Los Angeles County)

v.

KENNETH HOWELL,

Defendant and Appellant.

Kenneth David Howell appeals from the judgment entered after his conviction by a jury of first degree murder (Pen. Code, §§ 187, subd. (a), 189),1 two counts of aggravated sexual assault upon a child (§ 269, subds. (a)(4) & (a)(5)), and two counts of lewd act on a child by use of force. (§ 288. subd. (b)(1). Appellant admitted that he had served one prior prison term. (§ 667.5, subd. (b).) He was sentenced to prison for an indeterminate term of 55 years to life plus a consecutive determinate term of 17 years. Appellant contends that the prosecutor improperly used his post-arrest silence to impeach him. He also contends that (1) the trial court erroneously instructed the jury, and (2) defense counsel was ineffective because she failed to object to some instructions and failed to request other instructions. We affirm. However, we direct the trial court to correct an omission in the abstract of judgment.

1 All statutory references are to the Penal Code. 1

Facts People's Evidence In the evening on August 23, 2009, appellant and his wife, T., argued inside their bedroom. H. exited the bedroom and walked into the kitchen to get something to drink. H.'s 15-year-old son, J. P., asked her if she was okay. She replied that she was okay and walked back into the bedroom. Before J.P. went to sleep in the living room, he heard T. yell to him to " 'please help.' " He did not intervene because he was scared of appellant. Appellant "used to beat [him]." That night, appellant forced T.'s daughter, S, to have sex with him. S was 13 years old, and appellant was not her biological father. (3RT 942, 944)~ While S. was sleeping in the living room, appellant picked her up and carried her into her mother's bedroom. T. was lying on the bed with a blanket covering her head. She was not moving or making any sounds. Appellant placed S. on the bed next to her mother. Appellant kissed S. on the neck and mouth and touched her breasts. He removed his and S.'s clothing. Appellant placed his mouth on S.'s vaginal area. Appellant then "put [her] legs on his shoulders." S. felt "something go inside [her] vagina." It was painful, and she started to cry. Appellant said that "if [she] didn't stop crying, he was going to duct tape [her] head next." Appellant was on top of S., moving his body back and forth. J.P. awoke at noon. He tried to open the door to his mother's bedroom, but "there was this chair in the way, which prevented [him] from opening it." Appellant, who was inside the bedroom, asked J.P. what he wanted. J.P. replied that he was looking for S. Appellant said that S. was with him. J.P. went back into the living room. Appellant eventually exited the bedroom. He had a "big grin on his face" and "pushed [J.P.] out of the way." Appellant went into the garage and drove away. J.P. entered his mother's bedroom. T. was lying in bed on her stomach "with her hands tied behind her back with duct tape." A plastic bag completely covered her head. The bag was secured with duct tape "from her neck to the top of her head." S. "was at the edge of the bed on her knees, crying."