P. v. Jackson CA1/1

Filed 4/30/13 P. v. Jackson CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A133779 v. TOMMIE LEE JACKSON, (Contra Costa County Super. Ct. No. 051105261) Defendant and Appellant.

Defendant Tommie Lee Jackson appeals from his conviction, by jury, of six counts of lewd conduct toward a child in violation of Penal Code section 288, subdivision (c)(1). His sole contention on appeal is that the trial court erroneously denied his request to recall the victim to the stand, during his case in chief, for a fourth session of cross examination. Defendant had ample opportunity to question the victim, and we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On April 13, 2011, the Contra Costa District Attorney filed a six-count information accusing defendant of six violations of Penal Code section 288, subdivision (c)(1).1 This code section provides that ―lewd or lascivious‖ actions against ―a child of 14 or 15 years‖ by one who ―is at least 10 years older than the child‖ is punishable by ―imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year.‖ (§ 288, subds. (a), (c)(1).) The information also 1 All further statutory references are to the Penal Code unless indicated.

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asserted defendant had two prior serious felony convictions and other felony convictions that made him eligible for ―three strikes‖ punishment and other sentence enhancements. The victim, Jane Doe, testified at trial as a prosecution witness. Her direct testimony began on September 22, 2011, and was as follows: In 2009, when she was age 15, she and defendant, then age 42, had what appeared to be a consensual dating relationship. They would often sleep together and have sex ―maybe a couple times a week.‖ Doe testified she still cared for defendant and it was hard for her to testify. Defendant, who represented himself throughout the trial proceedings, began his cross-examination of Doe on the afternoon of September 22, 2011. At 4:30 p.m., defendant informed the court he still had ―quite a few questions‖ left, so the court declared a recess and ordered Doe back at 9:00 a.m. Monday morning, September 26, 2011. Doe did not appear on the 26th. According to the district attorney‘s investigator, who had gone to pick up Doe but could only contact her by phone, Doe said she was overwhelmed and could not take it. A warrant issued for Doe‘s arrest. Doe was brought to court pursuant to the warrant the following day, September 27, 2011, and cross- examination continued. The district attorney conducted a re-direct examination, and defendant followed with a re-cross-examination that continued after the lunch break. On concluding, defendant requested Doe be subject to recall. In all, defendant‘s questioning of Doe spanned three sessions and approximately 44 reporter‘s transcript pages. Toward the end of the day, defendant began presenting his case-in-chief. After the jury was excused for the evening, he informed the trial court he wanted to recall Doe. When asked why, he told the court he wanted to question Doe further about her demeanor. The trial court asked defendant if Doe had not already testified about her demeanor, and defendant responded there were other questions he had: