P. v. Smith CA2/6

Filed 5/20/13 P. v. Smith CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B237750 (Super. Ct. No. 2010014286) Plaintiff and Respondent, (Ventura County)

v.

JAMES CRISMON SMITH,

Defendant and Appellant.

James Crismon Smith appeals a judgment following conviction of committing a lewd act with a child, attempting to dissuade a witness, and misdemeanor disobeying a domestic relations court order, with findings of a prior serious felony and strike conviction. (Pen. Code, §§ 288, subd. (a), 136.1, subd. (a)(2), 273.6, subd. (a), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)1 We affirm. FACTS AND PROCEDURAL HISTORY Smith and Brandy A. were married and had three minor children, including daughter B. The family lived with Smith's mother in Oxnard. In 2008, Smith and Brandy A. separated, and in November 2009, they divorced. During an argument in 2008, Smith assaulted Brandy A. Brandy A. was then pregnant and suffered injuries from the assault. Smith was charged and convicted of

1 All further statutory references are to the Penal Code unless otherwise stated.

spousal battery and sentenced to prison in February 2009. The sentencing court also issued a restraining order that stated that Smith "[m]ust not attempt to or actually prevent or dissuade any victim or witness from attending a hearing or testifying or making a report to any law enforcement agency or person." When Brandy A. explained to B. that her father would be incarcerated for several years, B. looked frightened and stated that "her daddy made her touch his pee- pee." Several weeks later, B. asked her mother to explain "the white stuff" regarding her father's "pee-pee." Brandy A. informed B.'s school counselor and later police officers regarding B.'s statements. On February 12, 2009, B. stated during a police interview that she touched her father's penis and engaged in oral copulation. She also stated that her father played "nasty" movies on the computer. The police interview was recorded and played at trial. B. testified that when she was 10 or 11 years old, Smith touched her "in the wrong way" and that she touched his penis. B. described two incidents of molestation that occurred in her parents' bedroom and in the bedroom she shared with her brother. B. also stated that Smith showed her "nasty" movies on the television and on the computer. She added that he threatened to harm her if she informed anyone. During Smith's confinement for spousal battery, he telephoned his mother and stated that he was "scared to death" that the prosecutor would charge him with child molestation. Smith asked his mother "to dodge" service of a subpoena and advise Brandy A. not to disclose her address when applying for welfare benefits. He also asked his mother to advise Brandy A. to obtain a post office box to conceal her whereabouts. In later telephone calls, Smith's mother informed him that Brandy A. had moved to Arizona, and then Needles, California. Smith asked his mother to ask Brandy A. to videotape B. "saying [the molestation] did not happen." During another telephone call, Smith stated that his prosecution could not occur if the victim does not "show up."2