Filed 7/9/13 P. v. McPherson CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B245542

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA387815)
         v.

RICKEY MCPHERSON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I.
Sandoval, Judge. Affirmed.


         Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.


         No appearance for Plaintiff and Respondent.
       Defendant and appellant, Rickey McPherson, appeals from the judgment entered
following a jury trial which resulted in his conviction of two counts of willfully and
lewdly committing a lewd or lascivious act upon a 14- or 15-year-old child (Pen. Code,
§ 288, subd. (c)(1))1 and one count of unlawful sexual intercourse with a minor who was
more than three years younger than he (§ 261.5, subd. (c)). The trial court sentenced
McPherson to three years four months in prison. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts.
              a. The prosecution’s case.
       K.J., who was 19 years old at the time of trial, testified that McPherson married
her mother when K.J. was 10 or 11 years old. After the marriage, McPherson, K.J.’s
mother (Paris) and K.J.’s younger sister (Z.J.) lived in a two-bedroom apartment. K.J.
shared a room with her sister.
       One afternoon when K.J. was 11 years old, she, her sister and McPherson were all
lying on her mother’s bed watching a movie. McPherson “sort of” kicked K.J., then
started rubbing her upper thigh with his foot. McPherson’s actions made K.J.
uncomfortable and she asked him why he was doing it. McPherson did not answer.
However, when K.J.’s sister decided to leave the room and go outside, McPherson moved
closer to K.J. and began to touch her upper thigh and vaginal area with his hand.
McPherson removed K.J.’s sweat pants and underwear, pulled down his own pants and
underwear, put on a condom and had sexual intercourse with K.J. K.J. indicated that “[i]t
hurt, and [she] didn’t like it at all” when McPherson placed his penis in her vagina. As
he was having sex with her, K.J. heard McPherson “breathing hard” and, although it was
causing her pain, she did not say anything. When McPherson finished, he “got off of
[K.J.]” and “told [her] to go wash up.” K.J. went into the bathroom and, as she was
washing her vagina with soap and a wash cloth, she noticed she was bleeding. After
washing herself, K.J. went to her room and “laid down . . . [b]ecause [she] didn’t feel like

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

                                             2
doing nothing else.” K.J. did not tell her mother, Paris,2 what had happened because she
was out late that evening and did not get home until after K.J. was asleep. K.J. also
“didn’t know what [her mother] would do to [McPherson]” and “didn’t know what would
happen to [her] and [her] sister.” K.J. was afraid that if she told her mother about the
abuse, Paris might hurt McPherson and she and her sister would be taken from her. K.J.
and her sister would be “left alone.”3 K.J. did not tell her sister what had happened
because she did not want Z.J. “to have to worry about [it].”
       McPherson continued to have sex with K.J. approximately every other week. He
would do so when K.J.’s mother was not at home and her sister was not around.
McPherson had sex with K.J. in her mother’s room, in her room, in the living room and
in a closet. On one occasion when he had sex with K.J. in her room, McPherson told her
to get on top of him. McPherson held K.J. by the waist until he had finished. As he then
left the room, McPherson told K.J. not to tell anyone what had happened. K.J. did not
tell anyone because she “didn’t know who to tell.”
       On at least one occasion, McPherson asked K.J. to get his shoes from the closet in
the living room where he kept his clothes. K.J. found one shoe and, as she was looking
for its mate, felt McPherson move in behind her. K.J. felt McPherson’s erect penis as he
began to “rub[]” her vagina. He then removed her pants and underwear, as well as his
own and, while she was lying on her stomach, had sexual intercourse with her “on top of
clothes” in buckets on the closet floor. On other occasions, McPherson asked K.J. to get
him different articles of clothing and would then follow her into the closet and sexually
assault her.
       One day McPherson came to the door to K.J.’s room and asked her if she would
like to make $5. McPherson would sometimes pay K.J. and her sister $5 to iron his

2
      We refer to K.J.’s mother by her first name not out of any disrespect, but to avoid
confusion.
3
      K.J.’s mother had been “molested and raped as a little girl” and she had told K.J.
and her sister, since they were “little girls,” that they should tell her if anyone ever
touched them inappropriately.

                                             3
clothes and, believing that that was what he wanted, K.J. said she would like to make the
money. However, when she walked into McPherson’s and her mother’s bedroom, K.J.
noticed that “[t]he front of [McPherson’s] pants [were] sticking up.” McPherson then
began to touch K.J. on her vagina and ultimately had sexual intercourse with her while
she was lying on her stomach on the bed. After he had finished, McPherson gave K.J. $5.
       When McPherson first began to have sexual intercourse with K.J., he did so
approximately once a week. However, as time went on, “it started to slow down” and he
had sex with K.J. approximately every other week until she was 15 years old. At that
time, it “slowed down” even more. When K.J. was 15 and 16 years old, McPherson had
sex with her approximately once a month. When K.J. turned 17, she went to Missouri,
where she stayed for one year. Although McPherson also went to Missouri, he did not
approach K.J. there.
       At some point, K.J. realized that what McPherson had been doing to her was
wrong. K.J. thought about telling someone about it, but she “didn’t know who . . . to go
tell.” K.J. was also afraid that “people [would] look at [her in] a different way [if she]
told them . . . .” However on July 24, 2011, K.J.’s mother, who had read some comments
K.J. had made on Facebook, “texted” her and asked her if McPherson had “ever touched
[her].” At first, K.J., who “wasn’t ready to tell her” mother about the incidents, indicated
that he had not. Then, a short time later, K.J. began to cry and she “texted her [mother]
back” and told her she had lied when she answered the question her mother had asked
earlier and “it was true.” K.J.’s mother then came into the room and began to yell at K.J.,
asking, “He did what[?] He did what[?]” and “Why didn’t you tell me[?] Why didn’t
you tell me[?]” K.J., who at this point was sitting next to her sister on the bed, told her
mother that she did not know why she had not told her.
       When K.J.’s mother confronted McPherson, he denied having inappropriately
touched K.J. K.J.’s mother then went back into K.J.’s room and asked her how long
McPherson had been molesting her and what had happened. K.J., however, did not tell
her mother. She had “never seen her [mother] like that . . . . Her eyes [were] bloodshot
red, and [K.J.] didn’t know what she was going to do.” K.J.’s mother then went back into

                                              4
her bedroom, where McPherson was getting dressed. There, she took out a gun. She did
not, however, have the clip and K.J. could see McPherson and her mother “fighting over
the clip for the gun.” When K.J.’s mother came back into K.J.’s room she was still
holding the gun. McPherson left the apartment and K.J.’s mother then called the police.
        Police officers interviewed K.J. and her mother separately. K.J. told an officer
what had happened and, at a later time, spoke about the incidents in detail with an Officer
Bowser. She told the officer the truth to the best of her recollection.
        When questioned about dates and times these incidents had occurred, K.J. could
not remember. At trial, she stated, “I don’t remember the dates, the months, or none of
that. I just know that it happened.”
        Z.J. is K.J.’s younger sister. She was 18 years old at the time of trial. July 24,
2011, the day K.J. disclosed that McPherson had been sexually abusing her, was Z.J.’s
17th birthday. That evening, Z.J. heard her mother ask K.J. a question and K.J. respond
“that [their] dad [had] touched her[.]” Z.J. then heard her “mom and . . . dad [get] into
it.” Z.J. saw K.J. start to cry and heard her tell their mother she “was sorry.” At that
point, Z.J. went into another room because she “didn’t want to hear it or see anything.”
She did, however, hear her mother ask McPherson if he had done it, McPherson say “no”
and her sister cry.
        Z.J. believed McPherson had been a good stepfather and had treated the two girls
equally. On July 24, 2011, Z.J. spoke to police officers, then later spoke with an Officer
Bowser. When Bowser asked Z.J. if she had ever observed anything unusual, she told the
officer, “No, except that when sometimes I would be outside and playing in the front with
. . . neighborhood kids and I tried to go in the house . . . , the door would be
lo[c]ked . . . .”
        Z.J. had, on at least one occasion, seen McPherson’s “private part.” When she
was in the 7th or 8th grade, she was in his closet looking for his shoes when he
approached her with the “fly part” of his pajama pants open. Z.J. told McPherson that
she could see his penis and he “went out to go fix hisself.”



                                               5
       At the time of trial, Z.J. and K.J. were speaking with each other almost every day.
They did not, however, ever talk about what McPherson had done to K.J.
       Los Angeles Police Department Officer Paul Bowser was the investigating officer
in McPherson’s case. During his interview with K.J., she told the officer that McPherson
had begun to sexually abuse her when she was 11 years old and that the abuse occurred in
different parts of the house, including her mother’s bedroom and McPherson’s closet.
       Bowser spoke with McPherson4 twice on August 15, 2011.5 The officer first
interviewed McPherson in his office at the police station and, after advising McPherson
of his Miranda6 rights, asked him questions regarding the allegations which had been
made by K.J. In response, McPherson denied having had sexual intercourse with K.J.
until after she had turned 18 and, even then, he indicated “it was for a very short amount
of time.” McPherson stated it occurred the first time when “they were both on the . . .
bed and [Z.J.] . . . was outside the house and he said there was something that [K.J.] was
doing and he told [her] that it was . . . arousing him.” He asked K.J. “what she wanted to
do about it. And they had this back and forth, and he got up and . . . put his penis in her
vagina for a very short amount of time. . . . [Z.J. then] called him on his phone because
she was outside trying to get inside of the house. . . . [A]t that point . . . [McPherson told
K.J.] to go and let [Z.J.] into the house and so they stopped doing what they were doing.”
Also during the first interview, McPherson told the officer that his wife, Paris, had told
him and K.J. that her, Paris’s, stepfather had tried to molest her. According to
McPherson, K.J. “took it and ran with it.”
       The second interview occurred several hours later at a different police station.
Before questioning McPherson, Bowser again advised him of his Miranda rights.


4
       It had been stipulated McPherson was born on December 21, 1958.
5
       Both interviews were videotaped and DVD’s of the interviews were played for the
jury. Between the interviews, McPherson took a polygraph test. The fact that he took the
test and its results were not admitted into evidence.
6
       Miranda v. Arizona (1966) 384 U.S. 436.

                                              6
McPherson then told Bowser that, when K.J. was 13 or 14 years old, “he had sex with her
approximately two times, and from the age of 13 or 14 to 16, he had sex with her six
times.” McPherson told Bowser that he did not know if he was the first person who had
ever had sex with K.J., but that on the first occasion “he had a hard time getting his penis
into her vagina.” On each occasion, they had sex on the foot of McPherson’s bed. He
never had sex with K.J. in his closet and he never told her “not to tell anybody.”
       Dr. Mitchell Eisen is a psychologist who specializes in the study of “memory,
memory for the events in our lives, eyewitness memory and suggestibility.” He had
previously testified as an expert in the area of memory with regard to child sexual abuse.
Eisen had not interviewed K.J. or any of the other witnesses in this case. He was there to
testify regarding principles of memory “in the abstract.” Eisen testified about “child
sexual abuse accommodation syndrome.” He explained that “when [a child is] in a secret
situation with an adult who’s telling [them] this is how the world works, [that child] will
often feel helpless in the face of this and will tend to accommodate” the adult. If the
abuser is a close family figure, many children will delay disclosing abusive behavior. A
child does not know what goes on outside of his or her family and will assume that what
is happening is normal. Accordingly, “delay [in disclosing] is very common.” In fact,
“most kids never tell.” In addition, many children recant. Eisen stated, “It is very
common for kids to be delayed and inconsistent in their disclosing and [then] outright
take it back.” According to Eisen, it is fairly universally agreed that “most people who
have experienced child sexual abuse do not tell about it.” When victims do disclose
abuse, it is usually “retrospective[ly,]” as adults.
              b. Defense evidence.
       Paris McPherson is married to McPherson and is K.J.’s mother. She has another
daughter, Z.J., and she loves them all. Paris described herself as “not the easiest person
to get along with.” She is, however, a “no nonsense” person and would not lie for her
daughter or her husband.
       Paris, who is an LVN who works “in the psychiatric field with children 5 to 12
years old,” had been sexually molested by her stepfather when she was 12 years old.

                                               7
Although she had told her two daughters that it had happened, she had never gone into
detail regarding the incident because she felt that it was not appropriate to do so.
However, she had frequently asked her daughters if they had been inappropriately
touched “because of [her] experience.”
       In the several months before she graduated from high school, K.J. had been
extremely difficult. She had frequently complained about McPherson and, according to
Paris, “it was just horrible in [her] house.”
       In June 2011, after K.J.’s high school graduation, Paris’ stepmother asked Paris
what she would do if she discovered that K.J. and McPherson had been having sexual
encounters. Paris at first believed that her stepmother was “out of [her] . . . mind” and
she told her stepmother that she would kill them both and “they both knew that.” After
that, Paris and her stepmother “just left that conversation alone.” Things then “exploded”
on Z.J.’s birthday in July.
       When Paris came home from work on July 24, 2011, K.J. began to complain to her
about McPherson. Paris then went onto Facebook and noticed that K.J. had placed “all
this stuff on there about [how she] hate[d] this house, this, that and the other.” Paris went
to speak to K.J. about the postings, but felt herself getting angry. She decided to instead
go into the living room and send K.J. a text message asking her what was wrong with her.
In the meantime, McPherson came home. Paris asked him if he knew what was going on
with K.J. and he indicated he did not. Paris then sent K.J. a text message in which she
asked K.J. if McPherson had been “touching [her.]” At first K.J. sent to Paris a text
message in which she said, “No, nah, he ain’t touching me.” K.J. then sent Paris a
second text message in which she said, “Momma remember that question you asked me
earlier[?] . . . I lied before. He did.”
       Paris jumped up from the couch, went into K.J.’s room and repeatedly asked her
what McPherson had done to her. K.J., who was sitting on the floor just repeatedly told
Paris she was sorry. Paris responded by asking K.J., “What are you sorry about[?] You
need to tell me what the hell happened to you right now.” When K.J. told her mother
McPherson had been touching her since she was 11 years old, Paris stated she was going

                                                8
to kill him. When McPherson then came into the room, he told K.J. to “stop lying” and
to tell her “momma the truth.” Paris pushed McPherson up against the wall, told him not
to speak to her daughter and to talk to her. Paris then left K.J.’s bedroom and went to get
her gun.
       McPherson followed Paris and, as she was attempting to place the clip in her gun,
he grabbed her hand, got hold of the clip and “took off [toward] the door.” Paris went to
the kitchen to get her butcher’s knife, intending to “cut” McPherson. However, before
she could catch up with him, a neighbor, who had heard the commotion, came into the
apartment, stood in Paris’s way and told her to calm down. At that point, Paris “came to
[her] senses a little bit.” She telephoned her stepmother, who told her to call the police.
When Paris called the police, she told the individual who answered the phone her
“daughter [had just] told [her] that [her] husband ha[d] been molesting her since she was
11 years old.”
       Several days later Paris, based on the information she had at the time, concluded
McPherson and K.J. had not had sex until K.J. was 18 years old. Paris did not believe
McPherson had been molesting K.J. when she was only 11 years old. She had “found no
evidence” of abuse. Although Paris was aware of the fact McPherson had told police he
had sex with K.J. when she was 13, she believed him when he told her that he and K.J.
did not have sex until K.J. was 18. Paris believed when McPherson told police he had
been molesting K.J. since she was 13 he was speaking as a “broken” man, one who had
“shut down.” When Paris watched the video tapes of Bowser’s interviews with
McPherson, she thought McPherson looked “[l]ike a person [who] just [could not] take it
no more, that’s just tired, that’s just [willing] to give up, that’s just like it’s whatever,
okay, let’s get it over with.”
       Paris acknowledged “in the last couple of months leading up to when the police
c[a]me to [her] house that [K.J. had been] acting out.” She had been “wearing
provocative clothing” and “leaning over in front of [McPherson].” In addition, it had
appeared to Paris that K.J. had had a problem with McPherson “since she was a child”
and she “had it out for him.” Paris was of the opinion K.J. believed she and K.J.’s father

                                                9
“should be together” and K.J. had acted antagonistically “with [her] first husband” as
well as McPherson. K.J. had not, however, accused Paris’s first husband of sexually
molesting her. Finally, Paris had discovered that K.J. had been “sleeping around with
[her] friend’s [17-year-old] son.” Paris attributed much of K.J.’s behavior to the fact she
was having that affair. Paris did not believe K.J.’s testimony McPherson had been
having sex with her since she was 11. Paris believed she and K.J. were “very much
alike” and K.J. was simply “imitating [Paris’] life.”
       Ethel Rasdale is a support services manager at Kedren Community Mental Health
Center. Her duties there include “transportation, environmental services, and
procurement.” Rasdale knows McPherson because he is a “transportation driver” at the
center and she is his supervisor. Rasdale has been signing McPherson’s time sheets since
at least 2004. By reviewing McPherson’s time sheet from January 2004, Rasdale could
tell he had consistently worked several hours of “overtime” each day that month. The
time sheet showed he had worked 104 hours. McPherson’s regular hours were from
6:00 a.m. to 2:30 p.m. However, he frequently worked up to four additional hours. This
pattern of working overtime continued until 2008, when the center hired additional
drivers. From that time on, McPherson’s time sheets indicated he usually worked a
regular eight-hour shift.
              c. Rebuttal.
       On the day Officer Bowser first met Paris, K.J. and Z.J., Paris told Bowser that
“she was having a lot of problems with [K.J.]” and K.J. had repeatedly told Paris that she
wished to move to St. Louis. Bowser had told Paris that he thought it was “a good idea”
because K.J. “had disclosed all . . . of this sexual abuse at the hands of [McPherson], and
[the officer] thought it was a good idea for her to move out there [to get] some separation
from him.”
       2. Procedural history.
       Following a preliminary hearing, on February 3, 2012 an information was filed in
which McPherson was charged in the first count with the continuous sexual abuse of a
child under the age of 14 years, a serious felony (§§ 288.5, subd. (a), 1192.7, subd. (c),

                                             10
1203.066, subd. (a)(8)); in the second and third counts with committing a lewd act upon a
child who was at least 10 years younger than McPherson, a felony (§ 288, subd. (c)(1));
and in the fourth count with committing unlawful sexual intercourse with a minor, not his
spouse, who was more than three years younger than McPherson, a felony (§ 261.5,
subd. (c)). At arraignment, McPherson entered pleas of not guilty to each of the alleged
counts and denied all the special allegations.
         At proceedings held on July 30, 2012, the prosecutor indicated McPherson faced a
term of 18 years in prison. The prosecution had offered him a term of 12 years in
exchange for a plea, however McPherson had rejected the offer and made no counter-
offer.
         Prior to jury selection, counsel for the victim requested that a “child sexual victim
accommodation witness” be allowed to testify. After hearing argument by both parties,
the trial court determined it would allow the testimony. The court indicated, although the
victim was 19 years old at the time of trial and the alleged incidents began when she was
either 11 or 14 years old, such an expert might assist the jury in understanding why the
victim had not reported the abuse sooner. The court continued, “[Either party] may ask
[the expert] . . . a hypothetical question, but [the expert is] not going to opine on the
ultimate issue, but simply give the jury some expert testimony that may aid them in their
decision.”
         Defense counsel next indicated the prosecution might attempt to present evidence
that McPherson had some sexual contact with this victim when she was 18 years old,
“when she was an adult.” Counsel indicated the prosecutor had attempted to bring it “out
[at] the prelim, [and] we shut it down, the judge struck it.” Defense counsel continued, “I
want to make sure that we’re not going to discuss . . . that it may have happened when
she was an adult. . . . I don’t think that’s relevant.” The trial court responded, “Based on
the dates referenced in the four counts, it doesn’t appear to me that the D.A. is going to
get into that.”
         During her opening statement, the prosecutor indicated that during an interview
with an officer McPherson had denied any improper conduct with the victim, then said

                                               11
“well, yeah, I had sex with her, but only when she turned 18. I did not have sex with her
before that.” Defense counsel requested a “sidebar” and stated the parties had agreed
that if some kind of contact had occurred when the victim was 18, “it was not relevant
and . . . was not going to be introduced in this trial.” McPherson’s counsel then moved
for a mistrial. The prosecutor indicated, although defense counsel had given her “a list of
her objections,” that did not mean that she, the prosecutor, had agreed to all of them. The
prosecutor stated that under “the rule of completeness when [defense counsel asked for
the discussion of the sexual allegations with the officer] to come in, then it [all should]
come[] in whether [McPherson] says that it didn’t happen at all, which he does
sometimes, or whether he ultimately says it only happened when [the victim] was 18.”
The trial court stated it would give defense counsel a final ruling on her motion the
following day, after it had reviewed Evidence Code section 356.7 In the meantime, the
trial court directed both parties to “stay away [from McPherson’s statement he only had
sex with the victim after she had turned 18] for the rest of [their] opening statement[s].”
The trial court indicated defense counsel’s motion was, at that time, denied. However, if
it found “there [was] some prejudice that [c]ould only be cured by mistrial, [it would] do
that or,” at the very least, “admonish the jury.”
       After K.J. completed her direct testimony, the trial court again considered defense
counsel’s motion for a mistrial. After hearing argument by both parties, the court
determined the comment made by the prosecutor during her opening statement, that
McPherson had sex with the victim when she was 18 years old, was not so prejudicial
that the only remedy would be to declare a mistrial. Instead, the court indicated it would
“issue an admonishment to the jury to ignore that issue.” The court continued, “There
will be no evidence admitted concerning that issue, there will be no testimony concerning
that issue––that statement made by the D.A. in her opening statement. I’ll admonish the



7
       Evidence Code section 356 provides in relevant part: “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the whole on the
same subject may be inquired into by an adverse party . . . .”

                                             12
jury to ignore that and not to consider it for any purpose in this trial. That’s the court’s
ruling.”
       After the prosecution presented all of its evidence, defense counsel made a motion
for dismissal of the action pursuant to section 1118.1, arguing the evidence presented by
the People had been insufficient to show McPherson committed the alleged crimes. The
trial court denied the motion, indicating the People had “submitted sufficient evidence to
overcome an 1118.1 motion.”
       After the evidence was presented, the trial court instructed the jury. One of the
instructions stated: “Now[,] during the trial, the testimony of Dr. Eisen was admitted for
a limited purpose. . . . In addition, you’ve heard testimony or evidence that the defendant
had sex with the [victim, K.J.], when she was 18, the age of majority. That sexual
contact, if you believe that it occurred, is not at issue in this case and the defendant is not
being charged with any crime arising from that contact. Do not draw any inference
about his guilt or innocence regarding the charges in this case based on any contact he
may have had when she was 18.”
       On November 2, 2012, after the trial court had concluded its instructions and the
parties had given their arguments, the jury retired to deliberate. McPherson then waived
his right to be present for any readback of testimony or questions submitted by the jury,
indicating he wished to be present only for the reading of the verdicts.
       Later that day, in the presence of both defense counsel and the prosecutor, the trial
court indicated the jury had requested a copy of K.J.’s testimony. The trial court
indicated it would “see if [it could] . . . narrow” the request. The court continued, “I’m
going to ask them [if they] want direct examination, cross-examination or both and see
what they say.” After a time, the jury responded. The trial court indicated “they
want[ed] both direct and the cross-examination.” Accordingly, the court directed the
court reporter to prepare the testimony and, as previously agreed to by the parties, go
“into the jury room and read that testimony to the jury.”
       The following Monday, November 5, 2012, the trial court indicated the court
reporter had “prepared the proffered readback” and that both counsel had been given the

                                              13
opportunity to review it. The court reporter then read the testimony to the jury in the jury
room.
        On the afternoon of November 5, the jury indicated it had reached verdicts. The
foreperson handed the verdict forms to the bailiff who, in turn, handed them to the trial
court. After the trial court reviewed the forms, it addressed the foreperson and stated,
“Are you telling me that the jury has reached no verdict on count 1?” The foreperson
responded, “That is correct. We did not reach a unanimous verdict on count 1. As per
your instructions, we filled out the forms, [for the counts for which] we did reach
unanimous [verdicts] and handed you back the other sheets blank.” The following
colloquy then occurred: “The court: Is the reason that you didn’t reach a verdict on
count 1 because you were hung on that count? [¶] [The foreperson]: Hung, meaning?
[¶] The court: Unable to reach a unanimous––the 12 of you could not agree on one
verdict or the other? [¶] [The foreperson]: That is correct. [¶] The court: I know that
you’ve been deliberating since late Friday. Were I to give you additional time, do you
think that [with] further consideration by you as a jury, you might be able to reach a
verdict on count 1? [¶] [The foreperson]: As the foreperson you want me to speak for
the jury? [¶] The court: Exactly. [¶] [The foreperson]: I do not think so. [¶] The
court: Okay. Is there anything––I know that you asked for readback, is there anything
the court can do in aid––in facilitating [the] . . . reaching [of] a verdict either way on
count 1? [¶] [The foreperson]: I think the jury feels that we have all the evidence that
we needed . . . to come to a verdict. [¶] The court: . . . [D]o the other jurors feel the same
way about that? Okay. Everyone appearing to nod in agreement. [¶] I do note that we
have verdicts on counts 2, 3 and 4. Let me hand those verdicts to the clerk who will read
them into the record.”
        The court clerk indicated that the jury had found McPherson “guilty of the crime
of a lewd act upon a child on or between February 22nd, 2007 and February 21st, 2008,
in violation of . . . section 288[, subdivision] (c)(1), a felony as charged in count 2 of the
information.” The jury had also found McPherson “guilty of the crime of a lewd act
upon a child on or between February 22nd, 2008 and February 21st, 2009, in violation

                                              14
of . . . section 288[, subdivision] (c)(1), a felony as charged in count 3 of the
information.” Finally, the jury found McPherson “guilty of the crime of unlawful sexual
intercourse on or between February 22nd, 2009 and February 21st, 2010, in violation
of . . . section 261.5[, subdivision] (c), . . . as charged in count 4 of the information.” The
jurors then each indicated that those were their verdicts.
         The trial court again addressed the foreperson and stated, “I’m going to ask you
for the ratio on the voting of count 1, without telling me [how many were] for guilty or
not guilty, if you can just give me the numbers the last time you voted . . . .” The
foreperson indicated the vote had been “roughly 50/50” and the vote had been fairly
evenly split each of the approximately five times the jury had voted. The trial court then,
after indicating it was unlikely further deliberations would result in a verdict, declared a
mistrial as to count 1.
         Although defense counsel argued McPherson, who had been free on bail
throughout the proceedings, should remain so until sentencing, the trial court indicated it
was its practice to remand defendants once they had been found guilty of felony crimes.
Sentencing was then set for November 21, 2012, or within 20 days of that date.
         At proceedings held on November 21, 2012, the prosecutor indicated the People
did not intend to retry McPherson on count 1, the continuous sexual abuse of a child
under the age of 14 years, a serious felony. The trial court, accordingly, dismissed the
count.
         After hearing argument by both counsel and comments from the victim’s mother,
Paris McPherson, and grandmother, Lorene Galbert, the trial court indicated that, with
regard to elements in aggravation, it had found the victim was vulnerable and the
defendant “took advantage of a position of trust and confidence to commit the crime[s].”
In mitigation, the trial court noted McPherson “ha[d] no prior record” and “arguably
voluntarily acknowledge[d] wrongdoing during the interview at the police station . . . .”
The court then denied probation and sentenced McPherson to the mid-term of two years
in prison for committing a lewd act upon a child at least 10 years younger than he as
alleged in count 2. For his conviction of count 3, committing a lewd act upon a child at

                                              15
least 10 years younger than he, the trial court sentenced McPherson to a consecutive term
of one-third the mid-term, or 8 months in state prison. With regard to count 4,
McPherson’s conviction of committing unlawful sexual intercourse with a minor more
than three years younger than he, a felony, the trial court imposed a consecutive sentence
of one-third the mid-term, or 8 months in prison.8 In total, McPherson was sentenced to
three years four months in prison.
          After awarding McPherson presentence custody credit for 27 days actually served
and 4 days of good time/work time, or 31 days, the trial court imposed a $240 restitution
fine (§ 1202.4, subd. (b)), a stayed $240 parole revocation restitution fine (§ 1202.45), a
$120 court operations assessment (§ 1465.8, subd. (a)(1)), a $90 conviction assessment
(Gov. Code, § 70373), and a $300 “sex offender fine” (§ 290.3). In addition, the trial
court ordered McPherson to register as a sex offender within five days of his release from
prison.
          McPherson filed a timely notice of appeal on November 21, 2012.
                                          CONTENTIONS
          After examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent review of the
record. By notice filed April 12, 2013, the clerk of this court advised McPherson to
submit within 30 days any contentions, grounds of appeal or arguments he wished this
court to consider. No response has been received to date.
                                      REVIEW ON APPEAL
          We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)




8
      Although in this case the prosecutor charged the violation of section 261.5,
subdivision (c) as a felony, the offense is a wobbler and may be charged as either a felony
or misdemeanor. The trial court noted that the sentence for count 4 could be served in
county jail.

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                            DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                   ALDRICH, J.


We concur:


             KLEIN, P. J.




             CROSKEY, J.




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