Filed 1/27/14 P. v. Beasley CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048115

         v.                                                            (Super. Ct. No. 09WF1171)

GRADY RICHARD BEASLEY,                                                 OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
                   Richard De La Sota, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance by Plaintiff and Respondent.


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              A jury convicted defendant Grady Richard Beasley of two counts of sexual
penetration of a child 10 years or younger (Pen. Code, § 288.7, subd. (b); all further
statutory references are to this code), three counts of committing a lewd act with a child
under age 14 (§ 288, subd. (a)), and one count of using a minor to model or pose for
filming sex acts (§ 311.4, subd. (c)). On two of the lewd act convictions, the jury found
defendant engaged in substantial sexual conduct with a child under 14 (§ 1203.066, subd.
(a)(8)). Defendant also pleaded guilty to possession of child pornography (§ 311.11,
subd. (a)). The trial court sentenced defendant to an aggregate term of 43 years, 4
months to life.
              After defendant appealed, and upon his request, this court appointed
counsel to represent him. Counsel has filed a brief under the authority of People v.
Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct.
1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts,
listing three potential issues, and requesting this court to undertake a review of the entire
record. We offered defendant an opportunity to file a personal supplemental brief. He
has not done so. We reviewed the record and found no prejudicial error. We therefore
affirm the judgment.


                                        ANALYSIS


              Shelby, born 1998, and Kylee, born 2004, are the daughters of Kimberly.
In early 2007 Kimberly and her two daughters began spending the night at defendant’s
home. A video camera in the bedroom Kimberly shared with defendant allowed her to
view the girls who slept in the living room. At times, while Kimberly was at work,
defendant would care for the children in his home.
              Defendant began molesting Shelby when she was eight years old. While
her mother was at work, he made Shelby touch his penis and “rub it.” Defendant also

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touched Shelby inside her vagina. During a search of defendant’s home, officers found
“numerous” items of digital media which disclosed over 10,000 images of child
pornography, including videos in which Shelby appeared. In one of these, Shelby
masturbates defendant following his instructions. In others, the videos expose views of
Shelby’s buttocks and vagina and a penis is shown against her lips.
              The record, as noted above, shows substantial evidence supporting the
verdicts.
              We also reviewed denial of defendant’s motion under section 1538.5. The
search of defendant’s home took place when officers went to his apartment to serve an
arrest warrant for his failure to appear in a misdemeanor case. The officers knew
defendant was on probation with a search condition. The search disclosed photographs
and the videos mentioned above. “Warrantless searches are justified in the probation
context because they aid in deterring further offenses by the probationer and in
monitoring compliance with the terms of probation.” (People v. Robles (2000) 23 Cal.4th
789, 795.) “When involuntary search conditions are properly imposed, reasonable
suspicion is no longer a prerequisite to conducting a search of the subject’s person or
property.” (People v. Reyes (1998) 19 Cal.4th 743, 752.)
                     Finally, we considered whether the court erred in failing to instruct
the jury sua sponte that lewd act with a child under 14 (§ 288, subd. (a)) is a lesser
offense included in violations of section 288.7. Or, in the alternative, whether trial
counsel rendered ineffective assistance by not requesting such an instruction. Although
the court is required to instruct on lesser included offenses, that requirement only applies
where there is evidentiary support for such an instruction. (People v. Breverman (1998)
19 Cal.4th 142, 162.) The evidence of defendant’s violation of section 288.7 was very
strong. Shelby was unimpeached in her testimony that defendant “often” touched her
inside her vagina. No defense evidence was presented. The evidence would not have
supported an instruction on the lesser included offense.

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                                  DISPOSITION


            The judgment is affirmed.




                                            RYLAARSDAM, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




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