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Verdant Beginners

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Yefim Alekseev
Yefim Alekseev

Sex Video With A Stranger



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sex video with a stranger



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Mr. Emory, 21, an aspiring singer and songwriter, became a household name here last month when he edited a video to make it appear that elementary school children in a local classroom were listening to him sing a song with graphic sexual lyrics. He then showed the video in a nightclub and posted it on YouTube.


Tony Tague, the Muskegon County prosecutor, stands firmly in the first camp: He charged Mr. Emory with manufacturing and distributing child pornography, a crime that carries a penalty of up to 20 years in prison and 25 years on the sex offender registry.


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We hold in part that the word "stranger" in Penal Code section 1203.066 has no technical meaning peculiar to the law and [42 Cal. App. 4th 601] therefore that the trial court did not err in refusing an instruction which purported to define the word.


On February 23, 1994, an information was filed in Stanislaus County Superior Court charging appellant Hilton Forbes fn. 1 with commission of a lewd or lascivious act on a child under the age of 14 (Pen. Code, fn. 2 288, subd. (a), count I) and penetration with a foreign object of the genital opening of a child under the age of 14 and more than 10 years younger than the defendant ( 289, subd. (j), count II). As to each count, it was alleged appellant was a stranger to the victim within the meaning of section 1203.066, subdivision (a)(3). Appellant pleaded not guilty and denied the special allegations. fn. 3


[1a] In a novel argument, appellant contends the trial court erred by failing to give his requested instruction setting forth a definition of the word "stranger" in conjunction with the section 1203.066 allegation of count I. fn. 11 Appellant says "stranger" has numerous meanings, many of which are contradictory. Relying on settled principles of statutory construction, he [42 Cal. App. 4th 602] asserts the trial court was obligated to resolve the ambiguity in his favor. Since some of the dictionary definitions of "stranger" favor appellant's position that he was not a stranger to Cynthia T., the victim, he concludes that "the trial court should have instructed with a definition that was reasonably favorable to appellant."


The definition in appellant's requested instruction read: "A stranger is a person with whom one is unacquainted, such as an intruder into the house of another." During a discussion of this instruction, the trial court noted that the dictionary contained more than one definition of "stranger" and asked, "[W]hich definition are we going to get?" This ensued:


"Mr. Maner: Maybe we're creating a problem that we don't have to. Maybe a better solution is to wait 'til they ask and then do it. They may not ask. Also, Your Honor, I've got case law that says that with words of generally common knowledge -


"The Court: A stranger is a term, a common term, I mean, everyone knows what a stranger is. You can argue that he wasn't a stranger. And Mr. Maner can argue that he was a stranger. The, the-I mean, based on the way the testimony goes, it could be found that he was a stranger. On the other hand, I suppose you could argue that because she had met him that night he wasn't a stranger. I don't think there's any need to define the term to the jury in this case. I think it's just misleading, is what I think. So I'm going to refuse that instruction."


The prosecution presented evidence that Cynthia was introduced to appellant when Terry Long brought appellant to her house on the evening in question. She had not met appellant before and did not spend time with him then, because she was playing a video game in a different room. fn. 12 During his cross-examination of appellant, the prosecutor asked whether appellant had seen Cynthia before that night. Appellant said he had never seen her before. When the prosecutor asked, "Was she a stranger to you?" appellant responded, "Yes." The prosecutor subsequently argued to the jury that appellant was a stranger to Cynthia, as they had not met beforehand. The prosecutor also told the jury, "So if you convict him of Count I, you ask yourselves, 'Was he a stranger?' Everybody agrees, he's a stranger. That's an easy determination to make. He says it, she says it, Long says it, why else would he introduce her to the guy." Defense counsel did not address the point in his argument.


After the jury was excused for deliberations, defense counsel again requested that the court give appellant's proposed instruction defining "stranger." The court refused. It pointed out that "stranger" is a common word and that laypersons know what a stranger is. It also found appellant's definition to be too narrow. The court offered to "take a look at it" if appellant were to propose a broader definition, but noted that appellant had not submitted anything else.


" [2] It is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may [42 Cal. App. 4th 604] reasonably permit; just as in the case of a question of fact, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in the statute." (Keeler v. Superior Court (1970) 2 Cal. 3d 619, 631 [87 Cal. Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].) However, "the rule does not 'require[] that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope-nor does any rule require that the act be given the "narrowest meaning." It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislative body].' " (People v. Anderson (1987) 43 Cal. 3d 1104, 1146 [240 Cal. Rptr. 585, 742 P.2d 1306], quoting United States v. Raynor (1938) 302 U.S. 540, 552 [82 L. Ed. 413, 420, 58 S. Ct. 353].)


[1b] In our estimation, the rule likewise does not mean that commonly understood terms must be defined for a jury. "The law is settled that when terms have no technical meaning peculiar to the law, but are commonly understood by those familiar with the English language, instructions as to their meaning are not required." (People v. Anderson (1966) 64 Cal. 2d 633, 639 [51 Cal. Rptr. 238, 414 P.2d 366].)


Myriad cases address whether certain terms and phrases must be defined for the jury. (See, e.g., People v. Estrada (1995) 11 Cal. 4th 568, 578 [46 Cal. Rptr. 2d 586, 904 P.2d 1197] [" 'reckless indifference to human life,' " as used in 190.2, has no technical meaning peculiar to law, so trial court has no sua sponte duty to define]; People v. Rowland (1992) 4 Cal. 4th 238, 270-271 [14 Cal. Rptr. 2d 377, 841 P.2d 897] ["while engaged in" need not be defined for purposes of felony-murder special circumstance as phrase is commonly understood and not used in technical sense]; People v. Williams (1988) 45 Cal. 3d 1268, 1314-1315 [248 Cal. Rptr. 834, 756 P.2d 221] [where "conspiracy" is used in common and nontechnical sense, no definition is required]; People v. Anderson, supra, 64 Cal.2d at p. 640 ["force and fear" in robbery "have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors"]; People v. Chavez (1951) 37 Cal. 2d 656, 668 [234 P.2d 632] ["perpetrate" has no technical meaning peculiar to law, so no definition required]; People v. Shoals (1992) 8 Cal. App. 4th 475, 489-490 [10 Cal. Rptr. 2d 296] ["opening" and "maintaining" a place for unlawful sale etc. of controlled substances for purposes of Health & Saf. Code, 11366 has technical meaning and must be defined]; People v. Cantrell (1992) 7 Cal. App. 4th 523, 543-545 [9 Cal. Rptr. 2d 188] ["rectal area" need not be defined in prosecution under 311.4 as it is not a technical term requiring special instruction; "What the rectal area would encompass is something for the jury to determine based on ordinary experience and general knowledge"]; People v. Smith (1987) 188 Cal. App. 3d 1495, [42 Cal. App. 4th 605] 1513-1514 [234 Cal. Rptr. 142] ["viable" has specialized meaning in context of fetal murder case and, hence, definition required]; fn. 13 People v. Pitmon (1985) 170 Cal. App. 3d 38, 52 [216 Cal. Rptr. 221] ["duress" for purposes of 288, subd. (b) has no technical meaning and can be commonly understood, so no definition required; "force" must be defined because it has a specialized meaning not readily known by average lay juror]; People v. Kimbrel (1981) 120 Cal. App. 3d 869, 872 [174 Cal. Rptr. 816] ["great bodily injury" is commonly understood phrase]; People v. Stewart (1979) 89 Cal. App. 3d 992, 999 [153 Cal. Rptr. 242] ["amenable to treatment" requires no definition in mentally disordered sex offender proceeding].) All of these cases turn not on whether the term or phrase at issue has more than one meaning, but on whether the term or phrase has a "technical meaning peculiar to the law." (People v. Anderson, supra, 64 Cal.2d at p. 640.) 350c69d7ab


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