Appeal from a judgment of the Superior Court of Riverside County, Bernard Schwartz, Judge. Affirmed as modified. (Super. Ct. No. BAF004654)
The opinion of the court was delivered by: Bedsworth, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Jaime Perez Alvarez here invokes People v. Schulz (1992) 2 Cal.App.4th 999 to support his argument the crimes he committed were not accomplished by force. We reject the argument and add our voices to what we perceive to be a chorus of disapproval of the Schulz holding.
Appellant was convicted of six counts of forcible lewd conduct on a child under the age of 14 and two counts of aggravated sexual assault arising from such conduct. Upon finding he had suffered two prior strike convictions, the trial court sentenced him to an indeterminate life term, plus 10 years. Appellant contends there is insufficient evidence that, in sexually abusing the victim, he used force above and beyond that attendant to the abuse itself. He also contends the trial court erred in applying Penal Code section 654*fn2 to his sentence, and there is insufficient evidence that one of his prior convictions qualifies as a strike. We reject appellant‟s challenges to the sufficiency of the evidence, but modify his sentence to comport with section 654. In all other respects, we affirm the judgment.
In December 2004, appellant moved in with his girlfriend and her nine-year-old daughter, Martha. The following month, Martha alleged appellant had molested her on multiple occasions after he moved in. Although Martha later recanted her allegations, she related the story that follows to investigators.
One day in December 2004, appellant approached her while they were alone in the house. He picked her up, carried her to the living room sofa and placed her on his lap. He then kissed her and tried to put his tongue in her mouth, but she resisted and attempted to push him away. Undeterred, he unzipped her pants and slid his hand underneath her underwear. Then, holding her "hard" and "tight," he inserted his finger into her vagina. The penetration was painful for Martha. She asked appellant to stop, but he refused, and she was unable to get away. Appellant stripped to his underwear and placed Martha‟s hands on his chest and erect penis. He made her grab his penis over his underwear and "pull on it." Martha generally did as told. Whenever she let go, he grabbed her hand and held it around his penis.
The second episode of molestation occurred on January 19, 2005. Once again, Martha and appellant were alone in the house when he pulled her onto his lap and began kissing her. She tried to fight him off, but he removed her pants and inserted his finger inside her vagina. Bleeding slightly, she begged him to relent. However, he took her hands and placed them on his penis over his clothes. Then he forced her to "pull on it." Although she tried to move her hands away from appellant‟s penis, he held them there and directed their movement.
Based on the December 2004 incident, appellant was charged with three counts of forcible lewd conduct on a child under the age of 14. (§ 288, subd. (b)(1).) Count 1 was premised on his kissing Martha, count 2 on the digital penetration, and count 3 on the forced fondling. The prosecution also alleged one count - count 7 - of aggravated sexual assault on a child under 14. (§ 269, subd. (a)(5).) The underlying act for this allegation was the same act of digital penetration alleged in count 2.
Appellant faced similar charges in connection with the second episode that occurred in January 2005. Counts 4 through 6 alleged forcible lewd conduct based on the kissing, digital penetration and forced fondling, and count 8 alleged aggravated sexual assault based on the digital penetration making up count 5. It was further alleged that appellant had served a prior prison term and suffered two prior serious felony convictions for purposes of the Three Strikes law and the five-year enhancement set forth in section 667, subdivision (a). The jury convicted on all counts, and following a court trial on the priors, the judge found all enhancement allegations true.
The court imposed consecutive terms of 25 years to life on counts 1 through 4 and consecutive terms of 15 years to life on counts 7 and 8. It then added 10 years for the two prior serious felony convictions, under section 667, subdivision (a). Pursuant to section 654, the court stayed counts 5 and 6. It also stayed punishment for the prior prison term, making appellant‟s total prison sentence 130 years to life, plus 10 years.
Appellant claims there is insufficient evidence to support his convictions because the prosecution failed to prove he used force above and beyond that which was necessary to ...