Super. Ct. Nos. 07F7995, 09F5629
The opinion of the court was delivered by: Robie ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Robert Michael Rodeski molested the five-year-old daughter of his live-in girlfriend, and a jury found him guilty of committing a forcible lewd act on her. Based on this conviction, the court revoked his probation in an earlier drug case and sentenced him to prison for a total of 14 years.
Defendant appeals, contending the court erred in: (1) admitting evidence of his prior sexual misconduct; and (2) imposing a full, consecutive sentence on the sex offense. We conclude the trial court erred in failing to impose one-third the midterm on the subordinate offense and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A Defendant's Lewd Act Against S.
On the morning of July 15, 2009, S. was playing the "tooth fairy" game in her bedroom. The game involved S. "jump[ing] off [her] bed and tr[ying] to fly." Defendant came into her bedroom, "grabbed [her] hair and thr[e]w [her] on the ground." He "pulled down his pants and showed [her] his peepee." He then "humped [her] on [her] back."
S.'s mother woke up to S. screaming. She brought S. into her bed and asked her what was wrong. S. said defendant had "grabbed her by her hair and thrown her on the ground." She did not tell her mother about the molestation because she was afraid.
S.'s mother confronted defendant, who was asleep on the couch. He was under the influence of drugs and was "out of it."
S. went to a neighbor's house. She told the neighbor defendant had "grabbed her by her hair," "thrown her down on the floor hard," "pulled his pants down," and "'waved his wienie in [her] face.'" The neighbor called police.
B Defendant's Prior Sexual Misconduct Against His Sisters
Defendant has two sisters: J., who is six years younger than he, and R., who is four years younger than he. J. contacted police when she heard defendant had molested S., ...