(Super. Ct. No. 10F02830)
The opinion of the court was delivered by: Nicholson , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Convicted of lewd acts and battery on a child and sentenced to 12 years in state prison, the defendant appeals. He contends: (1) his battery conviction must be reversed because it was a lesser-included offense of a lewd act, (2) the trial court erred by imposing unstayed terms for a lewd act and the battery, (3) the court abused its discretion by failing to state separate reasons for sentencing choices, and (4) the court improperly imposed fees, for his court-appointed attorney and for booking, without evidence of the defendant's ability to pay. We conclude that the fee for his court-appointed attorney must be stricken. In all other respects, however, we find no prejudicial error and therefore affirm the judgment as modified.
On July 20, 2009, the defendant went to his sister's home to celebrate her birthday. His sister invited the defendant to stay and sleep in her son's bed because her son was away. Sleeping in the same room were their mother and the sister's six-year-old daughter, E.R.
During the night, E.R. lay down next to the defendant. The defendant kissed her and put his hand down her pajama bottom and touched what she called her "colita." To her, the term referred to a vagina or penis. The defendant grabbed E.R.'s hand and made her hold and squeeze his penis.
Later, E.R. told her mother what had happened. E.R. told a detective that the defendant had put his hand under her pajamas and underwear and that his finger went inside her two or three times. In a sexual assault forensic examination interview, E.R. said that the defendant had touched her "colita" about four times.
The defendant denied touching E.R. or having her touch him.
The district attorney charged the defendant by information with three felony counts: a lewd act on a child by force (defendant's hand on victim's vagina; count one; Pen. Code, § 288, subd. (b)(1)); another lewd act on a child by force (victim's hand on defendant's penis; count two; Pen. Code, § 288, subd. (b)(1)); and sexual penetration (defendant's finger in victim's vagina; count three; Pen. Code, § 288.7, subd. (b)).
The defendant was tried by jury. As to count one, the jury found the defendant guilty of the lesser-included offense of lewd act on a child without force. (Pen. Code, § 288, subd. (a).) As to count two, the jury found the defendant guilty, as charged, of a lewd act on a child by force. And as to count three, the jury found the defendant guilty of the lesser-included offense of misdemeanor battery. (Pen. Code, § 243, subd. (a).)
The trial court sentenced the defendant to state prison for the middle term of six years on count one, followed by a full, separate, and consecutive middle term of six years on count two under Penal Code section 667.6, subdivision (c). For the misdemeanor battery in count three, the court imposed the time served in county jail before sentencing.
Count one of the information alleged that the defendant committed a lewd act on E.R. by force ("defendant's hand on victim's vagina"), and count three alleged that the defendant sexually penetrated E.R. ("defendant's finger in victim's vagina").
While discussing jury instructions with counsel, the trial court stated that there could be a Penal Code section 654 or unanimity issue with respect to counts one and three. The prosecutor disagreed, stating that she would argue that the defendant first touched E.R.'s vagina, then digitally penetrated her. The trial court ...