(Super. Ct. No. 08F07864)
The opinion of the court was delivered by: Raye , P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Kaseem Jabbar Winn guilty of numerous counts of sexual offenses against three minors, and the trial court sentenced him to an aggregate term of 138 years eight months to life. Defendant appeals, claiming the court erred by imposing consecutive sentences as to two of the 12 counts against him. He also contends, and the People concede, that the abstract of judgment contains a clerical error that must be corrected. In addition, our review of the record reveals the trial court failed to pronounce judgment on count eleven.
We remand for sentencing on count eleven, accept the People's concession as to the clerical error and direct the trial court to correct the abstract of judgment accordingly, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's appeal concerns events occurring on July 4, 2003. We limit the facts to those relevant to his claim.
In September 2002 defendant married the mother of N.D., S.D., and F.D. Between September 2002 and August 2003 defendant committed various sex crimes against all three children.
On July 4, 2003, S.D. attended a neighborhood party, where she consumed several alcoholic drinks. At some point that evening, S.D. started feeling light-headed and sat down outside. Defendant saw her, told her she was drunk, and instructed her to go inside the apartment so that her mother (who was not present) would not see that she had been drinking. S.D. eventually went inside and lay face down, fully clothed, on the bed in her bedroom. Defendant, completely naked, entered S.D.'s bedroom. He got on top of S.D., held her down, and put his hand underneath her shirt and on her breast. S.D. told defendant to stop and struggled to push him off of her. Defendant used his other hand to push her shorts down and push her underwear to the side, and forced his penis into her vagina. The entire incident lasted approximately five minutes.
Defendant was charged with the July 4, 2003, rape of S.D. (Pen. Code, § 261, subd. (a)(2) -- count one; further statutory references are to the Penal Code); lewd and lascivious act on a child (S.D.) aged 14 or 15 years by a defendant at least 10 years older than the child, also committed on July 4, 2003 (§ 288, subd. (c)(1) -- count two); six counts of lewd and lascivious acts upon a child (F.D.) under the age of 14 (§ 288, subd. (a) -- counts three, four, five, six, seven, and eight); two counts of rape by a defendant 10 years older than the victim, a child (F.D.) under the age of 14 (§ 269, subd. (a)(1) -- counts nine and ten); lewd and lascivious act upon a child (N.D.) under the age of 14 (§ 288, subd. (a) -- count eleven); and lewd and lascivious act upon a child (N.D.) aged 14 or 15 years by a defendant at least 10 years older than the child (§ 288, subd. (c)(1) -- count twelve). It was alleged that defendant committed the offenses in counts one, three through eight, and eleven against two or more victims. (§ 667.61, subd. (e)(5).)
Defendant's jury trial commenced in May 2010. The jury convicted him on all counts and found the section 667.61 allegations true.
On July 30, 2010, the court sentenced defendant to an aggregate term of 138 years eight months to life as follows: the upper term of three years for count two, plus a consecutive eight-month term (one-third the middle term) for count twelve, for an aggregate determinate term of three years eight months; consecutive terms of 15 years to life for counts one, three, four, five, six, seven, eight, and nine; and a ...