Error and/or relief
There was insufficient evidence to support the conviction of aggravated sexual assault by sexual penetration under section 289. The One Strike law applies only to certain offenses. The offense resulting in conviction of Count 18 is not one of those offenses, and the One Strike Sentence for that count is modified accordingly.
First Holding:
Section 289 defines various terms pertaining to the conduct it describes as a crime. [Gary note: you just witnessed a little adjustment of precise language to maintain a “G” rating for this movie. If you have an issue involving this section, read it carefully for its definitions. In this case, the conduct in question did not meet the definition for violation of this section.]
Authority:
PEN 289(k)
Second Holding:
When reviewing for substantial evidence, we examine the entire record in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime beyond a reasonable doubt. Substantial evidence is reasonable, credible evidence of solid value, even if circumstantial. We will reverse only if upon no hypothesis whatever is there sufficient substantial evidence to support it.
Authority:
People v. Zamudio (2008) 43 Cal.4th 327, 357
People v. Redmond (1969) 71 Cal.2d 745, 755
Third Holding:
When insufficient evidence supports a conviction for a greater offense, we may modify the judgment to reflect a conviction for a lesser included offense.
Authority:
People v. Bailey (2012) 54 Cal.4th 740, 748
Fourth Holding:
The only lesser offenses here are time barred. Although the defendant did not raise the statute of limitations in his supplemental brief, a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. Because the only applicable lesser included offenses are time-barred, we must reverse the defendant’s conviction for count 19 for insufficient evidence.
Authority:
People v. Williams (1999) 21 Cal.4th 335, 338
Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 [Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.]
Fifth Holding:
The One Strike law, section 667.61, applies only to certain felony sex offenses. The defendant’s Count 18 conviction is not among those offenses. Consequently, we reverse the jury’s two count 18 true findings under section 667.61.
Authority:
PEN 667.61(c)
People v. Anderson (2009) 47 Cal.4th 92, 102
People v. Seals (1993) 14 Cal.App.4th 1379, 1385
Sixth Holding:
The defendant contends his sentence of [hundreds of years to life] constitutes cruel and unusual punishment under the United States and California Constitutions. The defendant forfeited this claim of error. A claim that a sentence is cruel or unusual requires a fact specific inquiry and is forfeited if not raised below. At the sentencing hearing, defense counsel never invoked the state constitutional prohibition against cruel or unusual punishment (Cal. Const., art. I, sec. 17). The defendant did not adequately preserve an objection under the Eighth Amendment either. To the contrary, after imposing the sentence, the court asked if counsel for either side wanted to be heard, and defense counsel responded, “No.” As a result, the defendant’s federal constitutional claim is also forfeited.
Authority:
People v. Baker (2018) 20 Cal.App.5th 711, 720
People v. Boyce (2014) 59 Cal.4th 672, 731