People v. Montes CA5

INTRODUCTION

Defendant Ermilo Garcia Montes stands convicted of three counts of lewd or lascivious acts committed against two victims under the age of 14 years: Penal Code section 288, subdivision (a) (section 288(a)), counts 1 and 2;1 section 288, subdivision (b)(1) (section 288(b)(1)), count 3.2 The jury also found true special allegations that these crimes were qualifying offenses under section 667.61, subdivision (c) (section 667.61(c)), of the One Strike law with a multiple-victim circumstance alleged as to each count under section 667.61, subdivision (e) (section 667.61(e)). Defendant was sentenced to three consecutive terms of 25 years to life under section 667.61, subdivision (j)(2) (section 667.61(j)(2)). On appeal, defendant argued (1) the trial court failed to properly instruct on section 288(a) as a lesser included offense of count 3; (2) the court erred by failing to instruct the jury after the close of evidence under CALCRIM No. 220 on the prosecutor’s burden of proof beyond a reasonable doubt; (3) the information did not provide defendant constitutionally sufficient notice of the 25-year-to-life sentence applicable to each of his convictions under the One Strike…