The People v. Burgos CA2/5

I. INTRODUCTION

A jury convicted defendant, Johnny Burgos, as charged in count 2 of lewd conduct upon a child under 14 years of age. (Pen. Code,1 § 288, subd. (a).) And, as to count 3, defendant was convicted of child molestation with a previous conviction. (§ 647.6, subds. (a)(1) & (c)(2).) The jury further found true prior conviction and prison term allegations under sections 667, subdivisions (a)(1), (b) through (i), 1170.12 and 667.5, subdivision (b) respectively. Defendant was sentenced to 35 years to life in state prison. We modify the judgment and remand with directions.

II. THE EVIDENCE

A. Prior Sex Crimes Evidence

1. A.R.

Defendant married S.B. on September 4, 1989. They subsequently had three sons. Also in 1989, defendant victimized seven-year-old A.R. The mother of A.R. was S.B.’s friend. That is, defendant, S.B.’s spouse, molested A.R., the daughter of his wife’s friend. Defendant put his hands inside A.R.’s nightgown and put his finger inside her vagina. A.R. “freaked out” in her words. Defendant apologized and offered to let A.R. hit him. On October 16, 1989, defendant pled guilty to a violation of section 288, subdivision (a). On January 17, 1990, he was placed…