People v. Garcia CA5

BACKGROUND

In an amended information filed July 2, 2019, the Madera County District Attorney charged Garcia with two counts of lewd and lascivious acts upon a child under the age of 14 years (counts 1 and 2; § 288, subd. (a)), misdemeanor annoying or molesting a child under 18 years of age (count 3, § 647.6, subd. (a)(1)), and lewd acts on a child under 16 years of age and more than 10 years younger than the defendant (count 4, § 288, subd. (c)(1)). A jury found Garcia guilty on all counts on August 1, 2019. Garcia subsequently filed a motion for new trial, which was denied by the trial court. The court sentenced Garcia to an aggregate term of 10 years eight months in state prison, calculated as follows: the upper term of eight years for lewd and lascivious acts upon a child under the age of 14 years (count 1; § 288, subd. (a)), plus two years (one- third the midterm of six years) for lewd and lascivious acts upon a child under the age of 14 years (count 2; § 288, subd. (a)), and eight months (one-third the midterm of two years) for lewd acts on a child (count 4; § 288, subd. (c)(1)). Garcia was sentenced to 364 days with credit for time served on count 3. Garcia appealed. We…