People v. Birmingham

J.—David Birmingham entered a negotiated plea of guilty to two counts of lewd and lascivious conduct with a child under the age of fourteen years (Pen. Code, § 288a). The court sentenced him to serve eight years in prison: the middle term of six years on one count, with a consecutive two-year term on the other. Birmingham appeals.

On August 23, 1988, a baby-sitter overheard Birmingham’s six-year-old daughter E. say to her five-year-old friend Jessica, “Yeah, but you sucked my daddy’s wiener.” A week earlier, Jessica had stayed overnight with E. and both girls had orally copulated E.’s father. On August 25, the girls were examined at Palomar Hospital. Both showed symptoms of anal and vaginal trauma. Birmingham admitted the oral copulation but insisted anal and vaginal contact did not occur.

At the sentencing hearing, Jessica’s and E.’s mothers spoke in favor of imprisonment. Jessica’s mother said: “. . . I would like to say here today I don’t think there is a sentence long enough for what David . . . did to my daughter. It is something that will be with her the rest of her life.

“It destroyed my five-year-old little daughter for what he did to her. And I think he should…