Gutierrez

In this case we hold the sentencing court erred, though harmlessly, in finding a child molester ineligible for probation on the ground the defendant, a relative of the victim, did not reside with her.

Ramiro Lemos Gutierrez appeals from a judgment of imprisonment for 3 counts of lewd and lascivious conduct upon a child under 14 years old (Pen. Code, § 288, subd. (a)) and 1 count of oral copulation with a child under 14 years old and more than 10 years younger than him (Pen. Code, § 288a, subd. (c)). We affirm.

Gutierrez was 20 years old at the time of the offenses. The victim, Olivia B., was his nine-year-old first cousin. The offenses occurred over a six-month period in 1985 at the home of Gutierrez’s mother, who frequently provided child care for her niece Olivia.

Gutierrez pleaded guilty to the four oifenses. He also admitted allegations that he had engaged in substantial sexual conduct with a victim under 11 years old, a factor normally resulting in ineligibility for probation. (Pen. Code, § 1203.066, subd. (a)(8).)

The court ruled Gutierrez was ineligible for probation and sentenced him to twelve years’ imprisonment, consisting of a principal six-year term and…