Quinones

*1156 Opinion

By jury verdict, defendant Guadalupe Marin Quinones was convicted of two separate acts of molesting a child under the age of fourteen, i.e., count one a violation of Penal Code section 288, subdivision (a), 1 without force, and count two a violation of section 288, subdivision (b), with force. He was sentenced to serve eight years in state prison. He raises eight separate grounds on appeal. Each will be addressed separately in this opinion.

Summary of Facts

Quinones lived with nine-year-old Norma and her mother, Elena. One night in May of 1986, while Norma’s mother was at work, Quinones approached Norma as she lay in her bed on the verge of falling asleep. Quinones took Norma to the bed he normally shared with Elena, removed her panties, and then touched her vagina. Quinones told Norma not to tell anyone what had happened, and that she would be spanked if she did. Norma refrained from telling her mother because of Quinones’s threat.

Some time later, on May 20th, when Elena was again away from home, Quinones carried Norma from her bed to his own. While carrying her to his bed, Quinones promised to give her money and said that she should let him “do things” to her.…

I join in the opinion of the court except as to that part which orders remand for resentencing.

People v. Ginese (1981) 121 Cal.App.3d 468 [ 175 Cal.Rptr. 383 ] is not clear. I do not quarrel with that decision if it is merely construed to hold that where a specific age of a child is an element of a crime or a degree of a crime the court may not aggravate the defendant’s sentence on the basis of California Rules of Court, rule 421(a)(9), namely that “[t]he defendant used . . . minors in the commission of the crime.” But if Ginese is interpreted so as to preclude aggravating on the basis of a victim’s age considerably below that which is an element of the offense, Ginese is wrong 1 and should not be followed. A trial judge is well within his rights in determining that a defendant is far more depraved and dangerous if he molests a nine-year-old than if he engages in the same conduct with a perhaps sexually precocious thirteen-year-old. In my view, a trial judge who points out, as this one did, that a victim of molestation was nine years of age has stated sufficient grounds for the imposition of the upper term. Rules 408 and 443 make clear that the enumeration in the rules is not…

[Opinion certified for partial publication. [*] ]

OPINION

CHAPMAN, J. [*]

By jury verdict, defendant Guadalupe Marin Quinones was convicted of two separate acts of molesting a child under the age of fourteen, i.e., count one a violation of Penal Code section 288, subdivision (a), [1] without force, and count two a violation of section 288, subdivision (b), with force. He was sentenced to serve eight years in state prison. He raises eight separate grounds on appeal. Each will be addressed separately in this opinion.

Quinones lived with nine-year-old Norma and her mother, Elena. One night in May of 1986, while Norma's mother was at work, Quinones approached Norma as she lay in her bed on the verge of falling asleep. Quinones took Norma to the bed he normally shared with Elena, removed her panties, and then touched her vagina. Quinones told Norma not to tell anyone what had happened, and that she would be spanked if she did. Norma refrained from telling her mother because of Quinones's threat.

Some time later, on May 20th, when Elena was again away from home, Quinones carried Norma from her bed to his own. While carrying her to his bed, Quinones promised to give her money and…