Scott

In the first of two trials, a jury found Lionel Andrew Scott guilty of unlawful sexual intercourse by a person 21 years or older with a *789 minor under 16 years of age (Pen. Code, 2 § 261.5, subd. (d)), and two counts of oral copulation by a person over 21 years of age on a person under 16 years of age (§ 288a, subd. (b)(2)), but was unable to reach a verdict on one count of forcible rape (§261, subd. (a)(2)) and two counts of forcible oral copulation (§ 288a, subd. (c)(2)). The trial court declared a mistrial as to the latter three counts. The trial court subsequently found Scott suffered two prior serious/violent felonies or “strikes" (§ 667, subd. (b)-(i)), and sentenced Scott to a total prison term of 50 years to life.

In the second trial, a jury convicted Scott of the three violent sex counts that had been mistried. The trial court set aside the previously imposed sentence and resentenced Scott to state prison for a total term of 75 years to life. Scott appeals both judgments; we have consolidated the appeals.

Scott’s principal assignment of error is the retrial on the forcible sex offenses was barred under double jeopardy principles because his convictions of the…

I agree with part II of the majority opinion that under the facts of this case the trial court correctly refused to instruct that Scott’s reasonable belief Kristina was 16 years old established a defense to the nonforcible sex crimes. (Counts 2, 4 and 6—Pen. Code, §§ 261.5, subd. (d) and 288a, subd. (b)(2).) 1 1 also agree with parts III and IV that the trial court correctly instructed with CALJIC No. 17.41.1 and found true the prior serious or violent felony conviction allegation. However, I do not agree with part I (lesser included offense analysis) and as a result I also do not agree with part V (limitation on credits).

In part I the majority concludes that the count 2 offense (unlawful intercourse with a minor under 16 years of age) is not a lesser included offense to the count 1 offense (forcible rape), and the counts 4 and 6 offenses (oral copulation by a person over 21 years of age with a minor under 16 years of age) are not lesser included offenses to the counts 3 and 5 offenses (forcible oral copulation), respectively. Were the majority comfortable with this conclusion, part I would have ended at that point; no further discussion of Scott’s argument that section 1023…

Certified for Partial Publication. [1]

In the first of two trials, a jury found Lionel Andrew Scott guilty of unlawful sexual intercourse by a person 21 years or older with a minor under 16 years of age (Pen.Code, [2] § 261.5, subd. (d)), and two counts of oral copulation by a person over 21 years of age on a person under 16 years of age (§ 288a, subd. (b)(2)), but was unable to reach a verdict on one count of forcible rape (§ 261, subd. (a)(2)) and two counts of forcible oral copulation (§ 288a, subd. (c)(2)). The trial court declared a mistrial as to the latter three counts. The trial court subsequently found Scott suffered two prior serious/violent felonies or "strikes" (§ 667, subd. (b)-(i)), and senfenced Scott to a total prison term of 50 years to life.

In the second trial, a jury convicted Scott of the three violent sex counts that had been mistried. The trial court set aside the previously imposed sentence and resentenced Scott to state prison for a total term of 75 years to life. Scott appeals both judgments; we have consolidated the appeals.

Scott's principal assignment of error is the retrial on the forcible sex offenses was barred under double jeopardy…