Champion

1. Introduction

Defendant Allen Keith Champion appeals from a judgment convicting him of 40 counts of lewd and lascivious acts against his daughter and his niece, both of whom were under 14 years of age, in violation of Penal Code sections 288, subdivision (a), and 667.61, subdivision (e)(5). The trial court sentenced defendant to 47 years to life.

On appeal, defendant claims the trial court erred in admitting evidence that he invoked his right to remain silent during a police interrogation and instructing the jury that such evidence could be considered in determining his credibility. We conclude that the prosecutor’s reference to defendant’s refusal to speak with the police was a fair response to defendant’s claim that he was not given the opportunity to tell his side of the story. We also conclude that the court’s instruction properly applied Evidence Code section 913 to the circumstances in this case.

The People note that the trial court erred in sentencing defendant under both the determinate and indeterminate sentencing laws. Penal Code section 667.61, subdivision (b), however, requires that the court impose an indeterminate sentence of 15 years to life for each…