Winslow

Rene Winslow appeals from the judgment entered following a jury trial that resulted in his conviction of committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)) and a finding that he kidnapped the victim and “the movement of the victim substantially increased the risk of harm” beyond that inherent in the underlying crime (§ 667.61, subds. (a) & (d)(2)). He was sentenced to prison for 25 years to life. The trial court also imposed a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 parole revocation fine (§ 1202.45).

Appellant contends the trial court committed reversible error by finding the victim was unavailable for the purpose of allowing introduction of his preliminary hearing testimony at trial. He further contends the court committed prejudicial misconduct by instructing on facts not in evidence, “which implied a judgment about [the victim’s] credibility and situation.”

Based on our review of the record and applicable law, we affirm the judgment.

As we shall discuss, appellate courts should independently review a trial court’s determination that a witness is unavailable due to then existing mental illness or infirmity or…