Benitez

A jury convicted defendant Jose Benitez of 30 counts of molesting the two children of his brother’s girlfriend. It also sustained the allegation that the offenses involved more than one victim. Based on these findings, the trial court sentenced the defendant to state prison for two consecutive indeterminate life terms for at least 30 years, with concurrent terms for all the remaining convictions.

On appeal, the defendant contends the prosecutor committed misconduct, and the trial court erred when it failed to instruct the jury to consider the past criminal conduct of a witness, allowed his trial to proceed in his absence after he failed to appear on the final day of trial, and violated his constitutional right to have a jury determine every necessary fact. In the published portion of our opinion we reject this last contention by holding that the proviso in Penal Code section 667.61, subdivision (c)(7) (that a defendant is unqualified for probation), is not an element of the enhancement to be negated upon proof to a jury. We shall affirm.

The defendant’s arguments do not require us to summarize the entirety of the testimony at trial. To the extent necessary for context,…