McCoy

INTRODUCTION

A jury found Jerry Wayne McCoy, Jr., guilty of one count of exhibiting harmful matter to a minor and guilty of four counts of committing a lewd and lascivious act on a child under the age of 14 years. (Pen. Code, §§ 288, subd. (a), 288.2, subd. (a).) In all five counts, his six-year-old stepdaughter B. was the victim.

On appeal, McCoy raises nine issues. In the published portion of our opinion, we will reject, after agreeing partly with his and partly with the Attorney General’s analyses of the law, his challenge to the constitutionality of CALJIC No. 2.20.1 and, in a question of first impression, his argument that a readback of testimony to the jury over express defense objection out of his and his attorney’s presence violated his federal and state constitutional rights to counsel and due process. In the nonpublished portion of our opinion, we will agree with his argument that there is an insufficiency of the evidence to support the count six lewd and lascivious conviction but will decide all of his other arguments adversely to him. We will reverse the judgment on count six and will order the sentence on that count stricken from the judgment but will…