Rios

I.

Introduction

Enrique (Kiko) Rios (defendant) appeals from his conviction of violating Penal Code section 288, subdivision (a), by committing a lewd and lascivious act on his then nine-year-old son, R.

Defendant was charged in an amended information with two counts of violating Penal Code section 288, subdivision (a). In both counts it was alleged he committed a lewd and lascivious act on a child under 14 years of age. As to each count it was further specially alleged that he had occupied a position of special trust, and that the act committed was one of substantial sexual conduct, i.e., sodomy or oral copulation, all within the meaning of Penal Code section 1203.066, subdivision (a)(9). Count 1 alleged he committed such acts on his then five-year-old son, J., on or between June 30, 1987, and June 30,1988. Count 2 alleged he committed acts against his then nine-year-old son, R„ on or between June 1, 1988, and June 30, 1988.

The jury deadlocked on count 1, and the People dismissed that count and its accompanying special allegation. The jury returned a verdict of guilty on count 2, and also found the special allegation pursuant to Penal Code section 1203.066,…