People v. Jardinez CA4/1

INTRODUCTION

Sergio Soto Jardinez appeals a judgment of conviction after a jury found him guilty of forcible sexual penetration of a minor aged 14 years or

older by a foreign object (Pen. Code,1 § 289, subd. (a)(1)(C); count 1) (hereafter, forcible sexual penetration); sexual penetration of a minor by a foreign object (id., subd. (h); count 2) (hereafter, nonforcible sexual penetration); and misdemeanor battery (§ 242; count 3). As punishment for these crimes, the trial court sentenced the defendant to prison for six years. On appeal, the defendant argues the count 2 conviction for nonforcible sexual penetration must be reversed because nonforcible sexual penetration was a lesser included offense of forcible sexual penetration (the count 1 conviction). Additionally, he claims the entire judgment must be reversed because the trial court erroneously denied a motion for a mistrial based on prosecutorial misconduct; his trial counsel was ineffective for failing to object to the alleged prosecutorial misconduct and for not requesting a jury admonition to cure the asserted prosecutorial misconduct; and cumulative errors deprived the defendant of due process and a fair trial. We agree…