People v. Bruce G.
Opinion
Concurrence in Part
Davis, J.
Concurring and Dissenting.—I respectfully dissent from that part of my colleagues’ opinion remanding the matter to the trial court for resentencing. In all other respects I concur.
*1249 A defendant who the jury has found has engaged in substantial sexual conduct with a victim who is under 14 years of age is ineligible for probation unless the trial court makes five findings enumerated in Penal Code section 1203.066, one of which is that a grant of probation to the defendant is in the best interest of the child.
Here the prosecutor blundered by failing to craft the information so as to require the jury to find that defendant had engaged in substantial sexual conduct with a child under the age of 14 within the meaning of Penal Code section 1203.066. Had the prosecutor included the charge, the jury would have necessarily found it true. This is because the facts underlying each of the three counts defendant was convicted of constitute substantial sexual conduct within the meaning of that statute; namely, having his daughter masturbate him when she was 9 or 10 years of age.
At sentencing, the trial court failed to notice the absence of the special finding. It proceeded as if…
Lead Opinion
Morrison, J.
Defendant Bruce G. was accused by information of four counts of violating Penal Code section 288, subdivision (a) (all undesignated *1236 section references are to the Penal Code). Counts 1 through 3 accused defendant of committing a lewd or lascivious act upon A. II, a child under the age of 14, on or about March of 1997; count 4 accused him of committing a lewd or lascivious act upon C., a child under the age of 14, on or about July 1996.
After trial, a jury convicted defendant on counts 1 through 3 and acquitted him on count 4. Relying on section 1203.066, the trial court denied defendant’s application for probation and sentenced him to an aggregate prison term of six years (the midterm on count 1, with concurrent terms on counts 2 and 3).
Defendant contends: (1) The trial court abused its discretion under Evidence Code section 352 by admitting evidence of sexual offenses allegedly perpetrated by defendant against two adult women. (2) The admission of this evidence under Evidence Code section 1108 deprived defendant of due process and a fair trial. (3) The trial court erred prejudicially by instructing the jury with the 1999 version of CALJIC No. 2.50.01. (4) The…