People v. Hrenko CA3

BACKGROUND

Due to the limited scope of the issues on appeal, a full recital of the facts is unnecessary. Defendant raped his teenage daughter and attempted to do so again on a separate occasion. He also fondled a six-year-old child. And, late one rainy night, his girlfriend awoke to find he had left their bedroom and entered the room where his daughter and his girlfriend’s daughter were sleeping in the same bed. His girlfriend pulled open a curtain around the bed to discover defendant standing near the edge of the bed with his pants down and penis exposed, “maybe four to five inches” from her daughter, “looking at both the girls,” masturbating. It was dark in the room and the girls were not awakened. Defendant told his girlfriend he had “never been caught before.” A jury found defendant guilty of attempted forcible rape of a minor (Pen. Code, §§ 664, 261, subd. (a)(2));1 forcible rape of a minor (§ 261, subd. (a)(2)); committing a lewd act upon a child 14 years or younger (§ 288, subd. (a)); and misdemeanor annoying or molesting a child (§ 647.6, subd. (a)(1)). The court imposed an upper term of eight years for the lewd act as the principal term; a consecutive eleven-year upper…