People v. Delgadillo CA5

BACKGROUND

Defendant sexually molested the minor victim for many years until he divulged the molestation to a school counselor; defendant was arrested. On August 28, 2018, the Kern County District Attorney filed an information charging defendant with a lewd and lascivious act upon the victim when he was under the age of 14 years (§ 288, subd. (a); count 1), a lewd and lascivious act upon the victim when he was 14 or 15 years old and defendant was at least 10 years older than he (§ 288, subd. (c)(1); count 2), and sodomy with the victim when he was under the age of 18 years (§ 286, subd. (b)(1); count 3). On July 15, 2020, a jury found defendant guilty on all counts. On August 12, 2020, the trial court sentenced defendant to the upper term of eight years on count 1, plus a consecutive eight-month term on count 2 and a concurrent eight-month term on count 3, for a total of eight years eight months in prison. The same day, defendant filed a notice of appeal.

All further statutory references are to the Penal Code unless otherwise stated.

2.

DISCUSSION

At the time of defendant’s sentencing, section 1170, subdivision (b) permitted trial courts to select the appropriate term…