People v. Tagintsev CA3

BACKGROUND

In 2012, the Sacramento County District Attorney charged defendant, then a noncitizen resident of the United States, with one count of lewd and lascivious acts with a child under the age of 14 (§ 288, subd. (a)) and two counts of annoying or molesting a child under the age of 18 (§ 647.6, subd. (a)(1)). Defendant later admitted a factual basis existed for the section 288 count, acknowledging that the prosecution’s evidence would show that, in 2010, he “touch[ed] the breasts of . . . a child of the age of 13 years old” “with the intent to sexually gratify himself.” Following the charges, defendant’s attorney attempted to negotiate a plea that would avoid adverse immigration consequences and limit defendant’s time in custody. To that end, after the prosecution offered “a bullet,” that is, a year, on the section 288 charge, defendant’s counsel countered with three alternatives, e-mailing: “1) Would you giv[e] 364 days instead of 365? [¶] 2) Is there any way that you would offer a [section] 32 [charge] instead? [¶] 3) If no to #2, would you consider offering a misdemeanor instead?” But the prosecution responded that “the offer remains a bullet on the [section] 288…