People v. Smith CA5

INTRODUCTION

On June 24, 2019, Victim 1 visited his grandmother’s house where his two siblings (Victims 2 & 3) and defendant Donald Ray Smith resided. While at the house, the siblings were taking pictures underneath the porch when defendant joined the children and began masturbating in front of them. On July 31, 2020, a jury convicted defendant of annoying or molesting Victim 1, a child under the age of 18 years (Pen. Code, § 647.6, subd. (c)(2);1 count 1); annoying or molesting Victim 2, a child under the age of 18 years (§ 647.6, subd. (c)(2); count 2); and annoying or molesting Victim 3, a child under the age of 18 years (§ 647.6, subd. (c)(2); count 3). As to count 1, the trial court sentenced defendant to the middle term of four years. As to counts 2 and 3, the trial court stayed both sentences pursuant to Penal Code section 654.2 On appeal, defendant contends he was improperly convicted of multiple violations of section 647.6, subdivision (c)(2), all relating to a single criminal act because the statute criminalizes conduct and does not require a defendant to intend to victimize a specific child. The People concede error. Although the People concede error, we conclude…