People v. Gaytan CA5

INTRODUCTION

A.Y.1 lived with defendant Oscar Gaytan (stepfather), her mother, and her younger brother in Madera. A.Y. later alleged defendant sexually abused her from ages six to 12. Subsequently, defendant was found guilty by a jury of two counts of forcible, lewd acts upon A.Y. (Pen. Code, § 288, subd. (b)(1),2 counts 1 & 2); aggravated sexual assault of A.Y., who was under the age of 14 years, and defendant was seven years or older than A.Y. at the time of the offense (§ 269, subd. (a)(1), count 3); and oral copulation of A.Y., who was under the age of 14 (§ 287, subd. (c)(1), count 4). As to counts 1 and 2, the trial court imposed two consecutive upper terms of 10 years. As to count 4, the trial court imposed a consecutive two-year term (one-third the middle term of six years). As to count 3, the trial court imposed an indeterminate term of 15 years to life. The total aggregate sentence imposed was 37 years to life. On appeal, defendant makes several claims of prosecutorial misconduct and alleged errors by the trial court. As to prosecutorial misconduct, defendant alleges the prosecutor committed misconduct when he: (1) improperly shifted the burden of proof during…