In re Moises R.
Filed 10/17/13 In re Moises R. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re MOISES R., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
MOISES R.,
Defendant and Appellant.
D063355
(Super. Ct.
No. J232396)
APPEAL from
a judgment of the Superior Court
of
County, Richard R. Monroy, Judge. Affirmed as modified and remanded with
directions.
Sheila
Quinlan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marissa
Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
The Orange
County Juvenile Court entered true findings on a
R. committed forcible sodomy (Pen. Code, § 286, subd. (c)(2); count 1),
sodomy of a person under 14 years old and more than 10 years younger than the
perpetrator (Pen. Code, § 286, subd. (c)(1); count 2) and two counts of
committing a lewd act on a child under 14 (Pen. Code, § 288, subd. (a);
counts 3 & 4). After the case was
transferred to San Diego County, the San Diego County Juvenile Court adjudged
Moises a ward (Welf. & Inst. Code, § 602) and ordered him placed in a
community care facility.
Moises
appeals, contending the findings on counts 3 and 4 must be reversed because
there was insufficient evidence he had
the requisite specific intent; the court miscalculated his maximum term of
confinement (Welf. & Inst. Code, § 726, subd. (d)); and it failed to
award him precommitment credit. The
People properly concede these points.
In counts 3
and 4, Moises "laid [the victim] on [a] couch" and "pulled [the
victim's] pants down." These acts
were merely preparatory to the sodomy alleged in counts 1 and 2. (People
v. Perkins (1982) 129 Cal.App.3d 15, 19.)
The court calculated the maximum term as 19 years (13 years on count 1
and two years each on counts 2, 3 and 4)
and failed to award Moises credit for time he spent in juvenile hall before the
dispositional hearing (In re Emilio C.
(2004) 116 Cal.App.4th 1058, 1067).
DISPOSITION
The true
findings on counts 3 and 4 are reversed.
As so modified, the judgment is affirmed. The matter is remanded to the juvenile court
with directions to calculate precommitment credit and recalculate the maximum
term of confinement.
McCONNELL,
P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
name="_ftn1" title="">[1]
Counts 1 and 2 describe the same
act of sodomy, with terms of nine, 11 or 13 years (Pen. Code, § 286, subd.
(c)(2)(B); count 1) and three, six or eight years (Pen. Code, § 286, subd.
(c)(1); count 2).
