P v. LINDER,

Filed 5/4/06

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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APPEAL from a judgment of the Superior Court of Sacramento County, Talmadge R. Jones, J. Affirmed with directions.

Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, John G. McLean, Supervising Deputy Attorney General, Harry Joseph Colombo, Deputy Attorney General, for Plaintiff and Respondent.

Defendant was convicted by a jury of five counts of lewd and lascivious conduct on R.S., a child under the age of 14 (Pen. Code, § 288, subd. (a))^[1] (counts 1-5), three counts of lewd and lascivious conduct on J.L., a child under the age of 14 (§ 288, subd. (a)) with findings the allegations extending the statute of limitations under section 803, subdivision (g) (section 803(g))^[2] were true (counts 6-8), one count of lewd and lascivious conduct on M.S., a child under the age of 14 (§ 288, subd. (a)), as a lesser offense of a forcible lewd act (§ 288, subd. (b)) (count 9), three counts of lewd and lascivious conduct on D.E., a child under the age of 14 (§ 288, subd. (a)) (counts 11-13), and one count of aggravated sexual assault (forcible oral copulation) of D.E., a child under the age of 14 and 10 or more years younger than defendant (§ 269, subd. (a)(4)) (count 10). The jury found true an allegation defendant committed offenses against multiple victims under section 667.61. The trial court sentenced defendant to a determinate term of 10 years, plus an indeterminate term of 120 years to life, ordered defendant to pay a $10,000 restitution fine, ordered defendant to pay a $10,000 parole revocation fine stayed pending successful completion of parole, and awarded defendant 539 total days of time credit.

Defendant appeals contending (1) his constitutional rights to an impartial jury and to due process were violated when the trial court failed to ask prospective jurors what effect prejudicial statements by other prospective jurors had on them, (2) his constitutional rights to a jury and due process were denied under recent decisions of the United States Supreme Court (Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556] (Ring); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621] (Booker)) by the instruction of the jury that the People could prove extension of the statute of limitations for counts 6 through 8 under section 803(g) by a standard of proof less than beyond a reasonable doubt, and (3) the trial court erred in concluding it did not have discretion to impose concurrent subordinate terms of 15 years to life for counts 1 through 5, count 9, and count 11. We agree only with defendant's last contention. We shall affirm defendant's convictions, but vacate the sentence and remand for resentencing.

FACTUAL BACKGROUND

As defendant's claims on appeal do not require a detailed statement of the underlying facts, we only briefly summarize them, viewing the evidence as a whole, in the light most favorable to the prosecution. (People v. Staten (2000) 24 Cal.4th 434, 460.)

Sometime in 1992 or 1993, when defendant's eight- or-nine-year-old niece J.L. was staying at defendant's house, J.L. and one of defendant's young daughters went into defendant's bedroom. Defendant asked the girls to take off their pants and underpants and lie on their stomachs facing the television, on which a pornographic movie was playing. Defendant stared at their genitalia, then digitally penetrated J.L.'s vagina four or five times. (Counts 6, 7 & 8.) The first time J.L. told anyone in law enforcement about defendant's actions was October 9, 2002. The felony complaint alleging these offenses was filed on October 6, 2003.

In August 1995, 10-year-old D.E. came to Sacramento for a family reunion. D.E. asked to accompany defendant on some errands. Defendant drove D.E. to his house. Inside the house, defendant tickled D.E., pressed his fingers on her stomach, pinned her in a corner and asked to lick her â€