P. v. Torres
Filed 3/17/06 P. v. Torres CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. CESAR ALFREDO TORRES, Defendant and Appellant. |
F046568
(Super. Ct. No. 04CM0356)
OPINION |
APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge.
Sandra Uribe, 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, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
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Cesar Alfredo Torres (appellant) was charged with nine sex offenses committed against Maria, Monica and Myra. The offenses were alleged to have occurred between January 1988 and December 1990, in several instances, and January 1988 and December 1991 in the remainder. A jury convicted appellant of the forcible rape (Pen. Code, § 261, subd. (a)(2))[1] of Maria (count 1) and of Monica (count 4); forcible oral copulation (§ 288a, subd. (c)(2)) of Monica (count 3); committing a lewd act on a child under the age of 14 (§ 288, subd. (a)) upon Monica (count 5); and forcible sodomy (§ 286, subd. (c)(2)) of Myra (count 8). During trial, three counts were dismissed on a section 1118.1 motion: forcible rape (§ 261, subd. (a)(2)) of Myra (count 7); committing a lewd act on a child under the age of 14 (§ 288, subd. (a)) upon Monica (count 6); and sodomy with a person under the age of 14 and more than 10 years younger than appellant (§ 286, subd. (c)(1)) of Myra (count 9). The jury acquitted appellant of oral copulation with a person under the age of 14 (§ 288a, subd. (c)(1)) of Maria (count 2).
The trial court sentenced appellant to 26 years in prison, consisting of separate, consecutive six-year terms for the lewd act conviction, the two forcible rape convictions, and the forcible sodomy conviction, as well as a consecutive two-year term (one-third the midterm) for the forcible oral copulation conviction. The trial court granted appellant 234 days' presentence custody credits. It ordered appellant to comply with section 296, to register as a sex offender pursuant to section 290, to pay a $900 fine pursuant to section 290.3, and to pay a $10,000 restitution fine pursuant to sections 1202.4, subdivision (b) and 1202.45.
Appellant contends that: (1) his convictions must be reversed because section 803, subdivision (g) is a revival statute which violates ex post facto laws;[2] (2) the trial court incorrectly instructed the jury on lewd and lascivious acts; (3) section 654 precludes sentence on the lewd act conviction; (4) the trial court improperly imposed a full, consecutive term on one count of forcible rape; (5) his sentence should not have been subject to section 2933.1 credit limitations; (6) a parole revocation fine was improperly imposed pursuant to section 1202.45; and (7) the trial court improperly imposed a fine pursuant to section 290.3. We find merit only in appellant's claims concerning his credit limitations, parole revocation fine, and section 290.3 fine. We agree with respondent's contention that the trial court improperly relied on Blakely v. Washington (2004) 542 U.S. 296 in failing to impose a full, consecutive term on one of appellant's forcible oral copulation convictions. We modify the length of appellant's sentence, recalculate his custody credits, order that the section 1202.45 fine be stricken, and reduce his section 290.3 fine. In all other respects, we affirm.
FACTS
Maria, Monica and Myra are sisters who lived with their grandparents beginning in the mid-1980's while their parents worked in the fields. Appellant lived in the home as well.
Maria, who was 25 years old at the time of trial, testified that appellant began molesting her when she was about eight years old and continued until she was 12. Appellant penetrated Maria's vagina and anus with his penis, orally copulated her, and forced her to orally copulate him. Maria testified that appellant had sexual intercourse with her â€
