Filed 4/21/06 P. v. Leonard 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. TIMOTHY LEONARD, Defendant and Appellant. |
F047969
(Super. Ct. No. TF004360A)
OPINION |
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.
Richard D. Miggins, 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 William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Timothy Leonard was 29 years of age when he had a consensual sexual relationship with 14-year-old Jane Doe[1] that resulted in convictions for several sex-based offenses, each related to Jane's status as a minor. He challenges his convictions on constitutional grounds, claiming his right to equal protection and due process were violated because he was punished for the difference in age between himself and Jane, and because the statutes eliminated his right to assert Jane's consent to their sexual activities as a defense. Finally, he claims the trial court abused its discretion by refusing to dismiss his prior conviction for sentencing purposes. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Jane testified she had a consensual sexual relationship with Leonard that lasted approximately three months. She admitted having intercourse with Leonard on several occasions, as well as participating in numerous instances of oral copulation. She denied being forced to participate in any activity.
Leonard was charged with two counts of having sexual intercourse with a person under the age of 16, in violation of Penal Code section 261.5, subdivision (d),[2] four counts of oral copulation with a person under the age of 16, in violation of section 288a, subdivision (b)(2), two counts of lewd and lascivious acts on a child 14 years of age who also was 10 years younger than he, in violation of section 288, subdivision (c)(1), and one count of sodomy with a person under the age of 16, in violation of section 286, subdivision (b)(2). In addition, each count alleged Leonard previously had been convicted of a crime that constituted a prior strike within the meaning of section 667, subdivisions (b) through (i).
The trial court dismissed the sodomy count before the matter was submitted to the jury pursuant to section 1118.1. The jury found Leonard guilty of the remaining counts. Leonard admitted he previously was convicted as alleged in the information. After denying his Romero motion, the trial court sentenced Leonard to the second strike midterm sentence of six years for the first section 261.5 count and consecutive terms for each of the remaining counts, for a total term of 16 years.
DISCUSSION
I. Equal Protection
Section 261.5 defines the crime of unlawful sexual intercourse as â€
