Filed 12/15/05 P. v. Birrey CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H026596

Plaintiff and Respondent, (Santa Clara County

Superior Court

v. No. CC254536)

ANTONIO MADINA BIRREY,

Defendant and Appellant.

_____________________________________/

Defendant pleaded guilty to two counts of forcible lewd conduct on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)). The trial court imposed concurrent upper terms of eight years in state prison. Defendant asserts that the aggravating circumstances identified by the trial court were either not supported by any evidence or were elements of the offenses that could not be used to justify imposition of an upper term. We find that three of the five aggravating circumstances cited by the trial court were improper, and we reverse and remand for resentencing.

I. Background

Defendant, a 52-year-old man, lived in an apartment next door to the apartment in which the 11-year-old victim lived with her father and sister. The victim had known defendant for â€