P. v. Granillo

Filed 3/20/06 P. v. Granillo CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge.

Jeffrey S. Kross, 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, for Plaintiff and Respondent.

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Appellant Bernardino V. Granillo was convicted of 10 counts related to the sexual molestation of a young girl. On appeal, he contends (1) four of the counts were necessarily included in other offenses, (2) the trial court abused its discretion by denying the motion for new trial based on juror misconduct, and (3) the trial court committed Blakely error^[1] when it imposed upper terms. We will reverse the convictions on counts 1, 3, 4, and 7, strike the respective sentences, and affirm the judgment in all other respects.

PROCEDURAL SUMMARY

On February 3, 2004, appellant was charged with 11 counts. Counts 1 through 6, which were alleged to have occurred on about August 16, 2003, included:

(1) forcible rape (Pen. Code, § 261, subd. (a)(2));^[2]

(2) forcible lewd act upon a child (§ 288, subd. (b)(1));

(3) oral copulation of a person under 14 years of age (§ 288a, subd. (c)(1));

(4) forcible oral copulation (§ 288a, subd. (c)(2));

(5) aggravated sexual assault of a child under 14 years of age by forcible rape (§ 269, subd. (a)(1)); and

(6) aggravated sexual assault of a child under 14 years of age by oral copulation (§ 269, subd. (a)(4)).

Counts 7 through 10, which were alleged to have occurred on about April 20, 2003, included:

(7) forcible rape (§ 261, subd. (a)(2));

(8) lewd act upon a child (§ 288, subd. (a));

(9) aggravated sexual assault of a child under 14 years of age by forcible rape (§ 269, subd. (a)(1)); and

(10) oral copulation of a person under 14 years of age (§ 288a, subd. (c)(1)).

Count 11, which was alleged to have occurred on about January 24, 2002, charged: lewd act upon a child (§ 288, subd. (a)).

The jury found appellant guilty of counts 1 through 9 and count 11, and not guilty on count 10. The trial court sentenced appellant to a total prison term of eight years plus 45 years to life, as follows: eight years for count 11 and three consecutive 15-years-to-life terms for counts 5, 6, and 9. Sentences on counts 1, 2, 3, 4, 7, and 8 were stayed pursuant to section 654.

DISCUSSION

I. Necessarily Included Offenses

Appellant contends the convictions on counts 1, 3, 4, and 7 are necessarily included lesser offenses of the section 269 offenses charged in counts 5, 6, and 9. The People concede count 1 is necessarily included in count 5, counts 3 and 4 are necessarily included in count 6, and count 7 is necessarily included in count 9. We accept the concession and will reverse the convictions on counts 1, 3, 4, and 7, and strike their respective (stayed) sentences. Remand for resentencing is unnecessary because the sentence imposed for these counts was stayed.

II. Juror Misconduct

Appellant contends the trial court erred by denying his motion for new trial based on juror misconduct. Appellant presented a motion for new trial and a letter by Juror No. 4. In the letter, she said she felt she had failed the judicial system, as well as appellant, because she felt he was innocent. She said she felt certain jurors had committed misconduct because they did not participate in deliberations. She described the behavior of four jurors, as follows:

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