P. v. Aguirre
A jury convicted Hilario Aguirre of two counts of committing a lewd act upon a child (counts 2 and 3) in violation of Penal Code section 288, subdivision (a). The jury also found true the allegations charged with both counts that in committing these acts Aguirre (1) used matter depicting sexual conduct under section 1203.066, subdivision (a)(9); and (2) had substantial sexual conduct with a child under 14 years old under section 1203.066, subdivision (a)(8). The court sentenced Aguirre to a total of eight years in prison. He received consecutive sentences for the midterm of six years for count 2 and one-third the midterm, two years, for count 3.
Aguirre appeals, contending the court abused its discretion by (1) excluding credibility evidence that was highly probative of his defense and was neither cumulative nor confusing of the issues presented to the jury; and (2) failing sua sponte to instruct the jury of a lesser-included offense that was supported by the evidence. Court affirm.
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