P. v. Knox
Defendant waived jury trial on a multi count information arising from allegations he raped his 14 year old sister in law Kayla G. Thereafter, the court granted defendants motion to dismiss the charge of forcible rape alleged in count one (Pen. Code, 261, subd. (a)(2)), and found him guilty of committing a lewd or lascivious act upon a 14-year-old child and being at least 10 years older than the victim ( 288, subd. (c)(1) count two), felony unlawful sexual intercourse ( 261.5, subd. (d) count three), aiding and abetting false impersonation ( 529, subd. (3) count four), and misdemeanor resisting a peace officer ( 148, subd. (a)(1) count five). It also found true the allegations defendant had served a prior prison term ( 667.5, subd. (b)) and suffered three prior serious felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12).
The court denied defendants request to dismiss two or more strikes and sentenced him to 26 years to life: 25 years to life in count two plus one year for the prior prison term; and 25 years to life in counts three and four, each to be served concurrently and stayed pursuant to section 654. The court did not sentence defendant for the misdemeanor in count five. The court awarded defendant 381 days of actual credit at the sentencing hearing, but the minute order and abstract of judgment reflect a total of 432 days of presentence credit.
On appeal, defendant argues he is entitled to reversal of his conviction in counts two, three and five because: (1) the trial court admitted stipulations that amounted to guilty pleas without advising him of his constitutional rights as required under Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl), overruled in part on another ground in Mills v. Mun. Court (1973) 10 Cal.3d 288, 306-307; (2) his trial counsel provided ineffective assistance in proffering stipulations that amounted to guilty pleas with no benefit to defendant; and (3) the trial courts coercive threats to charge two key witnesses with perjury violated defendants right to confrontation and to present a defense. He also argues the trial court violated his right to be present at trial by proceeding without sufficient evidence thathis absence was voluntary and without allowing him to present evidence about his absence in support of his motion for new trial. Defendant challenges his sentence, arguing: (1) the court abused its discretion in denying his motion to strike prior strike convictions; (2) his sentence constituted cruel and unusual punishment; and (3) the court erred in calculating his presentence credits. We shall modify the judgment to award defendant additional presentence credits, and affirm the judgment in all other respects.
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