P. v. Torres
Defendant Jose Juan Bravo Torres was convicted on June 27, 2006, after a jury trial, of kidnapping to commit an act of forcible sexual penetration (Pen. Code, 209, subd. (b)(1), count one);[1]kidnapping ( 207, subd. (a)(1), count two); an act of forcible sexual penetration ( 289, subd. (a)(1), count three); and commission of a lewd and lascivious act on a child 15 years old ( 288, subd. (c)(1), count four).[2] On July 25, 2006, the trial court announced it was sentencing defendant to prison for a term of life (with a minimum of seven years) on count one, a sentence of eight years on count three, and an additional consecutive sentence of eight months on count four, for a total determinate sentence of eight years eight months to run consecutively to count one.[3] The court stayed defendants sentence on count two pursuant to section 654, imposed a restitution fine, ordered defendant to register as a sex offender, and granted defendant applicable custody credits. The court further ordered the collection of blood, saliva, fingerprint, palmprint, and DNA samples.
On appeal, defendant contends and plaintiff concedes that the trial court should have dismissed his kidnapping conviction on count two. Defendant argues that count three must also be dismissed. Plaintiff replies instead that count three should be stayed pursuant to section 654. Defendant asserts, and plaintiff also concedes, that there was insufficient evidence to support his conviction in count four for commission of lewd and lascivious conduct. Defendant contends that the trial court violated his right to a jury trial in sentencing him to a consecutive term on counts one and three and to the upper term on count three.
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