P. v. Zazueta CA2/8
A jury convicted Reyes Zazueta of two counts of sexual penetration with a child aged 10 years old or younger (counts 1 and 9; Pen. Code, § 288.7, subd. (b)) and seven counts of lewd act upon a child (counts 2-8; § 288, subd. (a)). The trial court imposed two consecutive terms of 15 years to life on the sexual penetration convictions in counts 1 and 9. On the lewd act convictions in counts 2-8, the court imposed an aggregate consecutive determinate term of 8 years, comprised of the upper term of 8 years on count 4, and six concurrent upper terms of 8 years on each of the convictions in counts 2-3 and 5-8.
Zazueta contends his convictions for sexual penetration must be reversed because the trial court did not instruct the jury sua sponte on the lesser included offense of attempted sexual penetration. Further, Zazueta contends the evidence is insufficient to support one of his sexual penetration convictions. We reverse on count 9, make a minor modification concerning AIDS testi
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