P. v. Michelle S. CA1/3
A jury convicted defendant Michelle S. of two counts of sexual intercourse with a child age 10 or younger (Pen. Code, § 288.7, subd. (a)) and, during a subsequent time period, continuous sexual abuse of a child age 14 or younger (§ 288.5). Defendant is serving concurrent prison terms of 25 years to life on the first two counts, consecutive to a term of 16 years on the third count. Defendant contends that with respect to the first two counts, the evidence required the trial court to instruct the jury on the lesser included offense of statutory rape, defined as unlawful sexual intercourse with a minor more than three years younger than the perpetrator. (§ 261.5, subd. (c).) The lesser offense carries a maximum penalty of three years (§§ 261.5, subd. (c), 1170, subd. (h)(1)) rather than the life sentence imposed for sexual intercourse with a minor age 10 or younger (Pen. Code, § 288.7, subd. (a)). We agree the pleadings and state of the evidence required instruction on the lesser
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