P. v. Trejo CA4/2
Defendant and appellant Daniel Trejo raped and molested his stepdaughter Jane Doe from the time she was six years old until she was 13 years old.
Defendant was found guilty of aggravated sexual assault of a child under 14 years of age (Pen. Code, § 269, subd. (a)(1); count 1) and two counts of forcible lewd conduct on a child under the age of 14 years (§ 288, subd. (b)(1); counts 2 & 3) committed between November 3, 2008, and November 2, 2010. Defendant was sentenced to 15 years to life plus a determinative term of 12 years to be served in state prison.
Defendant claims on appeal that the trial court breached its sua sponte instructional duty and violated his federal due process rights by failing to instruct the jury (1) with the lesser included offense of unlawful sexual intercourse with a minor three years younger (§ 261.5, subd. (c)) for count 1; and (2) with the lesser included offense of non-aggravated lewd act (§ 288, subd. (a)) for counts 2 and 3.
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