P. v. Nieto CA6
A jury found defendant Jose Nieto guilty of two counts of committing a lewd or lascivious act on a child under age 14 (Pen. Code, § 288, subd. (a) ). Nieto had committed the crimes against two children, and the jury found true a multiple-victim sentence enhancement allegation under section 667.61. The trial court sentenced Nieto to two, consecutive 25-years-to-life terms.
On appeal, Nieto claims the trial court erred by instructing the jurors with CALCRIM No. 1191B concerning a propensity inference based on the charged sex offenses and by overruling his hearsay objection to certain testimony from one of the victims. Regarding his sentence, Nieto contends the 25-years-to-life terms were unauthorized because the charging document did not plead the sentence enhancement under the relevant provision, section 667.61, subdivision (j)(2). He further asserts that his sentence constituted cruel and unusual punishment.
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