People v. Barragan CA5

Filed 1/28/25 P. v. Barragan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F086945 Plaintiff and Respondent, (Super. Ct. No. VCF350923) v.

FERNANDO ABARCA BARRAGAN, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Nathan G. Leedy, Judge. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Eric L. Christoffersen and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

Fernando Abarca Barragan was convicted by a jury of 23 counts under Penal Code section 288. On appeal, he challenges the consecutive sentences imposed by the trial court on 15 of those counts. Specifically, he argues reversal is necessary because the court was unaware it had the discretion to sentence him either consecutively or concurrently as to these counts. We detect no error and affirm. PROCEDURAL BACKGROUND Fernando Abarca Barragan was charged, by a second amended information (information) filed in the Tulare County Superior Court, with 22 counts of lewd act upon a child under the age of 14 (Pen. Code,1 § 288, subd. (a); counts 1-20, 22, 23) and one count of lewd act upon a child aged 14 or 15, where defendant was at least 10 years older than the child (§ 288, subd. (c)(1); count 21).2 The information alleged an aggravated circumstance, i.e., multiple victims, as to counts 1-20 and 22-23. (§ 667.61, subds. (b), (e).) The information alleged, as to counts 1-6 and 9-14, that the child victim was under the age of 14 and defendant had substantial sexual contact with the child. (§ 1203.066, subd. (a)(8).) The information included a “statute of limitations” special allegation as to counts 1-21 and count 23. (§ 801.1, subd. (a).) A jury found Barragan guilty as charged. The jury also found true all the special allegations attached to the charges. The trial court sentenced Barragan to the determinate low term of one year on count 21; indeterminate, consecutive terms of 15 years to life on each of counts 1-3, 7, 9-11, 15-20, and 22-23; and indeterminate, concurrent terms of 15