People v. RIBERA

Opinion

WISEMAN, J.

Christopher Bierra Ribera appeals from the judgment entered following a jury trial that resulted in his conviction for one count of aggravated sexual assault upon a child and two counts of aggravated lewd conduct with a child. On appeal, defendant contends that (1) the trial court erred in granting the People’s motion to amend the information to change the dates that the offenses allegedly occurred; (2) there was insufficient evidence to support the jury’s findings that defendant sodomized and assaulted the victim through use of duress or fear; (3) there was insufficient evidence to

[83]

support defendant’s conviction for aggravated sodomy because the penetration of the victim occurred through her underwear; and (4) the imposition of upper and consecutive terms violates

Blakely

v.

Washington

(2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531].

In the published portion of this opinion, we address whether anal penetration through clothing is sodomy in violation of Penal Code section 286. We conclude that where there is penetration into a victim’s anus by a perpetrator’s sexual organ, it is sodomy in violation of Penal Code section 286, even if the victim is wearing clothes at the time.

In the unpublished portion, we hold that the trial court did not abuse its discretion in granting the People’s motion to amend the information and conclude that there was sufficient evidence to support the defendant’s convictions for sodomy and lewd and lascivious conduct with a child under the age of 14. We further hold that defendant’s sentence does not violate

Blakely.

PROCEDURAL HISTORY

On January 6, 2004, the Kings County District Attorney’s Office filed an information alleging the following criminal counts: count one, aggravated sodomy on a child under the age of 14 and more than 10 years younger than defendant (Pen. Code, § 269, subd. (a)(3)); count two, aggravated lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)); and count three, lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)). The information alleged that the three charged offenses took place “[bjetween the 15th day of June, 2002, and the 6th day of July, 2002 . . . .” Defendant pled not guilty to these counts on January 7, 2004.