People v. Brewer CA6

Filed 12/11/13 P. v. Brewer CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039051 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC962809)

v.

ALEXANDER MANUEL BREWER,

Defendant and Appellant.

A jury convicted defendant Alexander Manuel Brewer on one count of sexual penetration with a child 10 years of age or younger, and two counts of a lewd or lascivious act on a child. (Pen. Code, §§ 288.7, subd. (b), 288, subd. (a).)1 The trial court sentenced defendant to a term of 15 years to life, consecutive to two concurrent three- year terms. On appeal, defendant contends the trial court erred in denying his motion to dismiss for vindictive prosecution. We find defendant’s claim without merit, and we will affirm the judgment.

1 Subsequent undesignated statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND A. Pretrial Proceedings On December 4, 2009, the prosecutor charged defendant with two counts of a lewd or lascivious act on a child for molesting his two half sisters: nine-year-old M. Doe, and five-year-old C. Doe. (§ 288, subd. (a).) The complaint also alleged multiple victims under the “One Strike” law. (§ 667.61, subds. (b), (e).) In exchange for dismissal of the strike allegation and one count of a lewd act, defendant pleaded no contest to lewd or lascivious act on a child and continuous sexual abuse of a child. In exchange, he received a stipulated term of 24 years. (§§ 288, subd. (a), 288.5, subd. (a).) Before sentencing, the parties and the court determined that the 24-year term was unlawful under the applicable statutes, and that the maximum term was 18 years. Defendant’s retained counsel moved to withdraw his plea.2 The trial court granted the motion, set aside the plea, and reinstated the complaint. At the start of the second preliminary hearing on June 28, 2011, the prosecutor announced her intent to amend the complaint to add two counts: sexual penetration of a child, and a third lewd or lascivious act on a child. The prosecutor had previously provided defendant with the amended complaint. After the victims and their mother testified, the parties agreed to continue the preliminary hearing for the purpose of discussing settlement. When the hearing resumed on July 14, 2011, the prosecutor announced she had made an offer of 18 years in exchange for a plea to three counts of a lewd or lascivious act on a child and one count of a lewd or lascivious act on a child by force. (§ 288, subds. (a) & (b).) Defendant personally rejected the offer on the record. At the