People v. Merino CA2/3

Filed 10/31/14 P. v. Merino CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B251819

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA391465) v.

JOSE FRANCISCO MERINO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis J. Landin, Judge. Affirmed as modified with directions. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.

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Jose Merino (appellant) appeals the judgment following a court trial in which he was convicted of two counts of committing a lewd act upon a child under the age of 14 years and 10 years younger than he (Pen. Code, § 288, subd. (a); counts 1 & 4) and one count of sexual penetration of a victim under the age of 14 years and 10 years younger than he (Pen. Code, § 289, subd. (j); count 3).1 In a court trial, appellant admitted in case No. LA055010, he had two alleged prior convictions of a serious felony, first degree burglary and lewd conduct with a child under the age of 14, which qualified him for five-year enhancements (§ 667, subd. (a)(1)), for enhanced terms pursuant to the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), for enhanced terms pursuant to the One Strike law with respect to counts 1 and 4 (§ 667.61, subds. (a), (c)(4) & (d)(1)), and for a finding he is a habitual sexual offender (§ 667.71, subds (a), (b) & (c)(4)). At sentencing, the trial court exercised its discretion to strike one allegation of a prior serious felony conviction, the first degree burglary, for purposes of sentencing appellant pursuant to section 667, subdivision (a)(1), and under the Three Strikes law. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) Pursuant to section 667.71, the trial court imposed doubled, concurrent terms of 25 years to life as to all three convictions, or 50 years to life. It further enhanced the 50-year-to-life term by five years for the prior serious felony conviction, making the aggregate term in state prison 55 years to life. BACKGROUND Appellant, age 26, was on parole for an offense of lewd conduct with a child under the age of 14, having previously had sexual intercourse with another underage female, one of his cousins. While on parole after his previous conviction, he met a 13-year-old female Hesperia teenager, E., through family while she was in Los Angeles. E. initiated contact with appellant. After an exchange of telephone calls and texting, appellant