People v. McNeece CA3

Filed 2/17/15 P. v. McNeece CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C075911

Plaintiff and Respondent, (Super. Ct. No. CM036384)

v.

BRANDON MICHAEL McNEECE,

Defendant and Appellant.

Defendant Brandon Michael McNeece appeals the judgment imposed following his convictions for committing a lewd and lascivious act on T. C., a child under the age of 14 years old (count 1), unlawful sexual intercourse with C. R., a minor more than three years younger than defendant (count 2), and meeting C. R., a minor, with the intent to commit a sexual offense (count 3). He contends his consecutive sentences on counts 2

1

and 3 must be stayed under Penal Code1 section 654 and the imposition of the Government Code section 76104.7 assessment is an ex post facto violation. The People properly concede both claims. Accordingly, we shall stay the sentence imposed on count 2 and reduce the penalty assessment to $60. FACTUAL BACKGROUND In March 2012, 15-year-old C. R. called defendant and invited him to come over to her house to “hang out and go from there.” Defendant was almost 20 years old at the time. He knew C. R. was only 15 years old. Defendant came over to the home when C. R.’s mother and grandmother were out. He admitted the reason he went to the house was to have sex with C. R. Defendant hung out with C. R. and her sister in C. R.’s bedroom. He said the “F- word” and something about being “horny.” Defendant and C. R. kissed and had sexual intercourse while C. R.’s sister, T. C., was in the closet. When T. C. came out of the closet, defendant was naked and his penis was erect. Defendant kissed T. C. and touched her genitals. Defendant asked C. R. to have sex with him again. T. C. later told her mother what had happened. C. R. told her friend A. L. she had sexual intercourse with defendant. Upon being interviewed by Detective Miller, defendant admitted he knew C. R. was 15 years old; he had fondled her and suckled her breasts, touched her genitals and she had manually masturbated him to ejaculation. He denied having sex with her. PROCEDURAL HISTORY An information charged defendant with committing a lewd and lascivious act on T. C., a child under the age of 14 years old (count 1), unlawful sexual intercourse with C. R., a minor more than three years younger than defendant (count 2), and meeting