People v. Pineda CA5

Filed 6/12/15 P. v. Pineda 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F066585 Plaintiff and Respondent, (Super. Ct. No. VCF239958) v.

FRANK PINEDA, OPINION

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted defendant Frank Pineda of committing numerous sex offenses against three grandchildren and a stepdaughter. Pineda was sentenced to prison for over 600 years. On appeal, he contends (1) his lengthy prison sentence constitutes cruel and unusual punishment under the state and federal constitutions, and (2) the abstract of judgment erroneously reflects the sentence imposed on counts 3, 4, and 8. We agree with the second contention, which the People concede, and will remand the matter to the trial court to correct errors in the abstract of judgment, including an error our independent review has uncovered regarding the sentence imposed on counts 10 and 20. In all other respects, we will affirm the judgment. BACKGROUND1 On November 5, 2012, the jury convicted Pineda as charged of 11 counts of forcible lewd acts on a child under the age of 14 years (Pen. Code,2 § 288, subd. (b)(1); counts 1, 6, 11-19), three counts of oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b); counts 2, 5, 7), three counts of lewd acts on a child under the age of 14 years (§ 288, subd. (a); counts 3, 4, 8), one count of pandering by encouraging a minor under the age of 16 years to become a prostitute (§ 266i, subd. (b)(2); count 9), and one count of lewd acts on a child of 14 or 15 years of age (§ 288, subd. (c)(1); count 20). The jury also found true the special allegations that Pineda engaged in substantial sexual conduct with the victims (§ 1203.066, subd. (a)(8); counts 1, 4, 6, 11, 16-18), and committed sex crimes against multiple victims (§ 667.61, subd. (b); counts 1, 3, 4, 6, 8, 11-19). In a bifurcated proceeding, the trial court found Pineda guilty of failing to file a change of address (§ 290.013, subd. (a); count 10). The court also found true allegations