People v. Velasco CA2/4

Filed 8/11/15 People v. Velasco CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B255534

Plaintiff and Respondent, (Los Angeles County Super. Ct. No.BA407210) v.

JUAN VELASCO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Sam Ohta, Judge. Affirmed in part and remanded in part with instructions. Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Defendant Juan Velasco1 was convicted by a jury of one count of unlawful sexual intercourse and one count of forcible rape. On appeal, he challenges the trial court’s imposition of attorney’s fees and its calculation of presentence custody credits. We remand this matter for the limited purpose of allowing the trial court to determine these issues. The judgment is otherwise affirmed. FACTUAL AND PROCEDURAL SUMMARY2 In an information filed on August 21, 2013, Velasco was charged with three counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a) (counts 1, 2, and 3));3 two counts of committing a lewd act upon a child aged 14 or 15 (§ 288, subd. (c)(1) (counts 4 and 5)); one count of unlawful sexual intercourse with a minor (§ 261.5, subd. (c) (count 6)); and one count of forcible rape (§ 261, subd. (a)(2) (count 7)). As to all counts, the alleged victim was S.M., Velasco’s stepdaughter. Velasco entered a plea of not guilty. Following a jury trial, Velasco was found guilty of unlawful intercourse with a minor (count 6) and forcible rape (count 7). The jury declared it was deadlocked and unable to reach a verdict as to counts one through five, and the court declared a mistrial on these counts. On April 10, 2014, the court dismissed counts one through five on the prosecutor’s motion. The court sentenced Velasco to a total of 11 years in state prison, comprised of a base term of three years on count 6 and a consecutive term of eight years on count 7. Velasco was awarded 495 days of presentence custody credits. The court also ordered