People v. Layral CA4/1

Filed 9/24/20 P. v. Layral CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076744

Plaintiff and Respondent,

v. (Super. Ct. No. RIF1402889)

GILBERT WAYNE LAYRAL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Bernard Schwartz, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison Acosta, Deputy Attorneys General, for Plaintiff and Respondent. On this appeal, defendant alleges he should be resentenced because the trial court did not know it could sentence him concurrently for counts 1 and 2.

He also alleges his actual custody credits need correction. We conclude that the court knew of its discretionary choices and the consecutive sentencing was proper. We agree, however, as do the People, that defendant’s custody credits should be corrected.

FACTUAL BACKGROUND1 John C., the brother of defendant’s wife Pam, had a daughter, M.C. and a stepdaughter M.G. From the time they were five and six years old until they were 10 and 11, respectively, they visited defendant and Pam once a month at their house in Riverside. One day, when M.G. was between five and 11 years old, and after swimming at defendant’s house, defendant turned on the shower for her, put his hand inside her bathing suit bottom and rubbed the inside of her vagina. When she jumped away, defendant told her not to tell anyone. M.G. told M.C. but nobody else. M.C. testified that from the time she was seven or eight, defendant would rub her stomach, lower back, and inside her thighs while she wore her bathing suit. He also would lie on top of her on his bed and tickle her thighs. When M.C. was about 10 years old and taking a nap, defendant pulled off the bottom of her two-piece bathing suit, and rubbed her “between the two parts” of her vagina for 15 to 20 minutes. Late that same day, defendant tried unsuccessfully to get M.C. to take off her bathing suit and show him her body.