People v. Gaines CA3

Filed 4/21/21 P. v. Gaines CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C091438

Plaintiff and Respondent, (Super. Ct. No. STKCRFECOD20180010502) v.

DARRELL GAINES,

Defendant and Appellant.

Appointed counsel for defendant Darrell Gaines filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

1

FACTUAL AND PROCEDURAL BACKGROUND The child victims, L. and M., reported that defendant repeatedly molested them in multiple acts over the course of years. Defendant was charged with committing lewd and lascivious acts against L., a child under the age of 14 (Pen. Code, § 288, subd. (a)),1 between February 2, 2014 and February 2, 2018 (counts 1 & 2); committing a forcible lewd and lascivious act against L. (§ 288, subd. (b)(1)) between February 2, 2014 and February 2, 2018 (count 3); committing a lewd and lascivious act against L., a child of 14 or 15 (§ 288, subd. (c)(1)) between February 2 and July 29, 2018 (count 4); dissuading a witness (L.) by threat (§ 136.1, subd. (c)(1)) between February 2, 2014 and July 29, 2018 (count 5); and committing lewd and lascivious acts against M. between October 6, 2017 and July 13, 2018 (counts 6 & 7). It was alleged as to all sex-related counts that defendant committed the offenses against more than one victim. (§ 667.61, subd. (e)(4).) Following defendant’s first trial by jury, the trial court declared a mistrial as to all seven counts after the jury declared itself at an impasse. After retrial began, the court granted the People’s motion to amend count 3 to charge a violation of section 288, subdivision (a) and granted the People’s motions to dismiss count 5 and the multiple victim allegation as to count 4. The jury returned guilty verdicts on counts 1 through 4 (involving L.) but declared itself deadlocked on counts 6 and 7 (involving M.) and consequently did not return findings on the multiple victim allegations. The court declared a mistrial as to counts 6 and 7. The trial court sentenced defendant to an aggregate term of 12 years eight months in state prison, as follows: the upper term of eight years on count 1, two consecutive two-year terms (one-third the middle term) on counts 2 and 3, and a consecutive eight- month term (one-third the middle term) on count 4. The court awarded custody credits in the amount of 588 days (512 actual and 76 conduct). The court ordered defendant to pay