People v. Villalobos CA5

Filed 11/29/23 P. v. Villalobos 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F085456 Plaintiff and Respondent, (Super. Ct. No. 21CR-05259) v.

MARTIN VILLALOBOS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Detjen, J. and Meehan, J.

INTRODUCTION Defendant Martin Villalobos was convicted of five counts of engaging in sodomy with a child 10 years of age or younger (Pen. Code,1 § 288.7, subd. (a); counts 1, 2, 4, 6, 7), and three counts of engaging in oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b); counts 3, 5, 8). He was sentenced to consecutive terms of 25 years to life on each of the sodomy counts and consecutive terms of 15 years to life on each of the oral copulation counts, along with statutory fines, fees, and assessments. On appeal, he contends the matter should be remanded for resentencing to allow the court to exercise its discretion to impose concurrent terms. We conclude the court was aware of the scope of its discretion and remand for resentencing therefore is unwarranted. Accordingly, we affirm. FACTUAL BACKGROUND Because the issues raised on appeal relate only to sentencing, we discuss the underlying facts only briefly. Claudia L.2 and defendant were in a relationship beginning in 2015 and had three young children together. Claudia also had a daughter, I.L., from a prior relationship. Through the time of trial, I.L. was not aware that defendant was not her biological father. On the night of October 23, 2021, defendant and I.L. ate dinner while Claudia nursed her and defendant’s 20-day-old infant. Eventually, defendant and I.L. left the room. Claudia had a feeling that something was not right and went to the bedroom she shared with defendant. From the doorway, she could see that I.L. was on the bed on her back with her legs dangling from the bed and her shorts and underwear down to her ankles. Defendant was over her with one of his knees on the bed. Claudia turned on the