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P. v. Nieto
P. v. Nieto
09/08/06

P. v. Nieto




Filed 9/7/06 P. v. Nieto CA3






NOT TO BE PUBLISHED






California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


THIRD APPELLATE DISTRICT


(El Dorado)


----








THE PEOPLE,


Plaintiff and Respondent,


v.


ALEX JOSE NIETO,


Defendant and Appellant.





C049170



(Super. Ct. No. P04CRF0280)





Charged with committing multiple sex acts with children, defendant Alex Jose Nieto entered a negotiated plea of guilty to two counts of lewd and lascivious acts upon children under 14 years of age (Pen. Code, § 288, subd. (a)), and the remaining charges were dismissed. (Further section references are to the Penal Code unless otherwise specified.) Defendant's request for probation was denied, and he was sentenced to state prison for an aggregate term of eight years.


On appeal, defendant contends (1) he is entitled to resentencing because the trial court erroneously relied on California Rule of Court, rule 4.413(b) to deny probation (further references to rules are to the California Rules of Court); (2) the decision to deny probation was not supported by substantial evidence; and (3) the court erred at the sentencing hearing by allowing an expert's report regarding defendant's mental condition to be introduced into evidence even though the expert did not testify and, therefore, was not available for cross-examination. We shall affirm the judgment.


FACTS


Between January 1, 1998, and May 12, 2001, defendant molested two children under 14 years of age. He sexually abused the older victim approximately six to eight times, beginning when she was 11 or 12 years old; a typical incident involved defendant touching the victim's vagina and breasts under her clothing and placing her hand on his erect penis. The younger victim reported one sexual assault, which occurred when she was 11 years old; defendant lay down next to her and inserted his finger into her vagina multiple times over the course of two hours. After the younger victim reported the molestation to her mother, defendant apologized to the younger victim. He said â€

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