P. v. Grose




Filed 6/2/11 P. v. Grose 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent, v. MATTHEW ALAN GROSE, Defendant and Appellant.

F058464 OPINION (Merced Super. Ct. Nos. AF46191 & MF46761)

APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
STATEMENT OF THE CASE
On February 6, 2008, the Merced County Superior Court consolidated case Nos. AF46191 and MF46761^[1] pending against appellant Matthew Alan Grose, and the district attorney filed a first amended information charging appellant as follows: counts 1and 2 --lewd or lascivious act upon J.B., a child under age 14 (Pen. Code,^[2] § 288, subd. (a)); count 3 -- false imprisonment of J.B. (§ 236); counts 4, 5, and 6 -- aggravated sexual assault upon J.B. (§ 269, subd. (a)(1)); count 7 -- lewd and lascivious act upon J.B. (§ 288, subd. (c)(1)); count 8 -- solicitation of the murder of J.B. (§ 653f, subd. (b)); count 9 -- attempted murder of J.B. (§§ 187, 664); count 10 -- solicitation of the murder of one C.J. (§ 653f, subd. (b)); and count 11 -- attempted murder of C.J. (§§ 187, 664).
On March 27, 2009, after numerous continuances, the court denied appellant's motion to set aside counts 9 and 11 of the first amended information on the ground the prosecution presented insufficient evidence at the preliminary hearing to hold him to answer (§ 995).
On June 23, 2009, jury trial commenced.
On July 2, 2009, the eighth day of trial, the jury returned verdicts finding appellant guilty as charged of all counts.
On August 14, 2009, the court denied appellant probation and sentenced him to an indeterminate term of 45 years to life and a total determinate term of 17 years 10 months. Specifically, the court imposed indeterminate terms of 15 years to life in state prison on counts 4, 5, and 6. The court imposed the upper term of nine years on count 9 and a consecutive term of three years six months on count 11, consecutive terms of two years each on counts 1 and 2, consecutive terms of eight months each on counts 3 and 7, and stayed sentence on counts 8 and 10 (§ 654). The court awarded 944 days of custody credits, imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and ordered victim restitution in an amount to be determined (§ 1202.4, subd. (f)).
On August 24, 2009, appellant filed a timely notice of appeal.
We affirm the judgment of conviction, note several instances of conceded sentencing error, and remand to the superior court for resentencing.
FACTS
J.B. was born in 1993. Her mother was married to appellant from 2006 to 2007. During that period, J.B. became friends with appellant's daughter. Appellant beat J.B.'s mother and J.B. was afraid of him. Appellant and J.B.'s mother separated in 2007, but J.B. would visit his home to spend time with appellant's daughter.
In early 2007, J.B. was 13 years old and appellant was in his 40's. On one occasion in February, J.B. was watching television at appellant's home when he asked her to come into his bedroom. Appellant asked her to lie down on the floor and then he touched her breast under her clothing. J.B. became scared and did not tell any adults about the touching. However, she told appellant's daughter what happened and appellant's daughter urged her to tell an adult. J.B. could not bring herself to do so.
In March 2007, J.B. went to appellant's home, and he asked her to come into the bedroom to listen to some CDs on his computer. She entered the room, he closed the door, and he touched her breast and vagina. He also penetrated her. J.B. told him to stop but, appellant engaged in sexual conduct for 15-20 minutes. During the assault,
appellant had a pair of pliers affixed to one of the doors to the bedroom and she said she could not leave.
J.B. said she engaged in sexual intercourse with appellant â€