P. v. Medel

















Filed 10/19/10 P. v. Medel CA4/2









See Concurring
and Dissenting Opinion



NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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.





IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA >



FOURTH APPELLATE DISTRICT



DIVISION TWO




>

THE PEOPLE, Plaintiff and Respondent, v. PEDRO LOPEZ MEDEL, Defendant and Appellant.

E049106 (Super.Ct.No. RIF141336) OPINION

APPEAL
from the Superior Court of Riverside
County. Ronald R.
Combest^* and Edward D.
Webster, Judges.^[1] Affirmed in part; reversed in part with
directions.

Eric
R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General,
Garrett Beaumont and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and
Respondent.

Defendant
Pedro Lopez Medel appeals from judgment entered following jury convictions for
forcible sodomy of a child under 14 years old and more than 10 years younger
than the defendant (Pen. Code, § 269, subd. (a)(3)^[2]; count 1); two counts of
forcible oral copulation of the vagina and anus of a child under 14 years old
and more than seven years younger than the defendant (§ 269, subd. (a)(4);
counts 2 and 3); and commission of a lewd act upon a child under 14 years old
(§ 288, subd. (a); count 4). The jury
further found true, as to each count, the multiple victims allegation (§
667.61, subd. (e)(5)). Counts 1, 2, and
3 were committed against Jane Doe 1 and count 4 was committed against Jane Doe
2. The trial court sentenced defendant
to 60 years to life in prison.

Defendant
contends his Sixth Amendment right to
confrontation was violated by the trial court allowing a deoxyribonucleic
acid (DNA) laboratory supervisor to testify as to the results of DNA testing
performed by another person. Defendant
also argues that the court erred in imposing consecutive sentences for counts 2
and 3 since the offenses were not committed on separate occasions. In addition, defendant asserts that the court
miscalculated his actual credits for time served and failed to award conduct
credits under section 2933.1.
Defendant's abstract of judgment also misstates his sentence.

We
conclude there was no prejudicial error as to the admission of DNA evidence but
agree there was sentencing error, as defendant asserts, requiring reversal of
defendant's sentences on counts 2 and 3, resentencing on those counts,
recalculation of defendant's presentence credits, and correction of the
abstract of judgment.

1. Facts

Charges Involving Doe 1

On May 18, 2007, Doe 1, who was seven years old, stayed at the home
of her neighbor, Angela Medel (Angie), while Doe 1's mother went grocery
shopping with Angie in the late afternoon.
Doe 1 did not go with her mother because she had a stomach ache. Angie's father, defendant, who had been
living at Angie's home for several months, stayed home with Doe 1 and Angie's
children, Isaac and Cynthia, who were Doe 1's friends. Angie's older brother, Peter Medel, Jr.
(Peter), was also there.

Doe 1
testified at trial that she stayed inside on the couch, while Isaac and Cynthia
played outside, because she had a stomach ache. Doe 1 wanted to go outside but defendant told
her not to and to lie down on the couch.

While
Doe 1 was lying on the couch, defendant briefly put his tongue on her genitals
and inserted his penis into her anus.
Doe 1 felt afraid when he was doing this. No one else, other than Doe 1 and defendant,
was present. Afterwards, she told her
mother what happened.

Doe
1's mother (mother) testified that when she and Angie returned from shopping,
Doe 1 was walking out of Angie's apartment.
The other children were outside playing.
Doe 1 said she did not feel well and went home to her room and slept the
rest of the evening. The next morning
Doe 1 told her mother, â€