P. v. Hernandez
An amended information accused defendant Julio Hernandez of 11 counts of lewd and lascivious acts with a child under the age of 14 years (Pen. Code, 288, subd. (a); further section references are to the Penal Code unless otherwise specified) and alleged that he personally inflicted great bodily injury ( 12022.7, subd. (a)) and had substantial sexual conduct with the child ( 1203.066, subd. (a)(8)). A jury convicted defendant on counts one, five, six, seven, eight, and ten, acquitted him on counts three and four, and could not reach a verdict on counts two, nine, and eleven. The great bodily injury allegation was found true as to count seven, and the substantial sexual conduct allegation was found true as to counts six, seven, eight, and ten.[1] Defendant was sentenced to state prison for 21 years, consisting of the upper term of eight years on count seven, plus consecutive terms of two years each on counts one, five, six, eight, and ten, and a consecutive term of three years for the great bodily injury enhancement. The counts on which the jury had deadlocked were dismissed in the interest of justice.
On appeal, defendant claims the trial court erred by (1) allowing into evidence his statement describing a sexual dream that he had about a 12-year-old girl, (2) failing to instruct sua sponte on the defense of accident or mistake, and (3) imposing the upper term for count seven based on facts not found true by the jury. Court affirm the judgment.
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