P. v. Gonzalez
Nicholas Juan Gonzalez (appellant) was charged with four felony counts involving two victims: in count 1, with forcible rape (Pen. Code, 261, subd. (a)(2)) of D.C. between August 1 and October 31, 2006,[1]in count 2, with a forcible lewd act ( 288, subd. (b)(1)) upon D.C. between August 1 and October 31, 2006; in count 3, with sexual battery ( 243.4, subd. (a)) upon J.T. by touching her vaginal area while restraining her, between July 1 and 31, 2007; and in count 4, with sexual battery ( 243.4, subd. (a)) upon J.T. by touching her breasts while restraining her, between July 1 and 31, 2007. The jury found appellant not guilty of the charged offenses but convicted him of the lesser included offenses of misdemeanor battery ( 242) in count 1, misdemeanor assault ( 240) in count 2, and misdemeanor sexual battery ( 243.4, subd. (e)(1)) in counts 3 and 4. The court placed appellant on probation for three years, with conditions including service of 120 days in the county jail on count 4. The court imposed various fines and fees. On appeal, appellant contends that the trial court erred when it admitted a statement made by J.T. as a spontaneous statement and that counts 1 and 2 must be reversed because there is insufficient evidence that the assault and battery were committed within the one-year period before the complaint was filed. Appellant also contends, and respondent concedes, that the conviction for misdemeanor assault must be reversed because it is a lesser included offense of the conviction for misdemeanor battery. Court reverse the misdemeanor assault conviction and strike the attached fees and fines. Court also order modification of the judgment with respect to the fine imposed on count 1. In all other respects, Court affirm.
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