P. v. Gabay
An information accused defendant Anthony Gabay of 16 counts of lewd and lascivious acts with a child under age 14 (Pen. Code, 288, subd. (a)[1]; counts one through fifteen and seventeen), and one count of forcible lewd acts on a child under age 14 ( 288, subd. (b)(1); count sixteen). The information further alleged defendant committed the offenses against two or more victims. ( 667.61, subd. (e)(5).)
A jury convicted defendant of counts one, four through ten, thirteen, and fifteen through seventeen. The special allegation was found to be true. Defendant was acquitted of the remaining counts. He was sentenced to state prison for 60 years to life, consisting of four consecutive terms of 15 years to life on counts one, thirteen, fifteen, and sixteen. Concurrent terms were imposed on the remaining counts.
On appeal, defendant contends: (1) count seventeen must be dismissed because the statute of limitations had elapsed and was not revived by section 803, subdivision (f); and (2) count sixteen (forcible lewd acts with a child) must be reversed because the evidence supported a jury instruction on the lesser included offense of lewd acts with a child, but the instruction was neither requested nor given sua sponte. Court affirm the judgment.
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