P. v. Avina
A jury found defendant Jose Guadalupe Avina guilty of committing two counts of lewd acts on a child under the age of 14 (Pen. Code, 288, subd. (a), counts 1 & 2)[1]and that defendant had engaged in substantial sexual conduct with the minor ( 1203.066, subd. (a)(8)).[2] Defendant was sentenced to a total term of 10 years in state prison: the upper term of eight years on count 1, and a consecutive two years for count 2. On appeal, defendant contends (1) CALCRIM Nos. 223, 226, and 302 are erroneous, and even if this court concludes they are not erroneous as written, they were ambiguous, and it was reasonably likely the jury applied the instructions in a way that violated his state and federal constitutional rights; and (2) the trial court erred in imposing the upper term on count 1. Court reject these contentions and affirm the judgment.
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