P. v. Malanche
A jury convicted appellant Jose Casillas Malanche of rape (Pen. Code,[1] § 261, subd. (a)(2); count 1), sodomy (§ 286, subd. (c)(2); count 2), and sexual penetration (§ 289, subd. (a)(1); count 3). The jury also found that appellant personally inflicted great bodily injury on the victim in the commission of each offense. (§ 12022.8, former § 667.61,[2] subd. (b).)
Appellant contends that the trial court erred when it allowed a nurse to testify as to what the victim told her during an examination, because the victim’s statements were translated from Hmong by an unidentified interpreter. Appellant also contends that the trial court failed to instruct the jury on battery as a lesser included offense of sexual penetration and gave the jury a one-sided instruction regarding the use of appellant’s out-of-court statements. Finally, appellant claims that the trial court imposed an unauthorized sentence. Respondent also finds fault with the sentence, but for a different reason.
We agree with respondent that the sentence was unauthorized and remand for resentencing. In all other respects, we affirm the judgment.
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