P. v. Cortez
A jury convicted defendant Vidal Lopez Cortez of all six counts with which he was charged: (1) lewd act upon a child under age 14 (Pen. Code, § 288, subd. (a));[1] (2) forcible lewd act upon a child under age 14 (§ 288, subd. (b)(1)); (3) aggravated sexual assault of a child (§ 269, subd. (a)(3)); (4) attempted oral copulation with a person under age 14 (§ 288a, subd. (c)(1)); (5) sodomy of a person under age 14 (§ 286, subd. (c)(1)); and (6) sodomy by force (§ 286, subd. (c)(2)). After dismissing count 1 as a lesser included offense of count 2, the trial court sentenced defendant to 21 years to life in state prison. The sentence consisted of a 15 years to life term for count 3, a consecutive six year term for count 2, and a concurrent three year term for count 4. The court stayed execution of sentence on counts 5 and 6 pursuant to section 654.
Defendant raises three issues on appeal. First, as to count 2, he claims there was insufficient evidence of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim†(§ 288, subd. (b)(1)). Second, defendant posits the court improperly sentenced him to a consecutive six-year determinate sentence for conduct (touching the victim’s penis) that occurred at the same time as the conduct resulting in defendant’s indeterminate sentence of 15 years to life in prison (sodomizing the victim). Third, defendant asserts the court should have awarded him 718 custody credits rather than 717 custody credits.[2] We affirm.
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