P. v. Williams
Defendant Rodney James Williams violated Penal Code section 288, subdivision (a),[1] by committing lewd and lascivious acts against two children he babysat: six-year-old Jane Doe 1 and five-year-old Jane Doe 2. Subsequently, he babysat Jane Doe 1, Jane Doe 2, and a third child, 10-year-old Jane Doe 3. When the children were in the living room, he played a pornographic movie on the television while Jane Doe 2 danced partly naked. Jane Doe 3 put a pillow in front of her face because she did not want to watch. Defendant pulled the pillow away from her. Shortly afterward, Jane Doe 1’s mother pulled into the driveway. Defendant stopped the videotape and told the children not to say anything.
In addition to being convicted of violating section 288, subdivision (a) against Jane Doe 1 and Jane Doe 2 and of exhibiting harmful matter to minors with the intent to seduce (§ 288.2, subd. (a)), he was convicted of attempted lewd and lascivious conduct against Jane Doe 3. He was sentenced to an indeterminate term of 15 years to life plus a consecutive five-year determinate term.
Defendant does not challenge his convictions for the crimes he committed against Jane Doe 1 and Jane Doe 2. His primary contention on appeal is that the evidence is insufficient to support the conviction for attempted lewd and lascivious acts with Jane Doe 3. He also asserts that the court failed to exercise its discretion when it ordered that the determinate term run consecutive to the indeterminate term. The People dispute defendant’s contention regarding the attempt conviction, but agree that the court failed to exercise its sentencing discretion and that a new sentencing hearing is required.
We will affirm the conviction for attempted lewd and lascivious conduct and direct the court to hold a new sentencing hearing so that it may exercise its sentencing discretion.
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