P. v. Kruse
A jury convicted defendant Richard Kruse of committing a forcible lewd or lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (b)(1).)[1] The trial court sentenced him to a prison term of ten years. Defendant appeals upon contentions that (1) evidence of uncharged lewd acts with another child was wrongly admitted; (2) the trial court failed in its duty to instruct the jury on the lesser included offense of a non-forcible lewd act; (3) there is insufficient evidence that force was used; (4) the court erred in its admission and consideration of certain information during sentencing; and (5) the court failed to provide defendant with a hearing on his ability to pay before ordering him to pay $5,000 for legal assistance he received from the public defender.
We conclude that evidence of uncharged prior lewd acts was properly admitted but that the trial court erred in failing to instruct the jury on the lesser included offense of a non-forcible lewd act. We also find insufficient evidence that defendant used force, violence, duress, menace or fear in committing the act. There was no error in the court’s consideration of certain information at sentencing and we conclude that defendant forfeited his claim that legal costs were imposed upon him without a determination of his ability to pay. We shall modify the judgment to reduce the conviction from commission of a forcible lewd act to commission of a non-forcible lewd act and remand for resentencing.
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