P. v. Rosas
Jose Rosas (appellant) appeals the judgment following a jury trial in which he was found guilty of committing five counts of a lewd or lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts 1, 3, 5, 7 & 8),[1] sexual intercourse by a person over 18 years of age with a child who is 10 years of age or younger (§ 288.7, subd. (a); count 2), a forcible lewd or lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1); count 4), and continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a); count 6).[2]
The trial court sentenced appellant to an aggregate determinate term of 30 years, as follows: for count 6, a determinate term of 16 years; for count 4 a consecutive determinate term of eight years; and for counts 1, 7 and 8 consecutive determinate terms of two years each (one-third the middle term of six years). It then imposed, for count 2, a fully consecutive term of 25 years to life. The terms for counts 3 and 5 were imposed concurrently. The total term in state prison was 55 years to life.
He contends that he is entitled to a reduction of his conviction in count 4 by striking the jury findings of duress and/or force and imposing the lesser term of punishment for a violation of section 288, subdivision (a), as the evidence is insufficient to show he accomplished this offense by force and/or duress.
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