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People v. Chism2/18/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant William Henry Chism was charged and found guilty after a jury trial of three counts of molesting a child under the age of 14 years (counts 1, 2, and 3) (Pen. Code, § 288, subd. (a)), three counts of molesting a 15 year-old child by a person more than 10 years older than the child (counts 8, 9, and 12)(§ 288, subd. (c)(1)), one count of oral copulation upon an unconscious person (count 4)(§ 288a, subd. (f)), one count of attempted forcible oral copulation (count 10)(§§ 664, 288a, subd. (c)(2)), three counts of forcible masturbation (counts 5, 6, and 7) (§ 243.4, subd. (c)), one count of forcible rape (count 11)(§ 261, subd. (a)(2)), one count of misdemeanor child molestation (count 15)(§ 647.6, subd. (a), and one count of felony failure to register as a sex offender (count 16). (§ 290, subd. (g)(2).) The trial court found true, two prior felony conviction allegations of forcible oral copulation on a minor (§ 288a, subd. (c)) under the three strikes law (§ 667, subd. (a)) and imposed an indeterminate prison sentence of 275 years to life plus a 10 year determinate term. Defendant appeals from the judgment and sentence.
On appeal he raises numerous claims of error including evidentiary error, insufficiency of the evidence on counts 5, 6, 7, and 16, and sentencing error. Having received a dearth of analytical assistance from the Attorney General, we reverse the convictions on counts 5 and 7, vacate the sentences imposed on those two counts, and in all other respects, affirm the judgment and sentence imposed.
STATEMENT OF FACTS
A. The Prosecution's Case
1. Sexual Offenses
S. B. lived with her mother Margarette T. and her three younger siblings. Defendant, who was Margarette T.'s boyfriend, moved in with the T. family in 1995 sometime between Thanksgiving and Christmas.
The first time defendant touched S. B. in a way that made her uncomfortable, was in 1997 when she was 12 years old and living in Oak Park. It was the middle of the night and she was sleeping in her mother's bed. She had climbed into the bed where her mother and defendant were both sleeping because there were large rats in the house and she was scared. She fell back to sleep, but was awakened when she felt defendant's hand inside her panties. He was lying behind her and was rubbing her vagina with his finger.
A couple of weeks later, defendant did the same thing to S. B. It was nighttime and she climbed in bed with her mother and defendant after they had fallen asleep because of the rats. She went back to sleep and was again awakened when she felt defendant's hand inside her pants rubbing her vagina. When she opened her eyes, she saw him propped up on his elbow, watching television. She was too scared to move, so she kept still and said nothing. He continued to rub her vagina for a long time.
During the summer of 1997, S. B.'s 16-year-old friend Angela spent the night at the T. residence. She was nervous around defendant because of the way he looked at her and the comments he made to her such as "nice body." The two girls were watching television with defendant in the living room. Margarette T. was in the hospital and defendant told the girls to get on the bed or he would take Angela home. They told him they did not want to and Angela was scared. Defendant kept tickling them and said he would not stop u
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