Opinion
E051110 Super.Ct.No. SWF027814
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK STEVEN HARVEY, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed in part; reversed in part.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Mark Steven Harvey was an acquaintance of the victim's family. In November 1999, the then 12-year-old victim attended a party at her sister's house. The victim was feverish so she lay down in her sister's bedroom. Defendant entered the room. Defendant touched both the inside and outside of the victim's vagina with his hand. The victim tried to resist. Defendant got on top of the victim and put his penis inside her vagina. He had his penis inside of the victim for five to seven minutes before the victim was able to kick him and he got off of her.
A jury convicted defendant of forcible rape (Pen. Code, § 261, subd. (a)(2),count 1), forcibly committing a lewd act on a child under the age of 14 (§ 288, subd. (b)(1), count 2), forcible sexual penetration (former § 289, subd. (a)(1), now subd. (a)(1)(A), count 3), and forcible rape of a child (§ 269, subd. (a)(1), count 5). The trial court imposed an indeterminate term of 15 years to life for count 5. For count 1, it imposed the midterm of six years but stayed it pursuant to section 654. The trial court then imposed six year concurrent midterms for both counts 2 and 3. Thus, defendant was sentenced to a total prison term of 15 years to life.
Undesignated statutory references are to the Penal Code.
Defendant contends, and the People concede, that his count 1 forcible rape conviction must be reversed as it is a lesser included offense to his count 5 forcible rape of a child conviction. They are correct. Rape under subdivision (a)(2) of section 261 is an element of child rape under subdivision (a)(1) of section 269. Multiple convictions based upon necessarily included offenses are prohibited. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Accordingly, we shall reverse defendant's count 1 rape conviction.
DISPOSITION
The count 1 forcible rape conviction (§ 261, subd. (a)(2)) is reversed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur: HOLLENHORST
J.
RICHLI
J.