Opinion
A095937.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. GRAHAM ROGER-LEE DE-LUIS-CONTI, Defendant and Appellant.
ORDERING MODIFYING OPINION AND DENYING REHEARING
THE COURT:
It is ordered that the opinion filed herein on September 29, 2003, be modified as follows:
At the bottom of page 7, delete footnote 4 and add the following paragraphs:
Alternatively, defendant asserts that if the court did sentence him under the discretionary provision of subdivision (c), the sentence was not supported by substantial evidence. The assertion is not properly before us. First, it was presented without leave of this court in defendants first supplemental brief. (See post, section VI.) Second, it was not adequately presented. Buried as the third point of an "addendum" to defendants initial argument that the court wrongly sentenced him under the mandatory sentencing provision (§ 667.7, subd. (d)), defendants discussion of this point lacks any analysis or discussion of authority relevant to the sufficiency of the evidence to support sentencing under section 667.6, subdivision (c). (See generally People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11; People v. Ladd (1982) 129 Cal.App.3d 257, 261-262; see also Cal. Rules of Court, rule 14(a)(1)(B).)
Even were we to indulge defendants argument on its merits, however, it would fail. Defendant first pulled Jessica onto his lap and fondled her breasts. Then he moved his hand to her vaginal area and fondled her through her clothing. She told him to stop, but he did not. After rubbing the childs vagina for about a minute defendant slid his hands around to her buttocks, which he proceeded to fondle and squeeze. There is no evidence these molestations were simultaneous or that one was merely a means of committing another. (See People v. Coelho, supra, 89 Cal.App.4th at pp. 861, 887-888.) The record supports the trial courts finding that defendant had an opportunity to reflect on each of the charged acts.
The petition for rehearing is denied. There is no change in the judgment.