PEOPLE v. CORNETT
190 Cal.App.4th 845 (2010)
THE PEOPLE, Plaintiff and Respondent,
MICHAEL DAVID CORNETT, Defendant and Appellant.
Court of Appeals of California, First District, Division Two.
December 6, 2010.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, and Moona Nandi, Deputy Attorneys General, for Plaintiff and Respondent.
CERTIFIED FOR PARTIAL PUBLICATION*
KLINE, P. J.—
Defendant Michael David Cornett was charged with molesting his two stepdaughters, 10-year-old Jane Doe 1 and six-year-old Jane Doe 2, with the final instance captured in a photograph taken by defendant's 12-year-old stepson. A jury found defendant guilty on all seven felonies alleged against him, and found all special allegations to be true—including that 11 years earlier he had been convicted of molesting yet another stepdaughter. Defendant was sentenced to 10 years, plus 150 years to life in state prison.
Defendant makes numerous arguments on appeal, asserting myriad errors during trial and at sentencing. The People concede that two of the arguments as to sentencing on count 6 are well taken, and we conclude that an argument as to the conviction on that count has merit as well, requiring a reversal of the conviction on that count.
We shall also reverse the conviction on count 7, alleging commission of a lewd and lascivious act on a child under the age of 14 (because no evidence regarding that offense was presented at the preliminary hearing), modify two rulings made at sentencing, and in all other respects affirm, leaving defendant convicted of six felonies. The judgment is affirmed as modified, a modification that does not affect the aggregate sentence imposed by the trial court.
All these issues, save one, are addressed in the unpublished portion of this opinion. The singular exception, the one issue addressed in the published
portion of the opinion, is an issue apparently never before addressed in California: Was Jane Doe 1, who was 10 years 11 months at the time of the molestation, a "child ... 10 years of age or younger" within Penal Code section 288.7, subdivision (b),1 the offense charged in count 6? We answer in the negative, concluding that "a child who is 10 years of age or younger" excludes children who have passed the 10th anniversary of their birth.