filed52715p.v.kruseca13.docVIP

Filed 5/27/15 P. v. Kruse CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. RICHARD FREDERICK KRUSE, Defendant and Appellant. A141912 (Mendocino County Super. Ct. No. SCUKCRCR 10-15372) Defendant Richard Frederick Kruse appeals a prison sentence imposed on remand following an earlier appeal in which we found insufficient evidence to support the jury’s verdict of commission of a forcible lewd act upon a child under age 14 (Pen. Code, §?288, subd. (b)(1)) and reduced the conviction to commission of a nonforcible lewd act upon a child under age 14 (§?288, subd. (a)). (People v. Kruse (Dec. 6, 2013, A135642) [nonpub. opn.].) When resentencing defendant, the trial court imposed the upper term of eight years in prison. Defendant contends he received ineffective assistance of counsel at the resentencing hearing and that the court abused its discretion in denying probation and selecting the upper term of imprisonment. We shall affirm the sentence. Trial Evidence The evidence presented at trial is described at length in our opinion issued on the prior appeal. (People v. Kruse (Dec. 6, 2013, A135642) [nonpub. opn.].) We briefly summarize that evidence here. In 2008, defendant was a married 65-year-old man who babysat a girl, seven-year-old J.H., after school and on occasional sleep-overs. In May 2008, J.H. told a social worker that defendant touched her chest, buttocks, and vagina area. The police interviewed defendant. Defendant said J.H. was “definitely being molested” but not by him. He described J.H. as “a very sexual little