Filed 8/21/17 P. v. Amezcua CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Arcadio Avalos Amezcua was convicted by jury trial of various crimes arising from the sexual abuse of his nieces. On appeal, the parties agree, as do we, that one of the sexual abuse convictions must be reversed and stricken.

PROCEDURAL SUMMARY

On October 8, 2015, a jury found defendant guilty of oral copulation or sexual penetration of victim 1, a child 10 years of age or younger, during the period from July 11, 2005, through July 10, 2010 (Pen. Code, § 288.7, subd. (b);[1] count 1); continuous sexual abuse of victim 1, a child under the age of 14 years, during the period from July 11, 2005, through July 10, 2012 (§ 288.5; count 2); and lewd act upon victim 2, a child under the age of 14 years, during the period from August 1, 2012, through December 31, 2012 (§ 288, subd. (a); count 3). The jury found true the allegation of multiple victims as to counts 2 and 3 (§ 667.61, subd. (e)(4)).

On January 8, 2016, the trial court sentenced defendant to prison for 50 years to life: 25 years to life on both counts 2 and 3, to be served consecutively. (See § 667.61, subd. (j)(2).) On count 1, the court imposed 15 years to life, to be served concurrently to the term in count 2.

DISCUSSION

The parties agree that the prosecutor should not have charged defendant with count 1, the specific act of sexual abuse against victim 1, because of the charge on count 2, the continuous sexual abuse of the same victim and during a period of time that encompassed the specific act.[2] Thus the conviction on count 1 must be reversed and stricken.

Section 288.5, subdivision (c) provides:

“No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim.”

In People v. Johnson (2002) 28 Cal.4th 240, the Supreme Court explained this limitation as follows:

“Penal Code section 288.5 defines the crime of continuous sexual abuse of a child. Any person who either resides in the same home with a minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with the child or three or more acts of lewd or lascivious conduct, is guilty of the offense of continuous sexual abuse. (Pen. Code, § 288.5, subd. (a); see id., §§ 1203.066, subd. (b) [defining substantial sexual conduct], 288, subd. (a) [defining lewd or lascivious conduct]; further statutory references are to the Penal Code unless otherwise specified.) Enacted in 1989, section 288.5 was aimed at solving a recurrent problem in the prosecution of so-called resident child molesters: Because of the age of the victim and the repeated and continual nature of the offenses, trial testimony often failed to identify with specificity the date or place of particular charged acts, and the defense’s ability to respond to specific charges arguably was impaired. A line of Court of Appeal decisions beginning with People v. Van Hoek (1988) 200 Cal.App.3d 811 (Van Hoek) reversed convictions obtained through the use of such ‘generic’ testimony, concluding that the inability to effectively defend against such charges deprived defendants of due process and that such proceedings improperly compromised the constitutional guarantee of jury unanimity. [Citations.]

“The Legislature responded to the Van Hoek line of cases by enacting section 288.5. (Stats. 1989, ch. 1402, § 1, p. 6138.) In a prosecution under the statute, the trier of fact need unanimously agree only that the requisite number of specified sexual acts occurred, not which acts constituted the requisite number. (§ 288.5, subd. (b).) The statute, however, imposes certain limits on the prosecution’s power to charge both continuous sexual abuse and specific sexual offenses in the same proceeding. A defendant may be charged with only one count of continuous sexual abuse unless multiple victims are involved, in which case a separate count may be charged for each victim. (§ 288.5, subd. (c).) And, central to this case, ‘[n]o other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative.’ ” (People v. Johnson, supra, 28 Cal.4th at p. 243, fn. omitted.)

DISPOSITION

The conviction on count 1 (Pen. Code, § 288.7, subd. (b)) is reversed and stricken. The trial court is directed to correct the abstract of judgment and to forward certified copies to the appropriate authorities.