Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 26407-01
DAVIS, J.
Appellant Clarence D. was adjudicated to have committed the offense of a lewd and lascivious act (count 1--Pen. Code, § 288, subd. (a)) and the offense of continuous sexual abuse (count 2--Pen. Code, § 288.5) against his younger sister, J., between August 1, 1994, and October 31, 2005.
Hereafter, undesignated section references will be to the Penal Code.
Clarence was declared a ward of the court and placed on probation. The juvenile court found the maximum term of confinement for count 2 to be 16 years; the court stayed an eight-year maximum term on count 1.
On appeal, Clarence contends the adjudication on count 1 must be vacated, citing section 288.5, subdivision (c), and People v. Johnson (2002) 28 Cal.4th 240 (Johnson). The People agree. So do we.
At the time of the offenses here, section 288.5, which delineates the offense of continuous sexual abuse, stated in subdivision (c): “No 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. 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.”
With no effect on our analysis, section 288.5, subdivision (c), was amended in 2006 to read: “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.” (Stats. 2006, ch. 337, § 8.)
In Johnson, our state Supreme Court interpreted section 288.5, subdivision (c). Johnson concluded that if a defendant may be charged, only in the alternative, with the crime of continuous sexual abuse and with another felony sexual crime if the two offenses involve the same victim and time period, then that defendant may not be convicted of the two offenses in the conjunctive. (Johnson, supra, 28 Cal.4th at p. 248; see id. at p. 245.)
In light of section 288.5, subdivision (c), and Johnson, Clarence may not be adjudicated of both counts 1 and 2 here. When multiple convictions are obtained in violation of section 288.5, either the continuous abuse conviction or the specific offense conviction must be vacated. (People v. Bautista (2005) 129 Cal.App.4th 1431, 1437-1438; see Johnson, supra, 28 Cal.4th at p. 245.) The conviction that should remain is the one most commensurate with culpability; here, that is the adjudication on count 2. (Bautista, supra, at pp. 1437-1438.)
Disposition
The adjudication on count 1 is vacated. The adjudication on count 2 is affirmed.
We concur: BLEASE , Acting P.J., HULL , J.