Opinion
G045144 Super. Ct. No. 08CF2067
06-28-2012
THE PEOPLE, Plaintiff and Respondent, v. JORGE CRUZ ADAN FLORES, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed as amended.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Jorge Cruz Adan Flores of sexual intercourse or sodomy with a child 10 years old or younger (count 1; Pen. Code, § 288.7, subd. (a); all further statutory references are to this code), oral copulation or sexual penetration of a child that age (count 2; § 288.7, subd. (b)), and continuous sexual abuse (count 3; § 288.5, subd. (a)). The court sentenced him to 25 years to life on count 1, a consecutive 15 years to life on count 2, and stayed sentencing on count 3.
Defendant contends the court prejudicially erred in not sua sponte instructing the jury if it had a reasonable doubt about whether he committed sexual intercourse or sodomy with a child aged 10 or younger, or merely the lesser offense of attempting to commit that crime, it could only convict him of the lesser offense. (People v. Dewberry (1959) 51 Cal.2d 548, 555.) We disagree. CALCRIM Nos. 3517 and 220, both given by the court, together instructed the jury on what defendant describes as "the effects of reasonable doubt on the choice between the greater and lesser included offenses."
Defendant asserts CALCRIM No. 3517 simply told the jury how to fill out the verdict forms and that an attempt to commit the greater crime was a lesser included offense. But CALCRIM No. 3517 must be considered in conjunction with CALCRIM No. 220, which instructed the jury the prosecution had to prove defendant guilty beyond a reasonable doubt, otherwise defendant was entitled to an acquittal. CALCRIM No. 3517 reflects and incorporates the principle of reasonable doubt set forth in CALCRIM No. 220, informing the jury it could not find defendant guilty of a greater crime unless all the jurors agreed he was guilty of the greater crime beyond a reasonable doubt. Together the two instructions did not permit the jury to find defendant guilty of the greater offenses, and required it to acquit him of the greater offenses and convict him of the lesser offense where it "has a reasonable doubt about elements of the greater offense and no reasonable doubt about any elements of the lesser," thereby satisfying Dewberry's requirements. (People v. Barajas (2004) 120 Cal.App.4th 787, 793 [discussing CALCRIM No. 3517's predecessor, CALJIC No. 17.10].) That distinguishes this case from People v. Crone (1997) 54 Cal.App.4th 71, on which defendant relies, where the instructions did not "tell[] the jury what to do if it ha[d] a reasonable doubt as to whether the defendant committed the greater or a lesser offense" and "it [did] not appear that the omission was cured by any other instructions." (Id. at pp. 76-77.)
Defendant also argues either counts 1 and 2, or count 3 must be reversed because they involve overlapping timeframes and section 288.5, subdivision (c) proscribes the charging of both continuous sexual abuse and another "act of substantial sexual conduct . . . involving the same victim . . . unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative." The Attorney General agrees, as do we. (People v. Johnson (2002) 28 Cal.4th 240, 245 [section 288.5, subdivision (c) violation mandates "either the continuous abuse conviction or the convictions on the specific offenses must be vacated"].) When section 288.5, subdivision (c) is violated, the remedy is to "'leave appellant standing convicted of the alternative offenses that are most commensurate with his culpability.' [Citation.]" (People v. Bautista (2005) 129 Cal.App.4th 1431, 1437.) Defendant does not dispute his culpability is most commensurate with the section 288.7 convictions, which impose life terms, whereas a violation of section 288.5 only carries a determinate term.
Defendant's conviction on count 3 is vacated. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to Adult Operations, Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.