Opinion
E051868
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. DAVID OLIVA GUERRERO, Defendant and Appellant.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF149502)
OPINION
APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge. Affirmed in part; reversed in part with directions.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Based upon recurring, multiple offenses perpetrated on the same victim from 1996 to 2000, a jury convicted defendant and appellant David Oliva Guerrero of rape of a child (former Pen. Code, § 269, subd. (a)(1)) and continuous sexual abuse of a child (§ 288.5). The trial court imposed, consecutively, a 15-year-to-life term for the rape conviction and the midterm of 12 years for the continuous sexual abuse conviction.
All further statutory references are to the Penal Code.
Because both convictions involved the same victim in the same time frame, defendant "cannot stand convicted of both." (People v. Torres (2002) 102 Cal.App.4th 1053, 1055 (Torres).)
Defendant contends the rape conviction must be reversed. The People contend the continuous sexual abuse conviction should be reversed as the rape conviction is most commensurate with defendant's culpability. We reverse the conviction for continuous sexual abuse and otherwise affirm.
DISCUSSION
Subdivision (c) of section 288.5 precludes charging a violation of section 288.5 and the charging of any offense involving the same victim in the same period of time. Accordingly, continuous sexual abuse in violation of section 288.5 and any discrete sexual offense against the same victim, which occurred within the period of the continuous sexual abuse, must be charged in the alternative and a defendant may stand convicted of either offense, but not both. (People v. Johnson (2002) 28 Cal.4th 240, 244-248 (Johnson).)
When there have been such multiple convictions, "either the continuous abuse conviction or the convictions on the specific offenses must be vacated." (Johnson, supra, 28 Cal.4th at p. 245.) "[S]ection 288.5, subdivision (c) gives the prosecutor maximum flexibility to allege and prove not only a continuous sexual abuse count, but also specific felony offenses commensurate with the defendant's culpability, subject only to the limitation that the defendant may not be convicted of both continuous sexual abuse and specific felony sex offenses committed in the same period. It therefore is also appropriate, in deciding which convictions to vacate as the remedy for a violation of the proscription against multiple convictions set forth in section 288.5, subdivision (c), that we leave appellant standing convicted of the alternative offenses that are most commensurate with his culpability." (Torres, supra, 102 Cal.App.4th at p. 1059.)
In Torres, the trial court imposed a longer aggregate sentence for the specific offenses and stayed execution of sentence on the continuous sexual abuse violation; thus, the appellate court concluded the appropriate remedy was to reverse the continuous sexual abuse conviction because it carried the lower sentence. (Torres, supra, 102 Cal.App.4th at pp. 1060-1061; see also People v. Alvarez (2002) 100 Cal.App.4th 1170, 1177 [dismissal of continuing sexual abuse charge appropriate when the individual counts of lewd conduct carried a longer sentence].) In other words, if the individual count or counts provide a longer sentence then they should be upheld; if the continuous sexual abuse count provides a longer sentence, then it should be upheld.
Here, child rape carries a greater penalty, specifically, an indeterminate sentence of 15 years to life in state prison. (Former § 269, subd. (a)(1).) Continuous sexual abuse is subject to a determinate term of six, 12, or 16 years in state prison. (§ 288.5, subd. (a).) The Legislature has clearly determined that rape of a child is a far more egregious offense than continuous sexual abuse. Therefore, defendant's conviction for continuous sexual abuse (§ 288.5) should be reversed.
Defendant urges us not to follow Torres but to instead consider the continuous sexual abuse conviction to be the more commensurate offense because that offense more closely describes the continuing nature of the conduct defendant inflicted upon the victim. However, the comparison is between the culpability, i.e. punishment (see People v. Virgil (2011) 51 Cal.4th 1210, 1287 [discussing culpability/punishment analysis in intracase proportionality]), and not the description or long-term consequences of each offense. Furthermore, it would be absurd to reduce defendant's culpability because he continuously sexually assaulted the victim during the same period of years in which he raped her.
DISPOSITION
The continuous sexual abuse of a child conviction pursuant to Penal Code section 288.5 is reversed. The superior court clerk is directed to prepare a new minute order and new abstract of judgment reflecting the reversal and concomitant reductions in the per count facilities assessment (Govt. Code, § 70373) and court security fee (Pen. Code, § 1465.8), as well as correcting the erroneous identification of defendant's convictions as having been by plea rather than jury trial, and forward certified copies of the minute order and abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
The existing determinate and indeterminate abstracts both erroneously indicate that defendant's conviction was by plea rather than by jury trial.
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.