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People v. Pena

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 4, 2012
E051620 (Cal. Ct. App. Jan. 4, 2012)

Opinion

E051620 Super.Ct.No. SWF026794

01-04-2012

THE PEOPLE, Plaintiff and Respondent, v. ALEX PACHECO PENA, Defendant and Appellant.

Thomas Owen, 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, Peter Quon, Jr., and Lilia E. Garcia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 the Superior Court of Riverside County. Albert J. Wojcik, Judge. Reversed in part; affirmed in part.

Thomas Owen, 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, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Alex Pacheco Pena (defendant) seeks reversal of a conviction for forcibly sodomizing his 10-year-old daughter.

FACTS AND PROCEDURAL HISTORY

Between 2004 and 2006, defendant entered his daughter's bedroom at night two or three times a week and sodomized her. "[H]e stuck his penis in my lower end [butt]." The molestations began in 2004, when the victim was 10 years old, and continued until she was about 12, at which time she was removed from the home and placed with new parents.

On April 28, 2010, the District Attorney of Riverside County filed a third amended information charging defendant with three or more willful, forcible lewd acts with a child under the age of 14 years between December 17, 2004, and December 16, 2006 (Pen. Code, § 288.5, count 1), and with forcible sodomy upon the same victim on December 17, 2004 (§§ 269, subd. (a)(3), 286). The information further alleged that defendant had suffered two prior serious and violent felony convictions. (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A).)

All further statutory references are to the Penal Code unless otherwise indicated.

On May 17, 2010, a jury convicted defendant of both charged counts, and the trial court found the strike priors true. On August 20, 2010, defendant was sentenced to 93 years to life in state prison: 48 years on count 1 and 45 years on count 2.

DISCUSSION

Defendant argues that his conviction on count 2 must be reversed because a person cannot be convicted of both continuous sexual abuse of a child and a specific sexual act against the same victim when the dates of the alleged offenses overlap. The People concede the point. The parties are correct.

Subdivision (c) of section 288.5 provides that "[n]o 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." "'Substantial sexual conduct'" includes the penetration of the victim's rectum by the penis of the offender. (§ 1203.066, subd. (b).)

However, since the date of defendant's specific act of sodomy against his daughter allegedly fell within the time frame of his continuous sexual abuse of the same child, he cannot be convicted of both crimes. (People v. Johnson (2002) 28 Cal.4th 240, 248.) The specific sexual offense should have been charged outside the period of the alleged continuous abuse, or the two crimes should have been charged in the alternative. (Ibid.; see also People v. Torres (2002) 102 Cal.App.4th 1053, 1059 [prosecutor does not have to charge continuous sexual abuse over the entire period of time the abuse occurred and may also charge specific offenses that occurred outside the alleged § 288.5 period].) The information in this case failed to do either, and defendant's conviction on count 2 must therefore be reversed. (Johnson, at p. 248.)

DISPOSITION

Defendant's conviction for aggravated sexual assault of a child under 14 years of age (§§ 269, subd. (a)(3), count 2) is reversed, and the sentence on that count is vacated. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.
We concur:

KING

J.

CODRINGTON

J.


Summaries of

People v. Pena

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 4, 2012
E051620 (Cal. Ct. App. Jan. 4, 2012)
Case details for

People v. Pena

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALEX PACHECO PENA, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 4, 2012

Citations

E051620 (Cal. Ct. App. Jan. 4, 2012)