Opinion
G053085
09-20-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE CARMEN SIAN, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10CF0306) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed in part and reversed in part. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was convicted of one count each of sexual intercourse with a child age 10 or younger and continuous sexual abuse. (Pen. Code, §§ 288.7, subd. (a), 288.5, subd. (a).) He alleges a violation of section 288.5, subdivision (c) (hereafter section 288.5(c)), which prohibits dual convictions for continuous sexual abuse and another sex offense involving the same victim and the same time period. While conceding section 288.5(c) was violated in this case, respondent maintains appellant forfeited his right to invoke that provision because he did not demur to the charges. We reject this forfeiture argument and reverse appellant's conviction for continuous sexual abuse. In all other respects, we affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant began molesting his girlfriend's daughter D.M. in 2003, when she was six years old. The molestation originally took the form of inappropriate touching, but by the time D.M. was eight in 2005, appellant was having intercourse with her once or twice a week. The intercourse continued on a weekly basis until appellant got D.M. pregnant in late 2008, when she was 11 years old. After that, appellant moved away, and D.M. ended up having an abortion.
Appellant was charged with two felony sex offenses. Count 1 alleged he engaged in sexual intercourse with a child age 10 or younger. (§ 288.7, subd. (a).) That crime was alleged to have occurred between the time D.M. turned 10 in February 2007 and the time she turned 11 in February 2008.
Count 2 alleged appellant engaged in continuous sexual abuse, which requires three or more acts of substantial sexual conduct, over a period of not less than three months, on a child under the age of 14. (§ 288.5, subd. (a).) This crime was alleged to have occurred between the time D.M. turned 10 in February 2007 and the time she became pregnant in December 2008. As to count 2, it was also alleged appellant inflicted great bodily injury on D.M. (by getting her pregnant) for purposes of the One Strike law (§ 667.61, subds. (b), (e)(3)) and engaged in substantial sexual conduct, thereby rendering him ineligible for probation (§ 1203.066, subd. (a)(8)).
Following a jury trial, appellant was convicted as charged. The trial court sentenced him to 25 years to life in prison on count 1 and a consecutive term of 15 years to life on count 2. This appeal followed.
DISCUSSION
The parties agree this case was prosecuted in violation of section 288.5(c). The only question is whether appellant forfeited his right to raise that issue on appeal by failing to file a demurrer in the trial court. We think not.
As set forth above, count 2 alleged appellant engaged in continuous sexual abuse in violation of section 288.5. That provision was enacted to allow the prosecution of resident child molesters in cases where the victim, because of his or her age, is unable to remember the exact date or place of the charged acts. (People v. Johnson (2002) 28 Cal.4th 240, 242 (Johnson).) However, section 288.5 also "imposes certain limits on the prosecution's power to charge both continuous sexual abuse and specific sexual offenses in the same proceeding." (Id. at p. 243.) As relevant here, section 288.5(c) provides that when the defendant is charged with continuous sexual abuse on a child, "[n]o other act of substantial sexual conduct [including sexual intercourse] . . . involving the same victim may be charged in the same proceeding . . . unless the other charged offense occurred outside the time period [alleged with respect to the continuous sexual abuse charge] or the offense is charged in the alternative." (§ 288.5(c).)
In this case, the Attorney General concedes that under the plain language of section 288.5(c), the two crimes alleged against appellant should have been charged in the alternative because they were alleged to have occurred against the same victim and during the same time period. However, respondent argues, "Just because the information was deficient . . . does not mean that appellant is entitled to relief."
In so arguing, respondent relies on People v. Goldman (2014) 225 Cal.App.4th 950. Goldman held a violation of section 288.5(c) is a mere pleading defect that must be challenged by demurrer to preserve the issue for appeal. (Id. at pp. 956-957.) However, in Johnson, supra, the California Supreme Court expressly stated that prosecutors "may not obtain multiple convictions" when the terms of section 288.5(c) are violated. (Johnson, supra, 28 Cal.4th at p. 248, italics added; see also People v. Bautista (2005) 129 Cal.App.4th 1431, 1436 [interpreting Johnson as precluding multiple convictions under those circumstances]; People v. Torres (2002) 102 Cal.App.4th 1053, 1055 [same].) Since appellant is challenging his underlying convictions as being violative of section 288.5(c), we do not believe the forfeiture rule applies to his case.
While appellant could have demurred to the information on this basis, his failure to do so "does not justify a multiple-conviction that is improper as a matter of law." (People v. Shabtay (2006) 138 Cal.App.4th 1184, 1192 [defendant could challenge unauthorized theft conviction on appeal despite failing to demur in trial court].) "Where, as here, we conclude as a matter of law that multiple convictions are not authorized, the issue may be raised on appeal even in the absence of an objection in the trial court. [Citation]." (Ibid.) Therefore, appellant is entitled to relief.
In light of this holding, we need not consider appellant's alternative argument that his attorney was ineffective for failing to file a demurrer in the trial court. We also need not decide whether, if a demurrer had been filed, the prosecution would have been able to amend the information to comply with section 288.5(c), an issue about which the parties disagree. --------
DISPOSITION
Appellant's conviction for continuous sexual abuse in count 2 is reversed, and his 15-year-to-life sentence on that count is stricken. The clerk of the superior court shall prepare an amended abstract of judgment reflecting this change and send a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment, including appellant's conviction in count 1 for sexual intercourse with a child and his 25-year-to-life sentence on that count, is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.