Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA056850 Karen J. Nudell, Judge.
David M.Thompson for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence E. Winters and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent
MANELLA, J.
Robert A. Smith appeals from the judgment entered following his no contest plea to six counts of continuous sexual abuse with a child under the age of 14 years, counts 1-6 (Pen. Code, § 288.5, subd. (a)); two counts of unlawful sexual intercourse with a minor under the age of 16 years, counts 7 and 8 (Pen. Code, § 261.5, subd. (d)); unlawful sexual intercourse with a minor, count 9 (Pen. Code, § 261.5, subd. (c)); and using a minor for sex acts, count 10 (Pen. Code, § 311.4, subd. (c)). He was sentenced to prison for 48 years consisting of in count 1, the upper term of 16 years; in counts 2 and 3, two consecutive terms of 16 years; in counts 4, 5, and 6, 16 years each, concurrent; in counts 7 and 8, four years each, concurrent; and in counts 9 and 10, three years each, concurrent. Appellant contends the convictions in counts 2, 3, 4, 5, and 6 must be reversed, and that the trial court erred in calculating his presentence credits. For reasons stated in the opinion we reverse appellant’s convictions in counts 2 through 6 and remand the matter to the trial court with directions to dismiss counts 2 through 6, to set aside the sentence and resentence appellant on the remaining counts, and to award appellant additional days of presentence credits. Additionally, we direct the trial court to impose a court security fee pursuant to Penal Code section 1465.8 for each conviction.
The information alleged in count 1, the continuous sexual abuse occurred on or between March 17, 2002 and December 31, 2002; in count 2, on or between January 1, 2003 and March 16, 2003; in count 3, on or between March 17, 2003 and December 31, 2003; in count 4, on or between January 1, 2004 and March 16, 2004; in count 5, on or between March 17, 2004 and December 31, 2004; and in count 6, on or between January 1, 2005 and March 16, 2005. Count 7 alleged the unlawful sexual intercourse with a minor under 16 years of age occurred on or between March 17, 2005 and March 16, 2006; and in count 8 occurred on or between March 17, 2006 and September 1, 2007; count 9 alleged the unlawful sexual intercourse with a minor occurred on or between March 17, 2007 and September 1, 2007. Count 10 alleged the crime of using a minor for sex acts occurred on or between January 1, 2007 and September 1, 2007. E.K. was the only victim named in the charges.
Respondent correctly observes the trial court erred in imposing only one $20 court security fee. Penal Code section 1465.8 requires the court to impose a fee of $20 on every conviction for a criminal offense. Upon remand the trial court is instructed to do so. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.)
FACTUAL AND PROCEDURAL HISTORY
According to the probation report, appellant lived with the victim’s mother and younger sisters and cared for the girls while their mother worked. The mother at times worked out of the state six days per week. From the time the victim was 11 until she was 16, appellant sexually abused her, including sexual intercourse and oral copulation. The victim told her mother about the abuse when the victim believed appellant was going to start assaulting her younger sister. Videotapes recording the abuse were recovered.
DISCUSSION
I
Appellant contends five of the convictions for continuous sexual abuse with a child under the age of 14 (Pen. Code, § 288.5, subd. (a)) (counts 2, 3, 4, 5, and 6) must be reversed and the counts dismissed. Respondent agrees and requests that this court reverse appellant’s convictions on these counts and remand the case to the trial court with directions to dismiss the counts and to resentence on the remaining counts.
Penal Code section 288.5 provides: “(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.... [¶] (c) 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.”
“Enacted in 1989, section 288.5 was aimed at solving a recurrent problem in the prosecution of so-called resident child molesters: Because of the age of the victim and the repeated and continual nature of the offenses, trial testimony often failed to identify with specificity the date or place of particular charged acts, and the defense’s ability to respond to specific charges arguably was impaired. A line of Court of Appeal decisions beginning with People v. Van Hoek (1988) 200 Cal.App.3d 811... reversed convictions obtained through the use of such ‘generic’ testimony, concluding that the inability to effectively defend against such charges deprived defendants of due process and that such proceedings improperly compromised the constitutional guarantee of jury unanimity. [Citations.] [Fn.omitted.] [¶] The Legislature responded to the Van Hoek line of cases by enacting section 288.5. (Stats. 1989, ch. 1402, § 1, p. 6138.) In a prosecution under the statute, the trier of fact need unanimously agree only that the requisite number of specified sexual acts occurred, not which acts constituted the requisite number. [Citation.] The statute, however, imposes certain limits on the prosecution’s power to charge both continuous sexual abuse and specific sexual offenses in the same proceeding. A defendant may be charged with only one count of continuous sexual abuse unless multiple victims are involved, in which case a separate count may be charged for each victim. [Citation.] And, central to this case, ‘[n]o 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.’ [Citation.]” (People v. Johnson (2002) 28 Cal.4th 240, 242-243.)
In People v. Johnson, supra, 28 Cal.4th 240, our Supreme Court was called upon to interpret the Penal Code section 288.5, subdivision (c) requirement that “‘[n]o 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... is charged in the alternative,’....” (Id. at p. 244.) In doing so, the court observed, its “role in construing a statute is to ascertain the intent of the Legislature in order to effectuate the purpose of the law. [Citation.] Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning and construing them in context. [Citation.] If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction. [Citations.] If the statutory language contains no ambiguity, the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs. [Citations.]” (People v. Johnson, supra, 28 Cal.4th 240, 244.) The court concluded that that portion of the statute was clear and unambiguous. (Id. at p. 248.)
Similarly, the portion of Penal Code section 288.5, subdivision (c) which reads “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” is clear and unambiguous. The plain language of the statute precludes convictions of multiple counts of continuous sexual abuse on the same victim. Appellant’s convictions in counts 2 through 6 must, therefore, be reversed.
Remaining are counts 1, 7, 8, 9, and 10. “[A] felony sentence under the determinate sentencing law is an integrated whole... regardless of which element of that whole is invalidated by an appellate reversal.” (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258, fn. 6.) As such, upon remand for resentencing, the trial court is entitled to consider the entire sentencing scheme. (Id. at p. 1258.)
II
Appellant contends he is entitled to six additional days of presentence custody credits. We agree. He was awarded 266 days of actual custody credit and 40 days of conduct credit for a total of 306 days.
According to the record, appellant was arrested on September 16, 2007, and remained in custody until he was sentenced on June 13, 2008. Thus, he was entitled to 272 days of actual custody credit. Additionally, pursuant to Penal Code section 2933.1, his conduct credit is calculated at 15 percent of the actual time in custody, amounting to 40 days. The total presentence custody credits should be 312 days.
DISPOSITION
Counts 2 through 6 are reversed and the matter is remanded to the trial court with directions to dismiss counts 2 through 6, to set aside the sentence and resentence appellant on the remaining counts, to recalculate presentence custody credits, and to impose court security fees for all convictions. In all other respects the judgment is affirmed.
We concur: WILLHITE, Acting P.J., SUZUKAWA, J.