Opinion Bank # O-273 (Re: F 17.01 n27 [Juror Unanimity: Sexual Molestation (PC 288)].)
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent, A080740
v. (Alameda County
Super. Ct. No. 123279)
GEORGE EDWARD JOHNSON,
Defendant and Appellant.
Following a jury trial, appellant George Edward Johnson was convicted of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5); committing a lewd and lascivious act upon a child under the age of 14 (§ 288, subd. (a)); and penetration by a foreign object (§ 289, subd. (j)). [Footnote 1] Following remand of appellant’s case for resentencing after his first appeal (People v. Johnson (June 27, 1997) A072557 [nonpub. opn.]), appellant has brought a second appeal. He claims the Court erred in imposing consecutive sentences for continuous sexual abuse and penetration by a foreign object based on the same conduct with the same victim. For the reasons set forth below, we conclude the trial court erred by imposing full consecutive terms for these convictions. Consequently, we again remand this case to the trial court for resentencing.
Facts and Procedural Background
It was established at trial that beginning in 1993 and continuing throughout 1995, appellant engaged in continuous inappropriate sexual misconduct with his stepdaughter, K.L. Evidence of appellant’s guilt included that sometime in the last half of October 1994, K.L. became pregnant. In February 1995, she had an abortion. Based upon DNA samples extracted from the fetal tissue, the certainty of appellant’s paternity was 99.999999 percent.
Appellant was originally sentenced to a total unstayed term of 20 years in state
prison computed as follows: Appellant received the 12-year midterm for violating section 288.5 (continuous sexual abuse of a child) and an aggravated 8-year consecutive term for violating section 288, subdivision (a) (lewd and lascivious act). The trial court stayed the midterm of 6 years for violating section 289, subdivision (j) (penetration by a foreign object) and also stayed a 1-year section 667.5, subdivision (b) sentence enhancement (prior prison term for the commission of a felony).
In appellant’s first appeal, he raised various issues, including a claim that his conviction for lewd and lascivious conduct (§ 288, subd. (a)) was subject to reversal because it was impossible to determine whether the jury unanimously agreed on a specific unlawful act when finding appellant guilty. We found this contention meritorious and reversed appellant’s conviction for violating section 288, subdivision (a). [Footnote 2]
On remand, the trial court resentenced defendant to an aggregate unstayed prison term of 18 years. The trial court imposed the 12-year midterm for violating section 288.5 (continuous sexual abuse of a child) along with a consecutive midterm of 6 years for violating section 289, subdivision (j) (penetration by a foreign object). The court once again stayed the 1 year section 667.5, subdivision (b) sentence enhancement.
Appellant asks that this court vacate his conviction on count three, the section 289, subdivision (j) violation or, alternatively, stay the 6-year consecutive sentence imposed for that conviction. As noted, appellant was convicted and given consecutive sentences for count one, continuous sexual abuse of a child “between August 1994 and December 1994″ in violation of section 288.5, and count three, penetration by a foreign object, “on or between August 1993 and August 1994″ in violation of section 289, subdivision (j). (Italics added.)
Pursuant to section 288.5 , a defendant may not be charged with a section 288.5 violation and any “… other felony sex offense 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.” (§ 288.5, subd. (c).) Appellant argues that because of this statutory limitation, he could not be charged and convicted on both count one and count three, because both offenses encompassed the August 1994 time frame.
Under the reasoning of People v. Valdez (1994) 23 Cal.App.4th 46, review denied (Valdez), there is nothing inherently improper in the prosecution and conviction of appellant on both counts. The court there examined the language of section 288.5, subdivision (c) and interpreted it to mean that a defendant may be charged and convicted of continuous sexual abuse and the specific offenses underlying the continuous conduct crime. The court reasoned: “Though they are ‘alternative’ offenses in that they may not result in double punishment, they are not ‘alternative’ in the sense that commission of the one necessarily constitutes an acquittal of the other. [Citation.]” (23 Cal.App.4th at p. 49.) The court identified several practical considerations guiding its conclusion that a defendant can be convicted of acts violating section 288.5 and other- sex offenses occurring in the same time frame. The court explained: “Inasmuch as the prosecution cannot know in advance which offenses will (1) prevail with the trier of fact, including the trial court sitting as a 13th juror, (2) be subsequently sustained on appeal, and (3) never be retroactively declared invalid [citation], the sentences imposed on the lesser of the `alternative’ crimes should merely be stayed. . . .” (Ibid.) The court further observed that the staying of the subsidiary sex offenses “precludes appellant suffering any additional penal consequences therefrom in the future. [Citation.]” (Ibid.) Thus, in the instant case, appellant was properly charged and convicted of violating both sections 288.5 and 289, subdivision (j).
While we find no need to vacate appellant’s conviction on count three, the violation of of section 289, subdivision (j), we do find error with respect to the sentence that he received on that count. As we have noted, the Valdez decision interpreted subdivision (c) of section 288.5 to permit a defendant to be charged and convicted of continuous sexual abuse and specific offenses underlying the continuous conduct crime occurring within the same time frame. Nevertheless, the court made it abundantly clear that the sentence imposed on the underlying crimes must be stayed under section 654. [Footnote 3] (Valdez, supra, 23 Cal.App.4th at p.49.) We agree with this analysis and conclusion.
We therefore conclude the trial court erred by imposing a consecutive midterm of 6 years for violation of section 289, subdivision (j) (penetration by a foreign object). The usual remedy for failing to apply section 654 is to stay execution of the sentence-imposed for the lesser offense, the stay to become permanent upon completion of the sentence for the greater offense. (People v. Deloza (1998) 18 Cal.4th 585, 591-592; People v. Thompson (1994) 24 Cal.App.4th 299, 308.) However, in People v. Burns (1984) 158 Cal.App.3d 11 78 this division recognized that remand for resentencing may be an appropriate method of rectifying section 654 error on appeal in cases such as this one “where appellate correction of the section 654 error would result in a near halving of the original sentence without any necessary warrant to do so in the facts of the case, . . ” (Id. at p. 11 84.) In such a case “justice requires remand so that the trial judge may impose a sentence commensurate with culpability.” (Ibid.)
Therefore, we remand for resentencing. In doing so, the trial court can reconsider the entire sentencing scheme in restructuring appellant’s sentence, subject to the restriction that the aggregate term cannot exceed the original 20-year sentence. (People v. Burns, supra, 15 8 Cal.App. 3 d at p. 1184.) The new sentence imposed must expressly give credit for the time appellant has served on the original sentence. (§ 2900.1.)
The case is remanded for resentencing consistent with the views expressed herein. In all other respects, the judgement is affirmed.
Footnote 1: All undesignated statutory references are to the Penal Code.
Footnote 2: In a footnote in appellant’s reply brief and for the first time, appellant raises the point that in light of our Supreme Court’s recent decision People v. Benson (1998) 18 Cal.4th 24, it can no longer be said that a defendant does not suffer collateral consequences when a felony sex offense against the same victim during the same time frame is stayed. In Benson, the court found that the electorate and the Legislature intended that each prior conviction qualifying as a serious or violent felony constitutes a strike within the meaning of the “three Strikes” law, notwithstanding that the trial court in an earlier proceeding may have stayed the sentence for the offense under section 654. (Id. at p. 34.) “[P]oints raised for the first time in an appellant’s reply brief generally are not considered on appeal. [Citation.]” (People v. Pitts (1990) 223 Cal-App.3d 606, 859; People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2.) Even if appellant’s argument had been timely made, it is not implicated by the facts of this case. Appellant’s conviction under section 289, subdivision (j) does not qualify as a strike under either section 667.5, subdivision (c)(11) or section 1192.7, subdivision (c)(25) because violent and serious crimes are only acts falling within subdivision (a) of section 289, and only those accomplished by force, violence, etc. (See § 1170.12, subd. (b)(1); § 667, subdivision (d)(1).) We fully appreciate that a contrary view is expressed in People v. Montes (1998) 67 Cal.App.4th 1372, 1380, petition for review filed January 4, 1999, but our review of the statutory language leads us to the opposite conclusion.
Footnote 3: Section 654 states in pertinent part: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision…..”