NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KANE, Acting P.J.
Following a trial by jury, defendant Jesus Hernandez Rivera was convicted of six counts arising from the years long sexual abuse of his two minor daughters, "Jane Doe #1" (O.H.) and "Jane Doe #2" (J.H.).
The trial court sentenced defendant to an indeterminate term of 15 years to life on count 1 (§ 288.7, subd. (b) (victim Jane Doe #1)), plus consecutive indeterminate terms of 25 years to life on count 2 (§§ 288.5, subd. (a), 667.61, subd. (e)(4) (victim Jane Doe #1)), 25 years to life on count 3 (§§ 288.5, subd. (a), 667.61, subd. (e)(4) (victim Jane Doe #2)) and 15 years to life on count 4 (§§ 288, subd. (a), 667.61, subd. (e)(4) (victim Jane Doe #2)). The court also sentenced defendant to the upper determinate term of three years on count 5 (§ 288, subd. (c)(1) (victim Jane Doe #1)) and a consecutive determinate term of eight months (one-third of the middle term) on count 6 (§ 288, subd. (c)(1) (victim Jane Doe #2)).
On appeal, defendant seeks reversal of count 1 (sexual intercourse or sodomy with Jane Doe #1) and count 4 (lewd or lascivious acts against Jane Doe #2). Defendant argues that pursuant to section 288.5, subdivision (c), he may not be convicted of both a continuous course of sexual abuse and a discrete act of sexual abuse against the same victim.
The People maintain that defendant forfeited this issue on appeal because he failed to demur to the information in the trial court. Alternatively, they contend that because the periods of abuse underlying his convictions on counts 1 and 2 do not overlap, the convictions do not violate section 288.5, subdivision (c). As to counts 3 and 4, the People concede there is an overlap between the periods of abuse charged, but they contend there is no error because the evidence established that defendant engaged in the continuous abuse of Jane Doe #2 outside the time period he was alleged to have committed a lewd and lascivious act against her.
We conclude that defendant's failure to demur in the trial court did not forfeit his claim on appeal of improper dual convictions. Resolution of defendant's claim on the merits is controlled by section 288.5, subdivision (c), and People v. Johnson (2002) 28 Cal.4th 240 (Johnson). While we reject defendant's claim that his dual convictions on counts 1 and 2 against Jane Doe #1 were obtained in violation of section 288.5, subdivision (c), we conclude that his dual convictions on counts 3 and 4 against Jane Doe #2 violated the statute. Accordingly, we reverse count 4 but otherwise affirm the judgment.
I. Section 288.5
Defendant was convicted of one count of continuous sexual abuse against each of his two victims, in violation of section 288.5, subdivision (a). Section 288.5 provides:
In Johnson, the California Supreme Court addressed section 288.5 in circumstances analogous to those here: the defendant was charged with the continuous sexual abuse of a child under section 288.5 and with discrete acts of sexual abuse under other statutes. (Johnson, supra, 28 Cal.4th at p. 243.) The prosecutor did not charge the offenses in the alternative and the time periods charged overlapped. (Ibid.)
As the high court explained, section 288.5 was enacted in 1989 to solve "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." (Johnson, supra, 28 Cal.4th at p. 242.) Prior to the statute's enactment, Courts of Appeal were reversing "convictions obtained through the use of such `generic' testimony...." (Ibid., fn. omitted.) Following its enactment, "the trier of fact need unanimously agree only that the requisite number of specific sexual acts occurred, not which acts constituted the requisite number." (Id. at p. 243.)
The Court of Appeal in Johnson had reversed the defendant's convictions on five of the six counts on the ground "that the plain language of section 288.5, subdivision (c) precluded convictions on both the continuous sexual abuse charge and the individual sexual offenses." (Johnson, supra, 28 Cal.4th at p. 244.) In doing so, the court disagreed with People v. Valdez (1994) 23 Cal.App.4th 46 (Valdez), an earlier decision in which the Court of Appeal "held that the charge-in-the-alternative language of section 288.5, subdivision (c) precluded multiple punishment, but not multiple convictions...." (Johnson, supra, at p. 244, citing Valdez, supra, at p. 48.)
On review, the California Supreme Court disapproved the holding in Valdez. (Johnson, supra, 28 Cal.4th at p. 244.) It found the statutory language clear and unambiguous, and explained that "[p]rosecutors in sexual abuse cases possess a variety of means to seek convictions and severe punishments in cases involving sexual offenses against vulnerable young victims. They may, for example, plead and prove discrete sexual offenses and seek consecutive sentencing when permitted; they may bring a charge of continuous sexual abuse, with its relatively severe range of punishments (§ 288.5, subd. (a)); they may charge continuous sexual abuse and discrete sexual offenses outside the period of the alleged continuous abuse [citation]; in appropriate circumstances, they may plead and prove the allegations required by section 667.61, the `One Strike' law; or they may charge discrete sexual offenses and continuous sexual abuse in the alternative. Because, however, section 288.5, subdivision (c) clearly mandates the charging of continuous sexual abuse and specific sexual offenses, pertaining to the same victim over the same period of time, only in the alternative, they may not obtain multiple convictions in the latter circumstance." (Id. at p. 248.)
Defendant, citing to People v. Smith (2001) 24 Cal.4th 849, 852, argues his failure to object in the trial court does not forfeit his claim on appeal because the convictions were unauthorized and the resolution of the issue involves pure questions of law. The People do not directly address those arguments, but rely on the Court of Appeal's decision in People v. Alvarez (2002) 100 Cal.App.4th 1170 (Alvarez) for the proposition that by failing to demur in the trial court, defendant forfeited this issue on appeal (id. at pp. 1176-1177).
The court in Alvarez, however, did not hold that a defendant's failure to demur at trial forfeits any challenge on appeal to convictions obtained in violation of section 288.5, subdivision (c). (Alvarez, supra, 100 Cal.App.4th at pp. 1176-1177.) Rather, the defendant in Alvarez waived trial by jury and was convicted by the court. (Id. at pp. 1173-1174.) After trial but before the court rendered its decision, the court told the parties that if it found the defendant guilty of the continuous sexual abuse offense pursuant to section 288.5, it could not find him guilty of certain other discrete sexual abuse offenses. (Id. at p. 1174.) The prosecutor then moved to dismiss the continuous abuse charge and, over the defendant's objection, the court granted the motion, dismissed the continue abuse charge and found the defendant guilty of various discrete sexual abuse offenses. (Ibid.)
On appeal, the defendant challenged the trial court's ruling and argued the court should have dismissed the discrete lewd conduct counts and convicted him on the continuous sexual abuse count. (Alvarez, supra, 100 Cal.App.4th at p. 1175.) The Court of Appeal addressed the California Supreme Court's then-recent decision in Johnson and stated, "Unlike in Johnson, [the defendant] here was not subjected to multiple convictions since he was not convicted of both continuous sexual abuse and specific sexual offenses. The issue presented, which Johnson was not called upon to resolve, is whether Johnson's prohibition against multiple convictions can be achieved by dismissing the continuous sexual abuse count, rather than the specific sexual offenses." (Alvarez, supra, at p. 1176.) The court concluded that by failing to demur to the pleading, the defendant forfeited his claim on appeal "that the prosecution lost its right to proceed on all of the counts and to elect to seek conviction of the specific sexual offenses." (Id. at p. 1177, fn. omitted.) Accordingly, the People's reliance on Alvarez for the proposition that the failure to object in the trial court forfeits a challenge on appeal to multiple convictions is misplaced.
"[N]either forfeiture nor application of the forfeiture rule is automatic." (People v. McCullough (2013) 56 Cal.4th 589, 593.) The parties do not dispute that resolution of this issue on appeal involves questions of law, not fact, and the California Supreme Court has held that section 288.5, subdivision (c), prohibits prosecutors from obtaining multiple convictions for continuous sexual abuse and specific sexual offenses involving the same victim over the same period of time. (Johnson, supra, 28 Cal.4th at p. 248.) Moreover, "[a] sentence is said to be unauthorized if it cannot `lawfully be imposed under any circumstance in the particular case' [citation], and therefore is reviewable `regardless of whether an objection or argument was raised in the trial and/or reviewing court.'" (In re Sheena K. (2007) 40 Cal.4th 875, 887.) The crux of defendant's challenge is that his convictions on counts 1 and 4 are unauthorized as a matter of law under section 288.5. Under these circumstances and in the absence of any contrary argument by the People, other than the one addressed, supra, we conclude defendant did not forfeit this issue on appeal. (People v. Shabtay (2006) 138 Cal.App.4th 1184, 1192.)
III. Challenge to Convictions for Continuous Abuse and Discrete Acts of Abuse
A. Counts 1 and 2 Against Jane Doe #1
As to count 1 against victim Jane Doe #1, the amended information alleged defendant engaged in oral copulation or sexual penetration of a child 10 years of age or younger between May 2, 2004, and June 1, 2008 (§ 288.7, subd. (b)). As to count 2, it alleged continuous sexual abuse of Jane Doe #1 between June 2, 2008, and April 20, 2012 (§ 288.5, subd. (a)). The jury was instructed as to the time periods relevant to each count, which do not overlap.
While defendant's brief is not entirely clear on the point, he appears to be arguing that his crimes against Jane Doe #1 constituted "one continuous course of conduct" and, under People v. Cortes (1999) 71 Cal.App.4th 62, 78 (Cortes), the prosecutor was prohibited from charging more than one count of continuous sexual abuse.
In support of his argument, defendant quotes the following passage from Cortes: "Subdivision (c) also prohibits prosecutors from charging more than one count of continuous sexual abuse against the same victim. Thus, where the abuse lasted one year, a prosecutor may not seek convictions (and the stiffer punishments) for four counts by alleging four 3-month periods of abuse. However, given our analysis, this prohibition does not reasonably suggest that prosecutors must allege the entire period shown by the evidence. Rather, if the prosecutor alleges a shorter period than he or she could have, the prohibition simply requires that any additional allegations be for individual offenses." (Cortes, supra, 71 Cal.App.4th at p. 78.)
We fail to see how this passage supports defendant's position. In arguing "[his] case is like the one contemplated by the passage in Cortes," defendant presumably refers to the portion regarding the prohibition against charging more than one count of continuous sexual abuse. Cortes is of no assistance to defendant, however, because it rejected the defendant's argument "that fundamental fairness militates in favor of requiring prosecutors to allege the entire period of abuse shown by the evidence." (Cortes, supra, 71 Cal.App.4th at p. 78.) The court stated, "We agree that under a common understanding of the phrase continuous sexual abuse, defendant molested the victim more or less continuously through February 17, 1996. The flaw in [the] defendant's argument, however, is that the actual duration of his conduct is not controlling or necessarily relevant in determining the elements of the offense. Indeed, unless the prosecutor chooses to allege the entire period, that period has no independent legal significance under the statute." (Ibid.)
Here, too, defendant molested Jane Doe #1 "more or less continuously" over a period of years. (Cortes, supra, 71 Cal.App.4th at p. 78.) However, the prosecution was not required to allege that entire period of abuse as one count under section 288.5. To the contrary, as in Cortes, the prosecution was permitted by the terms of the statute to allege one count of continuous sexual abuse and a separate count of discrete lewd acts so long as the second offense occurred outside the time period charged under section 288.5. (Cortes, supra, at pp. 78-79.) Because the acts of abuse alleged in count 1 occurred outside the time period of continuous sexual abuse alleged in count 2, we reject defendant's claim of entitlement to reversal on count 1. (§ 288.5, subd. (c); Johnson, supra, 28 Cal.4th at p. 248; Cortes, supra, at pp. 78-79.)
B. Counts 3 and 4 Against Jane Doe #2
With regard to count 3, the amended information alleged continuous sexual abuse of Jane Doe #2 between June 20, 2005, and June 28, 2012 (§ 288.5, subd. (a)). As to count 4, it alleged the commission of lewd or lascivious acts against Jane Doe #2 between June 30, 2005, and June 28, 2013. The jury was instructed as to the time periods relevant to each count, which overlap, as the People concede.
The People argue that because the time periods underlying counts 3 and 4 did not overlap entirely and the evidence established that defendant continuously abused Jane Doe #2 between June 29, 2012, and June 28, 2013, a period of time that was not alleged under count 4, there was no error. We reject this argument as contrary to the plain language of the statute and California Supreme Court authority.
Under the statute, it was proper to charge defendant with both continuous sexual abuse and lewd or lascivious acts only if the lewd or lascivious acts charged under count 4 occurred outside the time period of continuous abuse charged under count 3. The convictions at issue in Johnson suffered from the same deficiency at issue here, and the high court determined that "[t]he information ... failed to comply with section 288.5, subdivision (c)[, and] [t]he multiple convictions ... thus [were] inconsistent with the statute...." (Johnson, supra, 28 Cal.4th at p. 248.) The court affirmed the Court of Appeal's reversal of the five convictions arising from discrete acts that occurred during periods of time that overlapped with the period underlying the continuous sexual abuse count.
Accordingly, as the time periods charged under counts 3 and 4 overlap, defendant may not stand convicted of both. (§ 288.5, subd. (c); Johnson, supra, 28 Cal.4th at p. 248.)
Defendant seeks the reversal of count 4, under which he was sentenced to 15 years to life. Courts have held that where one of two convictions must be vacated for violating section 288.5, subdivision (c), defendant shall be left "standing convicted of the alternative offenses that are most commensurate with his culpability." (People v. Torres (2002) 102 Cal.App.4th 1053, 1059-1060; accord, People v. Bautista (2005) 129 Cal.App.4th 1431, 1437-1438.) In this case, defendant sexually abused Jane Doe #2 for approximately eight years and the abuse commenced when she was five or six years old. Defendant was sentenced to 25 years to life on count 3 under the One Strike law and, therefore, it is that conviction which is "most commensurate with his culpability." (People v. Torres, supra, at p. 1059.)
Defendant's conviction on count 4 for violation of Penal Code section 288, subdivision (a), is reversed. The judgment is otherwise affirmed. The trial court shall prepare an amended abstract of judgment and forward it to the appropriate authorities.
POOCHIGIAN, J. and FRANSON, J., concurs.