Filed 1/14/19
          CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SIX


THE PEOPLE,                                2d Crim. No. B283564
                                         (Super. Ct. No. LA078878)
     Plaintiff and Respondent,             (Los Angeles County)

v.

MANUEL BUSANE,

     Defendant and Appellant.


            Manuel Busane appeals from the judgment after a
jury convicted him of two counts of forcible lewd acts on a child
(Pen. Code, 1 § 288, subd. (b)(1)) and two counts of nonforcible
lewd acts on a child (§ 288, subd. (a)), and found true allegations
that he committed his crimes against multiple victims (§ 667.61,
subds. (b), (c)(4) & (8), (e)(4)). The trial court found true
allegations that Busane suffered two prior strike convictions

        * Pursuantto rules 8.1105(b) and 8.1110 of the California
Rules of Court, this opinion is certified for publication with the
exception of the Factual and Procedural History and parts 1, 2, 3,
and 4 of the Discussion.

        1 All   further statutory references are to the Penal Code.
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior
serious felony convictions (§ 667, subd. (a)), and that he served
five prior prison terms (§ 667.5, subd. (b)). It sentenced him to
116 years to life in prison. The court awarded Busane 1,040 days
of actual custody credits and no presentence conduct credits.
              Busane contends: (1) insufficient evidence supports
his forcible lewd acts on a child convictions, (2) the trial court
should have instructed the jury on the lesser included offenses of
forcible lewd acts, (3) the court should have instructed the jury on
the prohibition of dual convictions for alternative charges, (4) we
should remand the case to permit the court to exercise its
discretion to impose or strike the serious felony enhancements,
and (5) he is entitled to presentence conduct credits. In the
unpublished portion of our opinion, we affirm Busane’s
convictions for forcible lewd acts, reverse his convictions for
nonforcible lewd acts, and vacate his sentence. In the published
portion, we direct the trial court to determine Busane’s
entitlement to presentence conduct credits.
            FACTUAL AND PROCEDURAL HISTORY
              Sisters S.S. and J.G. lived with their family in Los
Angeles. R.D. rented a room in their home. Busane was R.D.’s
friend, and often visited the house.
              In July 2014, S.S. and J.G., each five years old, were
sitting on the couch and watching television with their older
brother, R.S., and older sister, E.S. Busane and R.D. walked
through the living room. R.S. thought Busane looked at S.S. “in a
mischievous way.” He told her and J.G. to go play in their
mother’s bedroom.
              Busane walked to the bedroom and told J.G. and S.S.
to come out. S.S. complied but J.G. did not. Busane grabbed




                                 2
J.G.’s hand and dragged her out of the room. He told her to open
her mouth, and put his tongue inside when she did. He did the
same to S.S.
             A few minutes later, R.S. saw Busane with his sisters
near the kitchen. Busane was kneeling down and holding J.G.
and S.S. with his left hand; with his right hand, he was touching
the girls’ vaginal areas over their clothing. R.S. yelled, “What are
you doing?!”
             Busane ran outside. R.D. exited his bedroom and
followed him. When R.S. described what he saw, R.D. called him
a liar and said he had concocted the incident.
             S.S. told R.S. that Busane touched her and pointed to
her vaginal area. R.S. called his mother and told her what
happened. She called the police. Before police arrived, S.S. and
J.G. told R.S., E.S., and their parents that Busane touched their
“private parts.” S.S. also said he put his finger in her mouth.
She was crying.
             Officer Oscar Bocanegra responded to the house. S.S.
told Bocanegra that Busane touched her with his fingers. She
pointed to her vaginal area and the area between the legs of a
teddy bear to indicate where.
             R.S. told Bocanegra that he saw Busane bent over
S.S. His left hand was on her back and his right was on her
groin. J.G. was standing next to S.S.
             Two weeks later, Detective Katherine Gosser
interviewed S.S. and J.G. S.S. told Gosser that she and J.G. were
in their parents’ room when Busane told them to come out. The
girls were reluctant to comply. S.S. said Busane grabbed J.G.,
put his tongue in her mouth, and fondled her. She said Busane
then grabbed her, put his tongue in her mouth, and touched her




                                 3
vagina over her clothes. R.S. saw what Busane was doing and
yelled at him. R.S. and Busane then got into an argument.
             A nurse also interviewed J.G. and S.S. S.S. told the
nurse how Busane kissed her, put his tongue in her mouth, and
touched her “peepee” over her clothes. J.G described how Busane
put his tongue in her mouth and how he kissed her sister.
             The prosecution charged Busane with two counts of
forcible lewd acts on a child and two counts of nonforcible lewd
acts. All four crimes were alleged to have occurred at the same
time. The prosecutor explained to the trial court that the latter
two charges were charged as lesser included offenses of the
former.
             During closing arguments, the prosecutor told the
jury that the forcible lewd acts on a child charges were based on
the same conduct as the nonforcible lewd acts charges. The trial
court instructed the jury on the elements of both crimes.
(CALCRIM Nos. 1110, 1111.) It also instructed the jury that
“[e]ach of the counts charged in [the] case is a separate crime[.]
You must consider each count separately and return a separate
verdict for each one.” (CALCRIM No. 3515.)
             As the jury began deliberations, the trial court asked
the prosecutor to explain the charges again. The prosecutor
responded that the forcible and nonforcible lewd acts were
charged in the alternative. The court said that its instructions
were not accurate for alternative charges. The next morning, it
gave the jury a unanimity instruction. (CALCRIM No. 3500.) It
did not instruct the jury on the prohibition against dual
convictions for alternative charges (CALCRIM No. 3516) or when
lesser included offenses are charged separately from greater
offenses (CALCRIM No. 3519).




                                 4
             At sentencing, the trial court denied Busane’s motion
to strike his two prior strike convictions. (See People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 (Romero).) The court found
it “unbelievable that [Busane] was [previously] sentenced to life
in prison under the [t]hree [s]trikes [l]aw and got basically a
second chance at life outside of prison. . . . [H]e was able to get
another chance, and he just couldn’t do it.” It imposed
consecutive sentences of 58 years to life in prison on Busane’s
forcible lewd acts on a child convictions, as outlined in the
prosecution’s sentencing memorandum: 15 years to life on each
conviction, tripled to 45 years because of the prior strikes, an
additional 10 years for the prior serious felonies, and an
additional three years for three of Busane’s five prior prison
terms. Pursuant to section 654, it imposed and stayed terms of
25 years to life on each of the nonforcible lewd acts convictions.
                              DISCUSSION
                     1. Sufficiency of the evidence
             Busane contends his forcible lewd acts on a child
convictions should be reversed because of a lack of evidence that
he used physical force to accomplish the acts. We disagree.
             A conviction for forcible lewd acts on a child requires
proof that the defendant used “force, violence, duress, menace, or
fear of immediate and unlawful bodily injury” against the victim.
(§ 288, subd. (b)(1).) “Force” in this context means force
“‘substantially different from or substantially greater than that
necessary to accomplish the lewd act itself.’ [Citation.]” (People
v. Soto (2011) 51 Cal.4th 229, 242 (Soto).) “Duress” means “a
direct or implied threat of force, violence, danger, hardship or
retribution sufficient to coerce a reasonable person of ordinary
susceptibilities to . . . perform an act which otherwise would not




                                 5
have been performed or . . . acquiesce in an act to which one
otherwise would not have submitted.” (People v. Pitmon (1985)
170 Cal.App.3d 38, 50 (Pitmon), disapproved on another ground
by Soto, at p. 248, fn. 12.)
              We review the jury’s verdicts for substantial
evidence. (People v. Kipp (2001) 26 Cal.4th 1100, 1128.)
Specifically, we “review[] the entire record in the light most
favorable to the prosecution to determine whether it contains
evidence that is reasonable, credible, and of solid value, from
which [the jury] could find . . . beyond a reasonable doubt” that
Busane used force or duress against J.G. and S.S. (Ibid.) We will
uphold Busane’s convictions if there is substantial evidence of
either. (Pitmon, supra, 170 Cal.App.3d at p. 48.)
              There was sufficient evidence that Busane used force
against J.G. and S.S. to accomplish his lewd acts. “[A]cts of
grabbing, holding[,] and restraining that occur in conjunction
with . . . lewd acts” can represent the force necessary to sustain a
forcible lewd acts conviction. (People v. Alvarez (2009) 178
Cal.App.4th 999, 1005 (Alvarez).) Here, Busane grabbed J.G.’s
hand and put his tongue in her mouth. He then grabbed S.S. and
did the same. He held his arm against their backs while he
fondled them, preventing their escape. Busane’s acts of grabbing
and restraining J.G. and S.S. constitute force substantially
greater than necessary to accomplish lewd acts. (People v. Garcia
(2016) 247 Cal.App.4th 1013, 1024 [restraining victim]; Alvarez,
at p. 1005 [pulling on and restraining victims]; People v. Babcock
(1993) 14 Cal.App.4th 383, 388 (Babcock) [grabbing victims and
preventing their escape]; People v. Mendibles (1988) 199
Cal.App.3d 1277, 1307, disapproved on another ground by Soto,
supra, 51 Cal.4th at p. 248, fn. 12 [pulling victim].)




                                 6
             Busane’s reliance on People v. Senior (1992) 3
Cal.App.4th 765 and People v. Schulz (1992) 2 Cal.App.4th 999 is
unpersuasive. In both of those cases, the discussions of the force
required to sustain the convictions were dicta because both courts
held there was sufficient evidence of duress to sustain the
defendants’ forcible lewd acts convictions. (Senior, at pp. 775-
776; Schulz, at p. 1005.) We join the courts that have rejected
that dicta regarding the amount of force required. (See, e.g.,
Alvarez, supra, 178 Cal.App.4th at p. 1004; People v. Bolander
(1994) 23 Cal.App.4th 155, 160-161, disapproved on another
ground in Soto, supra, 51 Cal.4th at p. 248, fn. 12; People v. Neel
(1993) 19 Cal.App.4th 1784, 1789-1790, disapproved on another
ground in Soto, at p. 248, fn. 12; Babcock, supra, 14 Cal.App.4th
at p. 388.) Under the circumstances present here, the amount of
force used was sufficient to sustain the convictions.
             The circumstances also show that J.G. and S.S. were
under duress when Busane committed his lewd acts. J.G. and
S.S. were both five years old at the time of Busane’s assault.
Busane was over 50. Busane approached the girls in their
mother’s bedroom, outside the presence of other adults. The girls
were scared and reluctant to comply with his orders to exit the
bedroom, and did not do so until he used force against them. He
then fondled them in the kitchen—again, outside the presence of
other adults. Busane’s size, age, and use of force, plus the
isolated areas in which he committed his crimes, show that J.G.
and S.S. submitted to acts to which they otherwise would not
have submitted. (People v. Cochran (2002) 103 Cal.App.4th 8, 14,
disapproved on another ground by Soto, supra, 51 Cal.4th at p.
248, fn. 12 [defendant’s physical domination and control of victim
can give rise to duress]; People v. Espinoza (2002) 95 Cal.App.4th




                                7
1287, 1320 [relative ages and sizes of defendant and victim can
give rise to duress]; People v. Superior Court (Kneip) (1990) 219
Cal.App.3d 235, 238 [assaulting victim in an isolated area can
give rise to duress].)
               2. Lesser included offense instructions
             Busane next contends the trial court prejudicially
erred because it did not instruct the jury on nonforcible lewd acts
on a child as a lesser included offense of forcible lewd acts.
(People v. Shockley (2013) 58 Cal.4th 400, 403 [trial court has sua
sponte duty to instruct on lesser included offense if there is
substantial evidence the defendant is guilty of only that offense];
Babcock, supra, 14 Cal.App.4th at p. 392 [forcible lewd acts
charge necessarily includes nonforcible lewd acts charge].) But
the prosecution here elected to charge Busane with both forcible
and nonforcible lewd acts as alternative charges. The court
instructed the jury on the elements of each. It was not required
to do so twice. (People v. Lewis (2001) 25 Cal.4th 610, 653.)
           3. Lack of instructions on alternative charges
             Busane contends the judgment should be reversed
because the trial court did not instruct the jury on the prohibition
against dual convictions for alternative charges or on the
prohibition against dual convictions when lesser included
offenses are charged separately from greater offenses. 2 (See

      2 The  Attorney General claims Busane forfeited his
contention because he did not request the instructions at trial.
But defendants may assert instructional error for the first time
on appeal if the error affected their substantial rights. (People v.
Gamache (2010) 48 Cal.4th 347, 375, fn. 13; see §§ 1259, 1469.)
Thus, to the extent any instructional error contributed to
Busane’s conviction and sentence, we may review it. (Gamache,
at p. 375, fn. 13.)


                                 8
CALCRIM Nos. 3516, 3519.) We agree that the court erred, and
reverse Busane’s nonforcible lewd acts convictions.
             A defendant cannot be convicted of both a greater
offense and a lesser included offense based on the same act.
(People v. Sanchez (2001) 24 Cal.4th 983, 987.) If the prosecution
charges the defendant with both offenses, the trial court has a
sua sponte duty to instruct the jury that dual convictions are
prohibited. (People v. Fields (1996) 13 Cal.4th 289, 309-310.)
Whether the court was required to so instruct the jury here
presents a mixed question of law and fact for our independent
review. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
             The prosecutor made clear that the forcible lewd acts
charges were based on the same conduct alleged in the
nonforcible lewd act charges, and that the latter charges were
charged as lesser included offenses of the former. But the trial
court instructed the jury that each charge was for a separate
crime and required a separate verdict. It should have instead
instructed the jury that it could not convict Busane of the
nonforcible lewd act charges unless it found him not guilty of the
forcible lewd act charges. (People v. Arevalo-Iraheta (2011) 193
Cal.App.4th 1574, 1585.) The court’s error requires reversal of
Busane’s nonforcible lewd acts convictions. (People v. Moran
(1970) 1 Cal.3d 755, 763 [reversal of lesser offense required
where substantial evidence supports conviction of greater
offense].) In light of our reversal, the instructional error was
harmless. (People v. Black (1990) 222 Cal.App.3d 523, 525; see
People v. Tideman (1962) 57 Cal.2d 574, 581-582 [reversal of
lesser conviction does not “affect the integrity of the conviction
and sentence for the greater”].)




                                9
                4. Prior serious felony enhancements
             When the trial court sentenced Busane, section 667,
subdivision (a), required it to impose a five-year sentence
enhancement for each of his prior serious felony convictions.
Section 1385, then-subdivision (b), prohibited the court from
striking those enhancements. Effective January 1, 2019, the
court has discretion to strike the enhancements for sentencing
purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971
(Garcia); see § 1385, subd. (b)(1).)
             Busane contends, and the Attorney General concedes,
the amendments to sections 667 and 1385 apply retroactively to
his case because it is not yet final. We agree. (Garcia, supra, 28
Cal.App.5th at p. 973; see In re Estrada (1965) 63 Cal.2d 740,
744.) The parties disagree on the property remedy, however:
Busane claims remand is required to permit the trial court to
exercise its discretion to impose or strike the section 667
enhancements. The Attorney General claims remand is
unwarranted because the court “clearly indicated” that it would
not have struck the enhancements.
             A trial court must exercise “informed discretion”
when sentencing a defendant. (People v. Gutierrez (2014) 58
Cal.4th 1354, 1391 (Gutierrez).) If the court proceeds on the
assumption that it lacks discretion, remand for resentencing is
required unless the record “clearly indicates” that the court
would have reached the same conclusion had it been aware of its
discretionary powers. (Ibid.)
             Here, the record does not clearly indicate that the
trial court would have imposed the two serious felony
enhancements had it had the discretion to strike them. At
sentencing, the court denied Busane’s Romero motion, and found




                               10
it “unbelievable” that he would squander his chance to remain
outside of prison after his previous life sentence was vacated.
And it imposed the maximum sentence possible. But the court
did not express its intent to do so. (People v. Billingsley (2018) 22
Cal.App.5th 1076, 1081.) Nor did it state that it would have
imposed the enhancements if it had the discretion to strike them.
(People v. Chavez (2018) 22 Cal.App.5th 663, 713.) Instead, the
court simply followed the calculation of Busane’s sentence, as
outlined in the prosecution’s sentencing memorandum.
              Remand is accordingly required. (Gutierrez, supra,
58 Cal.4th at p. 1391.) On remand, the trial court must hold a
resentencing hearing to determine whether to impose or strike
the two five-year serious felony enhancements attached to each of
his forcible lewd acts on a child convictions.
                    5. Presentence conduct credits
              At the conclusion of sentencing, Busane requested
credits for the 1,040 days he spent in presentence custody. The
trial court granted his request for custody credits, but refused to
grant conduct credits. The court said he was not entitled to
conduct credits pursuant to sections 667.61 and 2933.5.
              Busane contends the trial court erred when it
determined that he was ineligible for presentence conduct credits.
(People v. Acosta (1996) 48 Cal.App.4th 411, 420 [party may
challenge presentence credit calculation for the first time on
appeal if there are other issues raised].) We agree.
              Defendants sentenced to prison are entitled to credits
against their terms of imprisonment for all actual days spent in
custody prior to sentencing. (§ 2900.5, subd. (a).) And absent
statutory authority to the contrary, defendants are also entitled
to presentence conduct credits if they perform assigned labor and




                                 11
comply with jailhouse rules and regulations. (§ 4019, subds.
(a)(4), (b) & (c); see People v. Thomas (1999) 21 Cal.4th 1122,
1125 (Thomas).) This includes defendants who, like Busane,
receive indeterminate life sentences. (See, e.g., People v. Brewer
(2011) 192 Cal.App.4th 457, 461-464 (Brewer); People v. Philpot
(2004) 122 Cal.App.4th 893, 907-909.) Presentence conduct
credits are limited to 15 percent of the time spent in custody for
defendants convicted of violent felonies. (§ 2933.1, subd. (c).)
              Whether statutory authority limits Busane’s
entitlement to presentence conduct credits presents an issue of
statutory interpretation for our independent review. (Brewer,
supra, 192 Cal.App.4th at p. 461.) Our primary purpose is to
effectuate the Legislature’s intent. (People v. Licas (2007) 41
Cal.4th 362, 367.) We first look to the words of the statute.
(Ibid.) If the statutory language is clear and unambiguous, its
plain meaning governs. (Ibid.) In the absence of ambiguity, we
presume the Legislature “meant what it said, and [do] not resort
to legislative history to determine the statute’s true meaning.”
(People v. Cochran (2002) 28 Cal.4th 396, 401 (Cochran).)
              The trial court here relied on two statutes—sections
667.61 and 2933.5—when it denied Busane presentence conduct
credits. Neither was a proper basis for denial.
              If a statute does not refer to an issue, its meaning is
clear: The statute does not pertain to that issue. (Thomas,
supra, 21 Cal.4th at p. 1125.) “[A] court is not authorized to
insert qualifying provisions not included [in the statute,] and
may not rewrite [it] to conform to an assumed intention [that]
does not appear from its language.” (People v. One 1940 Ford V-8
Coupe (1950) 36 Cal.2d 471, 475.) “The court is [instead] limited
to the intention expressed.” (Ibid.)




                                 12
             Section 667.61 does not refer to presentence conduct
credits. It thus does not render Busane ineligible for presentence
conduct credits. (Thomas, supra, 21 Cal.4th at p. 1125 [where
provision of three strikes law does not mention presentence
conduct credits, its meaning is clear and does not affect the credit
calculation].)
             The plain language of section 667.61 also undermines
the Attorney General’s argument that the legislative history
evidences the Legislature’s intent that the statute bars
presentence custody credits for defendants subject to its
provisions. Where, as here, the Legislature’s expressed intent is
clear from the language of the statute, we do not consider its
legislative history. (Cochran, supra, 28 Cal.4th at p. 401;
Thomas, supra, 21 Cal.4th at p. 1125.) We disagree with our
colleagues in the First District who have done so to reach a
contrary conclusion. (See People v. Cervantes (2017) 9
Cal.App.5th 569, 618-619, review granted May 17, 2017,
S241323, review dismissed, cause remanded Feb. 28, 2018,
disapproved of on another ground by People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, 314-315.)
             The trial court also erred when it relied on section
2933.5 to deny Busane presentence conduct credits. That section
provides that defendants convicted of certain violent felonies,
including forcible lewd acts on a child, are ineligible for
presentence conduct credits if they have two or more prior
convictions and have served two or more prior prison terms for
violations of listed felonies. But it is the Department of
Corrections and Rehabilitation, not the trial court, that makes
the initial determination of whether a defendant is ineligible for
conduct credits pursuant to section 2933.5. (People v. Goodloe




                                13
(1995) 37 Cal.App.4th 485, 492-494.) The court’s invocation of
that section at sentencing was premature. (Id. at pp. 494-495.)
Perhaps more importantly, we note that, though the jury
convicted Busane of a listed felony (see § 2933.5, subd. (a)(2)(J)),
none of the prior conviction allegations the trial court found true
was for a listed felony. Thus, even if it were appropriate for the
court to determine Busane’s ineligibility for presentence conduct
credits in the first instance, its determination was incorrect.
             We accordingly hold that the only limitations on
Busane’s accrual of presentence conduct credits were those set
forth in sections 2933.1 and 4019. Here, Busane was convicted of
two violent felonies. (See § 667.5, subd. (c)(6).) He spent 1,040
days in presentence custody. He is therefore entitled to up to 156
days of conduct credits if he performed his assigned labor and
complied with jail rules.
             But the trial court made no findings regarding
whether Busane performed labor or complied with the rules. It is
inappropriate for this court to do so in the first instance. Instead,
we remand with directions to the trial court to determine
whether Busane performed his assigned labor and complied with
jail rules and regulations and, if so, to calculate and award him
the appropriate conduct credits. (People v. Taylor (2004) 119
Cal.App.4th 628, 647 [incorrect calculation of custody credits is
an unauthorized sentence that may be corrected at any time].)
                           DISPOSITION
             Busane’s convictions for nonforcible lewd acts on a
child are reversed. The case is remanded to the trial court with
directions to hold a hearing to: (1) exercise its newfound
discretion to impose or strike the prior serious felony
enhancements, (2) determine whether Busane is entitled to




                                 14
presentence conduct credits, and, if so, (3) calculate and award
those credits. Busane has the right to assistance of counsel at
the remand hearing, and, unless he chooses to waive that right,
the right to be present. After the hearing, the clerk of the court
shall prepare an amended abstract of judgment and forward a
certified copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
             CERTIFIED FOR PARTIAL PUBLICATION.




                                     TANGEMAN, J.
We concur:



             GILBERT, P. J.



             YEGAN, J.




                                15
                    Michael V. Jesic, Judge

             Superior Court County of Los Angeles

                ______________________________


            Daniel G. Koryn, under appointment by the Court of
Appeal, for Defendant and Appellant.


            Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, David E. Madeo, Daniel C. Chang
and Michel Keller, Deputy Attorneys General, for Plaintiff and
Respondent.
