Filed 6/29/15 P. v. Sanchez CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049577

                   v.                                                  (Super. Ct. No. 10CF2694)

ROLANDO TORRES SANCHEZ,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, M. Marc
Kelly, Judge. Affirmed in part and reversed in part with directions.
                   Raymond M. DiGuiseppe, 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, Arlene A. Sevidal and
Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.


                                             *               *               *
              A jury found defendant Rolando Torres Sanchez guilty of committing a
lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); all further
statutory references are to this code; count one), continuous sexual abuse of a child under
the age of 14 years (§ 288.5, subd. (a); count two), and sexual penetration with a child 10
years of age or younger (§ 288.7, subd. (b); count three). The trial court sentenced
defendant to prison for 15 years to life on count three, plus a 12-year consecutive term on
count two and a 6-year concurrent term on count one.
              On appeal, defendant argues that since counts two and three were alleged to
have occurred during the same time period, his conviction on the latter charge must be
reversed because it violated section 288.5, subdivision (c). He also claims the trial court
miscalculated his presentence custody credits. The Attorney General concedes the
second point, but argues defendant forfeited his right to attack the conviction on count
three by failing to demur to the information.
              Since defendant does not challenge his conviction on count one, we affirm
as to that charge. We agree the trial court miscalculated defendant’s custody credits and
also concur with his claim that subdivision (c) of section 288.5 prohibited him from being
convicted on both counts two and three. But since that statute allows the prosecution to
charge both crimes in the alternative we disagree with his proposed remedy. We shall
remand the matter to the superior court with directions to vacate the conviction for
violating section 288.5, subdivision (a) (count two) and to resentence defendant.


                    FACTS AND PROCEDURAL BACKGROUND


              Defendant does not dispute the sufficiency of the evidence to support the
jury’s verdicts and findings. Consequently, only a brief summary of the trial testimony is
necessary. The victim was born in 2000. Defendant and the victim’s mother married in



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2007. At the time, the family lived in Corona. On one occasion, defendant placed his
hand under the victim’s clothes and rubbed her vagina for approximately one minute.
              The family moved to Santa Ana. The victim testified that after the move,
defendant placed his hand inside her clothes and rubbed her vagina on five or six
occasions. Once or twice, he also inserted his finger into her vagina. One of the
penetrations occurred after defendant returned from a church retreat. The mother learned
of the molestations after her daughter complained of vaginal pain.
              The amended information charged defendant with committing count one
between January 2006 and the end of December 2007. Counts two and three were each
alleged to have occurred between January 1, 2008 and September 29, 2010.
              While discussing jury instructions, the court commented that the Use Note
for the standard instruction on continuous sexual abuse stated a defendant could not be
convicted of this crime and another sexual offense if both occurred during the same time
period and that, in this circumstance, the jury should be instructed the crimes are
alternative charges. The prosecutor said she was “aware of that issue” and proposed the
jury be told count two was limited to the touching incidents in Santa Ana other than the
penetration that occurred around the time of the church retreat. Defense counsel agreed
with this approach. Thereafter, the court instructed the jury that count two “does not
apply to the . . . alleged incident in Corona” or the “alleged penetration incident at or near
the time of the retreat.”


                                       DISCUSSION


              Generally, “[a]n accusatory pleading may charge two or more different
offenses connected together in their commission, or different statements of the same
offense or two or more different offenses of the same class of crimes or offenses, under
separate counts.” (§ 954.) However, subdivision (c) of section 288.5 provides, “No other

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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 . . . 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.”
               Defendant argues his conviction on count three must be vacated because it
involved substantial sexual conduct “based upon an act that allegedly occurred within the
same time period as the conduct that served as the basis for the charge” of continuous
sexual abuse in count two. We agree that it was error to charge and convict defendant of
both continuous sexual abuse and sexual penetration of a child where each of these
crimes were alleged to have occurred during the same time period.
               In People v. Johnson (2002) 28 Cal.4th 240, the Supreme Court upheld an
appellate decision reversing a defendant’s conviction on several discrete sexual crimes
that allegedly occurred during the same time period as his conviction for continuous
sexual abuse of the same minor. In so ruling, the court rejected the Attorney General’s
reliance on section 954 and disapproved of People v. Valdez (1994) 23 Cal.App.4th 46,
which had held multiple convictions were permissible so long the defendant was not
subjected to multiple punishment. (Id. at pp. 246-247, 248, fn. 6.) “Because . . . 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.)
               All of the crimes charged involved the same victim. The information
alleged the offense charged in count three occurred during the same time period as the
continuous sexual abuse charged in count two. Count three, which involved “penetration
of the vagina . . . of . . . the victim,” involved “‘[s]ubstantial sexual conduct.’”
(§§ 1203.066, subd. (b), 289, subd. (k)(1).) Even after being advised that the standard

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jury instruction on continuous sexual abuse required the jury be told it could convict
defendant of only one of these crimes, the prosecutor succeeded in convincing the court
and opposing counsel to carve out an exception by limiting count three to one alleged
incident that occurred during the time period covered by count two. Johnson and its
progeny preclude this result. (People v. Bautista (2005) 129 Cal.App.4th 1431, 1436
[“because ‘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, [the prosecution] may not obtain multiple
convictions in the latter circumstance[]’”]; People v. Torres (2002) 102
Cal.App.4th 1053, 1057 [Johnson’s interpretation of the statute “precludes multiple
convictions for the alternative offenses of continuous sexual abuse and specific felony sex
offenses against the same victim, alleged to have occurred in the same time period”].)
              Relying on People v. Goldman (2014) 225 Cal.App.4th 950, the Attorney
General argues defendant forfeited this issue by failing to demur to the information
because, on its face, “it contain[ed] matter which, if true, would constitute a . . . legal bar
to the prosecution.” (§ 1004, subd. 5; see § 1012 [except for lack of jurisdiction and
failure to state a public offense, “any . . . objection[] mentioned in Section 1004 . . . can
be taken only by demurrer, and failure so to take it shall be deemed a waiver thereof”].)
For several reasons, we find Goldman unpersuasive.
              First, Goldman is factually distinguishable from the present case. There the
information alleged only a one-month overlap between the time period covered by the
continuous sexual abuse and that of the specific sexual offense. (People v. Goldman,
supra, 225 Cal.App.4th at p. 955.) Here, the time periods alleged in counts two and three
were identical. While the defect in Goldman could have been easily corrected by
amendment, the same is not true in this case.
              Second, Goldman concluded the decision in Johnson did not dictate a
different result because the case “did not . . . broach the question of whether a defendant

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must demur to preserve the issue for appeal,” and thus it “d[id] not stand for a proposition
not considered by that court.” (People v. Goldman, supra, 225 Cal.App.4th at p. 956.)
But Johnson did expressly declare section 288.5, subdivision (c) barred the prosecution
from “obtain[ing] multiple convictions” when a defendant is charged with continuous
sexual abuse and a specific sexual crime concerning the same victim during the same
time period. (People v. Johnson, supra, 28 Cal.4th at p. 248; see People v. Bautista,
supra, 129 Cal.App.4th at p. 1436; People v. Torres, supra, 102 Cal.App.4th at p. 1057.)
              Finally, we do not agree a defendant’s mere failure to demur to the
information precludes him from challenging his conviction on both counts. An analogous
situation was presented in People v. Shabtay (2006) 138 Cal.App.4th 1184. There a
defendant operating an identity theft scheme obtained 11 access cards in the names of
other persons during a twelve-month period. The prosecution charged the defendant with
and convicted him of two counts of violating section 484e, subdivision (b), which makes
it illegal for a “person, other than the issuer” to “acquire[] access cards issued in the
names of four or more persons” “within any consecutive 12-month period.” (Ibid.) The
Court of Appeal reversed the defendant’s conviction on one of the two counts, holding
“only one conviction within any consecutive 12-month period is permissible . . . under
section 484e, subdivision (b).” (People v. Shabtay, supra, 138 Cal.App.4th at p. 1188.)
              In Shabtay, the Attorney General made the same argument asserted here,
“that [the] defendant’s failure to demur to the information pursuant to section 1004
constitutes a waiver of the multiple-conviction issue.” (People v. Shabtay, supra, 138
Cal.App.4th at pp. 1191-1192, fn. omitted.) The Court of Appeal rejected this claim.
“While a demurrer does lie to challenge an improper charging of more than one offense
under section 954, the failure to demur does not justify a multiple conviction that is
improper as a matter of law. A demurrer would have prevented a trial on two counts of
violating section 484e, subdivision (b). Having failed to demur, defendant cannot
complain about any prejudice he may have suffered from facing trial on a count that

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should not have been prosecuted, because the failure to demur waives the issue.
[Citations.] However, the lack of a demurrer does not mean defendant waives any
objection to an unwarranted multiple conviction.” (Id. at p. 1192.)
              The same reasoning and result applies here. Defendant’s failure to demur
to the information’s allegation of continuous sexual abuse and sexual penetration
occurring during the same time period without charging them in the alternative, did not
waive his right to object to his conviction and sentence on both counts.
              Defendant further argues the proper remedy in this case is to vacate his
conviction and sentence on count three. He argues “the prohibition” of multiple
convictions “is intended to apply to the discrete [sexual] offense[] charged along with the
continuous sexual abuse, such that it is [the] discrete offense[] that must fall in the case of
dual convictions.”
              But in People v. Torres, supra, 102 Cal.App.4th 1053, the court reached a
different conclusion. There the defendant was convicted of numerous sex crimes against
a minor, including continuous sexual abuse, all of which occurred during the same time
period. The trial court sentenced the defendant to a lengthy aggregate term on the
individual offenses while staying sentence for continuous sexual abuse.
              Following the Supreme Court’s recent decision in Johnson, the Court of
Appeal vacated the defendant’s continuous sexual abuse conviction and otherwise
affirmed the judgment. Noting section 288.5’s purpose was to “provide ‘additional
protection’” to minors (People v. Torres, supra, 102 Cal.App.4th at p. 1159), but that as
phrased, the statute allowed “prosecutor[s] maximum flexibility to allege and prove not
only a continuous sexual abuse count, but also specific felony offenses commensurate
with the defendant’s culpability, subject only to the limitation that the defendant may not
be convicted of both continuous sexual abuse and specific felony sex offenses committed
in the same period” (ibid.), Torres concluded it was “also appropriate, in deciding which
convictions to vacate as the remedy for a violation of the proscription against multiple

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convictions set forth in section 288.5, subdivision (c), that we leave [an] appellant
standing convicted of the alternative offenses that are most commensurate with his
culpability.” (Ibid.)
              We conclude the approach followed in Torres is appropriate in the present
case. A conviction of section 288.5 subjects a person to “imprisonment in the state
prison for a term of 6, 12, or 16 years.” (§ 288.5, subd. (a).) A conviction for sexual
penetration of a minor in violation of section 288.7, subdivision (b) is punishable “by
imprisonment in the state prison for a term of 15 years to life.” Given the extent of
defendant’s repeated sexual assaults on the minor, we conclude a term carrying a
potential of life in prison is more commensurate with his culpability in this case.


                                      DISPOSITION


              The convictions on counts one and three are affirmed. The conviction on
count two is vacated and the sentence imposed by the superior court is reversed. The
matter is remanded to the superior court to correct the miscalculation in presentence
custody credits and for resentencing consistent with this opinion.




                                                  RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



MOORE, J.

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