Filed 6/23/15 P. v. Waters CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065770

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS256678)

GREGORY L. WATERS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Edward P.

Allard III, Judge. Affirmed.

         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Julie L. Garland, Assistant

Attorneys General, Barry Carlton, Seth M. Friedman, Deputy Attorneys General, for

Plaintiff and Respondent.
       A jury convicted Gregory Waters of six counts of committing lewd acts on a child

under age 14 (Pen. Code,1 § 288, subd. (a); counts 2 through 7), as well as one count of

continuous sexual abuse of a child (§ 288.5, subd. (a); count 9). Waters had earlier

pleaded guilty to another count of committing a lewd act on the victim (count 8),

admitting he had unlawful sexual intercourse with a child under the age of 14 causing the

child to become pregnant. The jury found true as to counts 2 through 8 allegations that

Waters had substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)).2 At

Waters's sentencing hearing, the trial court dismissed the count 9 conviction as well as

other charges on which the jury did not reach a verdict. It sentenced Waters to a total

determinate term of 20 years, consisting of an upper term of eight years on count 2 and

consecutive two-year terms (one-third the midterm) on counts 3 through 8.

       On appeal, Waters contends the trial court should have dismissed the individual

lewd act convictions of counts 2 through 7 rather than dismiss the count 9 continuous

sexual abuse conviction because under People v. Johnson (2002) 28 Cal.4th 240

(Johnson), he could not be legally charged and convicted of continuous sexual abuse and

also convicted of committing specific sex acts on the victim during the same period of




1      Statutory references are to the Penal Code unless otherwise specified.

2      The jury also found true allegations that Waters had committed a specified offense
against more than one victim (§ 667.61, subds. (b), (c), (e)), but the trial court later
dismissed that allegation because the jury's guilty verdicts pertained to only one victim.
The jury deadlocked on the remaining ten counts of the information, nine of which
related to the victim's younger sister. The court declared a mistrial on those counts.
                                             2
time. Waters maintains he did not waive that contention by failing to raise the issue by

demurrer, but if he did, his counsel was prejudicially ineffective because Waters was

deprived of the right to have the jury decide the charges in the alternative. Waters further

contends the trial court prejudicially erred by failing to instruct the jury with a modified

version of CALCRIM No. 3516 on the alternative nature of the section 288 and 288.5

charges, violating his rights to due process and a jury trial. We affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Because Waters does not challenge the sufficiency of the evidence supporting his

convictions, we need not examine it in detail. (Johnson, supra, 28 Cal.4th at p. 243,

fn. 2.) Waters sexually assaulted his girlfriend's daughter, Z.D., beginning in about 1993

when Z.D. was five years old until April 2012 when authorities removed then 13-year-old

Z.D. from her mother's home. Waters at various times raped or sodomized Z.D., orally

copulated her, and forced her to orally copulate him. Z.D. discovered she was pregnant

in February 2012, and she gave birth to a son in November 2012. Waters continued to

rape Z.D. after she was pregnant. Z.D. felt that in order to survive, she had to play a

game and pretend she loved Waters and wanted to marry him, and she lied to detectives

and social workers about the situation.

       The district attorney filed a second amended information charging Waters with the

individual lewd conduct counts as well as a single count of continuous sexual abuse of

the victim, alleging that the acts involved in those counts occurred between November

25, 2009, and May 3, 2012. The individual charges were not alleged in the alternative to



                                              3
the continuous sexual abuse charge, and Waters did not demur to the information or

otherwise object before or during the trial. The jury returned its verdicts following trial,

convicting Waters of the individual section 288 charges of counts 2 through 7 and the

section 288.5 charge of count 9.

       In their sentencing brief, the People, citing People v. Torres (2002) 102

Cal.App.4th 1053, asked the trial court to dismiss Waters's section 288.5 conviction and

sentence him on the individual lewd conduct convictions, which would permit a greater

aggregate sentence of 20 years in state prison. The trial court discussed the matter

extensively with counsel at the sentencing hearing, and ultimately decided to dismiss the

count 9 section 288.5 continuous sexual abuse offense. In part, it explained: "A person

convicted of continuous sexual abuse of a child per . . . section 288, subdivision (a)

cannot be convicted of individual acts of lewd conduct upon a child . . . if such acts

within the present case were the same acts constituting the . . . section 288.5, subdivision

(a) violation. . . . [¶] Because the defendant has been convicted of . . . seven separate

counts of lewd act upon a child . . . he faces a greater maximum penalty with respect to

these charges, which is 20 years than he does on the sole count of continuous sexual

abuse of a child, which is . . . 16 years. Moreover, because of the number and severity of

the specific [lewd conduct] offenses, as well as the greater maximum penalty with respect

to these offenses, the court finds that leaving the defendant to stand convicted of and

punished for said offenses, as opposed to the continuous sexual abuse on a child count is

more commensurate with his culpability. Accordingly, the conviction as to count 9 is



                                              4
vacated and dismissed and defendant will be sentenced on counts 2 though 8."

                                       DISCUSSION

                                     I. Legal Principles

       "[S]ection 288.5 defines the crime of continuous sexual abuse of a child. Any

person who either resides in the same home with a 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 the child or three or more acts of

lewd or lascivious conduct, is guilty of the offense of continuous sexual abuse."

(Johnson, supra, 28 Cal.4th at p. 242, citing in part § 288.5, subd. (a).) "In a prosecution

under [section 288.5], the trier of fact need unanimously agree only that the requisite

number of specified sexual acts occurred, not which acts constituted the requisite

number." (Johnson, at p. 243.)

       Section 288.5, subdivision (c) "imposes certain limits on the prosecution's power

to charge both continuous sexual abuse and specific sexual offenses in the same

proceeding." (Johnson, supra, 28 Cal.4th at p. 243.) Relevant here, " '[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.' "

(Ibid., quoting section 288.5, subd. (c).)

       In Johnson, the court interpreted this limitation to ascertain the Legislature's intent

where a defendant had been convicted of multiple individual sex offenses as well as a

charge of continuous sexual abuse. (Johnson, supra, 28 Cal.4th at pp. 243-244.) The

                                              5
trial court had sentenced the defendant on the section 288.5 count and stayed sentences

on the remaining section 288 and 286 counts, but the appellate court reversed the

convictions on the individual sexual offense charges, rejecting an earlier decision that had

held section 288.5 precluded multiple punishment, not multiple convictions in this

context. (Johnson, at pp. 243-244.) The Johnson court affirmed. It acknowledged

prosecutors were allowed to charge multiple related offenses under section 954, but it

held section 288.5 made an express exception to that general rule, differentiating it from

other statutes: "In explicitly requiring that continuous sexual abuse and specific sexual

offenses be charged in the alternative, section 288.5 essentially carves out an exception to

section 954's general rule permitting joinder of related charges." (Johnson, at p. 246.) It

applied the rule providing " ' " 'where the general statute standing alone would include the

same matter as the special act, and thus conflict with it, the special act will be considered

as an exception to the general statute whether it was passed before or after such general

enactment.' " ' " (Ibid.)3

       Johnson also rejected an argument that the legislative intent and public policy

underlying section 288.5, subdivision (c), supported convictions of both continuous

sexual abuse and specific felony sexual offenses. (Johnson, supra, 28 Cal.4th at p. 247.)




3      At this point in its opinion, the Johnson court observed that its conclusion was not
inconsistent with People v. Hord (1993) 15 Cal.App.4th 711, in which the Court of
Appeal concluded that the Legislature's purpose in passing section 288.5 was not to enact
a specific statute in order to preclude prosecution for other generally applicable sexual
offenses. (Johnson, supra, 28 Cal.4th at p. 246, fn. 5.)
                                              6
Pointing out the aim of the statute was to fortify molestation convictions against

constitutional challenge when they were predicated on generic or unspecific testimony,

the Johnson court stated: "In our view, the Legislature apparently was not seeking to

multiply potential convictions or punishments for such offenders, but rather to subject

them to 'certain' punishment by lowering the unanimity hurdle against which many

molestation prosecutions evidently had stumbled. Our reading of the statute is consistent

with this aim." (Ibid.) The court found section 288.5, subdivision (c)'s language clear

and unambiguous, rendering analysis of legislative history unnecessary. (Johnson, 28

Cal.4th at p. 247.)

       Under the facts presented there, the Johnson court did not reach the question of

whether the trial court should have dismissed the section 288.5 conviction rather than the

individual convictions. It merely pointed out that under the appellate court's reasoning, if

the accusatory pleading improperly alleged nonalternative violations, "then the multiple

convictions predicated thereon cannot stand, and either the continuous abuse conviction

or the convictions on the specific offenses must be vacated." (Johnson, supra, 28 Cal.4th

at p. 245; see also People v. Bautista (2005) 129 Cal.App.4th 1431, 1437.)

       In People v. Alvarez (2002) 100 Cal.App.4th 1170, and People v. Torres, supra,

102 Cal.App.4th 1053, the Courts of Appeal acknowledged that Johnson did not address

that particular question. (Alvarez, at p. 1176; Torres, at p. 1057.) In Alvarez, involving a

court trial, the Court of Appeal held the trial court properly granted a posttrial motion to

dismiss the continuous sexual abuse charge and convicted the defendant on individual



                                              7
lewd conduct counts. (Alvarez, 100 Cal.App.4th at p. 1177.) It pointed out that by

failing to demur to the information, which showed on its face the improperly pleaded

counts, the defendant had waived any challenge to the prosecution proceeding on all the

counts and then making an election before the trial court took that action. (Id. at pp.

1176-1177.) The court stated its conclusion was consistent with the statute's legislative

purpose: "It would be anomalous if section 288.5, adopted to prevent child molesters

from evading conviction, could be used by those molesters to circumvent multiple

convictions with more severe penalties and prior-strike consequences than available for a

conviction under section 288.5." (Alvarez, at pp. 1177-1178.) In Torres, the appellate

court likewise considered the legislative intent behind section 288.5, pointing out that the

statute "gives the prosecutor 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." (Torres, 102 Cal.App.4th at p. 1059.) In view of that purpose, it found

it appropriate to leave the defendant "standing convicted of the alternative offenses that

are most commensurate with his culpability." (Ibid.) Because the defendant faced a

greater maximum aggregate penalty with his specific sex offenses than the section 288.5

offense, and the trial court imposed a greater aggregate sentence with regard to the

specific offenses, the court concluded the appropriate remedy was to reverse the

conviction for violating section 288.5. (Id. at p. 1060.)



                                             8
II. The Trial Court Did Not Err by Dismissing Waters's Section 288.5 Conviction Based

                    on its Assessment of the Greater Aggregate Penalty

       Waters contends that the trial court erred by failing to dismiss the counts 2 through

7 lewd conduct convictions, because under Johnson, supra, 28 Cal.4th 240, those

convictions could not legally be imposed with the count 9 conviction for acts occurring

during the same time frame. Though Waters acknowledges that the appellate court in

People v. Torres, supra, 102 Cal.App.4th 1053 rejected the argument that Johnson

mandated dismissal of the individual counts and found the controlling factor to be the

need to ensure the penal consequences matches the defendant's culpability, he urges this

court to decline to follow Torres. Waters further argues dismissal of the individual

counts is independently compelled by the principle that a special statute should prevail

over a general statute.

       The People maintain Waters has waived these contentions by failing to demur to

the information, which they acknowledge improperly failed to plead the counts in the

alternative.4 They rely on People v. Alvarez, supra, 100 Cal.App.4th 1170, and also

People v. Goldman (2014) 225 Cal.App.4th 950, in which the Court of Appeal held the

defendant forfeited a challenge to convictions for both lewd conduct and continuous

sexual abuse by failing to demur to the information. (Id. at pp. 954, 956-957.) But as the




4       The more appropriate term is forfeiture, which is the failure to make the timely
assertion of a right. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.) Waiver is
the intentional relinquishment or abandonment of a known right. (Ibid.)
                                             9
People themselves acknowledge, the issues raised by Waters are pure questions of law;

and the forfeiture rule is generally not applied when the alleged error involves a pure

question of law that can be resolved on appeal without reference to a record developed

below. (§ 1259;5 People v. Williams (1999) 77 Cal.App.4th 436, 460, citing People v.

Welch (1993) 5 Cal.4th 228, 235.) Furthermore, Alvarez is distinguishable because the

appellant there was not impermissibly convicted of both individual and continuous sexual

abuse charges as Waters was here; the appellate court held only that the defendant by

failing to demur waived any claim of the propriety of the People's proceeding to trial on

all of the offenses and later seeking an election. (Alvarez, at pp. 1176-1177.) As for

Goldman, that court concluded the defendant had forfeited his claim that he was

impermissibly convicted of both an individual sex offense and a continuous sexual abuse

count involving overlapping time periods by failing to demur to the information because

the face of the information contained matter that would constitute a "legal bar to the

prosecution" of the alternate offenses. (Goldman, at pp. 954, 956 ["The charging

prohibition found in section 288.5, subdivision (c) is, in the words of the demurrer

statute, a 'legal bar to the prosecution' "], quoting section 1004, subparagraph (5)].) We

have no quarrel with Goldman to the extent it holds a defendant will forfeit a charging

error by failing to raise it by demurrer. But to the extent Goldman precludes a defendant




5       Section 1259 provides in part that an appellate court on appeal "may, without
exception having been taken in the trial court, review any question of law involved in any
ruling, order, [or] instruction . . . ."
                                            10
from challenging multiple convictions that cannot legally stand under Johnson's rationale

(as well as the sentences imposed, which would be unauthorized), we disagree with that

court's conclusion. In our view, Johnson articulates a substantive right—that a defendant

may not be subject to impermissible multiple convictions—and thus a defendant may

challenge those matters on appeal even when no objection has been made in the trial

court. (Accord, People v. Williams (1999) 21 Cal.4th 335, 339-340, 341 [defendant can

raise bar of statute of limitations at any time even without an objection to the charging

document because statute confers a substantive right]; In re Sheena K. (2007) 40 Cal.4th

875, 881-882, fns. 2, 3.)

       Turning to the merits of Waters's contentions, we reject them. His reading of

Johnson is incorrect. As discussed in section I, ante, the court in that case did not

mandate that the individual counts be vacated, but explained—agreeing with the decision

of the Court of Appeal in that case—that either the section 288.5 or the individual counts

must be vacated. (Johnson, supra, 28 Cal.4th at p. 245.) The Johnson court merely

affirmed the appellate court's action in dismissing the individual counts without

addressing the propriety of that remedy versus dismissal of the section 288.5 conviction.

Nor is there any such mandate in the Johnson court's concluding paragraph, as Waters

suggests. At the cited page, Johnson reiterated its holding that where a prosecutor

alternatively pleads individual sex offenses and continuous sexual abuse, the prosecutor

"may not obtain multiple convictions in the latter [alternative pleading] circumstance."

(Id. at p. 248.)



                                             11
       Rather, we see no fault with the Torres court's conclusion and interpretation of the

statute, and hold that the trial court, applying Torres's reasoning, exercised a proper

remedy for Waters's multiple convictions by comparing the penalty for the section 288.5

offense (6, 12 or 16 years; § 288.5, subd. (a)) and the aggregate maximum penalty for the

other specific felony sex offenses (eight years for each; § 288, subd. (a)), and leaving

Waters "standing convicted of the alternative offenses that are most commensurate with

his culpability." (Torres, supra, 102 Cal.App.4th at pp. 1058-1059.)

       We reject Waters's contention that the principle concerning specific over general

statutes compels dismissal of his individual lewd conduct charges. (See People v.

Coronado (1995) 12 Cal.4th 145, 153-154 [the special over the general statute rule

generally applies where two substantive offenses compete; the rule applies where

" 'each element of the "general" statute corresponds to an element on the face of the

"specific" . . . statute' or 'it appears from the entire context that a violation of the "special"

statute will necessarily or commonly result in a violation of the "general" statute' "].) The

Torres court rejected the same contention (People v. Torres, supra, 102 Cal.App.4th at p.

1058) based on People v. Hord, supra, 15 Cal.App.4th 711, and we agree. In Hord, the

appellate court concluded sections 288.5 and 288 were not subject to the general versus

specific rule: " 'The doctrine that a specific statute precludes any prosecution under a

general statute is a rule designed to ascertain and carry out legislative intent.' [Citation.]

The Legislature's intent in passing section 288.5 was not to enact a specific statute to

apply in lieu of a general statute. The intent was to enact a statute for an area which the



                                               12
Legislature believed was not covered by any other law." (Hord, at p. 720.) As we have

pointed out above (footnote 3, ante), Johnson emphasized that its conclusions were not

inconsistent with Hord's holding concerning the Legislature's intent not to enact a

specific statute so as to preclude prosecution of other generally applicable sexual

offenses. (Johnson, supra, 28 Cal.4th at pp. 246-247, fn. 5; see also Torres, at p. 1058

[acknowledging Johnson's discussion of Hord].) We see the Johnson court's discussion

as implicitly approving Hord, which in our view correctly describes the Legislature's

intent.

                                III. Claim of Instructional Error

          Waters contends the trial court prejudicially erred by failing to sua sponte instruct

the jury on the alternative nature of the section 288 and section 288.5 charges with

CALCRIM No. 3516, and thereby violated his rights to due process and a jury trial. He

maintains the error is reversible per se; that it resulted in a structural defect precluding

harmless error analysis. Because Waters's claim of instructional error involves a

determination of applicable legal principles, we review it de novo. (Accord, People v.

Guiuan (1996) 18 Cal.4th 558, 569.)

          As applicable here, CALCRIM No. 3516 provides: "<Give this paragraph when

the law does not specify which crime must be sustained or dismissed if the defendant is

found guilty of both.> [¶] [The defendant is charged in Count ____ with _________

<insert name of alleged offense> and in Count ____ with _________ <insert name of

alleged offense>. These are alternative charges. If you find the defendant guilty of one



                                                13
of these charges, you must find (him/her) not guilty of the other. You cannot find the

defendant guilty of both.]" (CALCRIM No. 3516 (2014 ed.).) Because the information

in this case did not plead the charges in the alternative, the instruction was not strictly

applicable, and we cannot say under these circumstances the trial court erred by failing to

give it. (See Bench Note to CALCRIM No. 3516, supra, p. 1007 ["The court has a sua

sponte duty to give this instruction where the defendant is charged in the alternative with

multiple counts for a single event"], italics added.)

       Waters relies on Hicks v. Oklahoma (1980) 447 U.S. 343, as the basis for his claim

that the court violated his due process and jury trial rights by failing to instruct the jury

on the alternate nature of the charges. In Hicks, the trial court had instructed the jury it

was required to impose a 40-year sentence, contrary to an Oklahoma statute that gave the

defendant the right to have the jury fix his punishment. (Id. at p. 345.) The U.S.

Supreme Court in Hicks held that absent a correct instruction to the jury, the court

violated the defendant's due process right to have the jury fix the length of his sentence in

the exercise of its statutory discretion. (Id. at p. 346.) We are not persuaded that Hicks is

analogous. Section 288.5 does not state whether the jury or trial court should determine

on which of the charges a defendant should stand convicted. And Waters cites no other

authority for the proposition that he has a constitutionally protected liberty interest in

having the jury, rather than the court, select which of his convictions should stand;

Johnson and the other authorities discussed above demonstrate that the trial court has the




                                              14
power to dismiss either the individual or continuous sexual abuse convictions in the event

the prosecutor fails to charge in the alternative and a jury convicts a defendant of

overlapping offenses. (Johnson, supra, 28 Cal.4th at p. 248.)

       In any event, the trial court appropriately dismissed the section 288.5 conviction

because it carried the lower sentence (People v. Torres, supra, 102 Cal.App.4th at pp.

1060-1061), and thus any error in failing to give CALCRIM No. 3516 cannot constitute

prejudicial error. Our California Constitution specifies that no judgment may be set aside

based on errors of misdirection of the jury unless the error results in a miscarriage of

justice. (Cal. Const., art. VI, § 13; see People v. Breverman (1998) 19 Cal.4th 142, 177.)

Applying the proper People v. Watson (1956) 46 Cal.2d 818 standard of prejudice (see

Breverman, at p. 165) and having examined the entire record, it is not reasonably

probable any such error affected the outcome of the trial. (Ibid.)6 Our conclusion

necessarily rejects Waters's contention that the evidence was significantly conflicting,

that the jurors were confronted with "serious doubts" as to the number of times he may

have molested Z.D., or that the jurors had "difficulty" reaching their verdicts. Z.D.'s




6      In Breverman, the California Supreme Court made clear a harmless error analysis
applies even where an instructional error may have affected the jury's role in determining
every material issue presented by the evidence. (Breverman, supra, 19 Cal.4th at
pp. 164-177 [failure to sua sponte instruct, or to instruct fully, on a lesser included
offense is not a fundamental structural defect in the mechanism of the criminal
proceeding, which cannot be or should not be evaluated for prejudice; a "different result
cannot be reached by characterizing the error as the denial of the defendant's
'fundamental' right to a jury determination of all the material issues, then reasoning that
an appellate court's determination of harmlessness on the evidence cannot cure the
deprivation"].)
                                             15
testimony was unequivocal and specific. The jurors commenced their deliberations at

1:30 p.m. on a Monday, and reached verdicts as to the seven counts by 2:00 p.m. the next

day, but stated they were deadlocked on the remaining counts. The fact the jury could

not reach verdicts on a charge of aggravated sexual assault against Z.D. or on charges

related to another alleged victim does not discount the overwhelming evidence of

Waters's acts against Z.D.

       Additionally, the People point out that had the trial court instructed the jury with

CALCRIM No. 3516, they would have advocated for conviction on the individual

charges, or they would have dismissed the continuous sexual abuse charge and proceeded

with the individual counts. Thus, Waters has not shown that had the trial court instructed

the jury as to the alternative charges, there is a reasonable probability he would have

obtained a different outcome.




                                             16
                                  DISPOSITION

      The judgment is affirmed.




                                                O'ROURKE, J.

WE CONCUR:


HUFFMAN, Acting P. J.


IRION, J.




                                      17
