Filed 12/9/13 P. v. Heredia CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B242884

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA122526)
         v.

DAVID HEREDIA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of the County of Los Angeles,
John A. Torribio, Judge. Affirmed in part, vacated and modified in part, and remanded.
         Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne,
Supervising Deputy Attorney General, William N. Frank, Deputy Attorney General, for
Plaintiff and Respondent.
                                    INTRODUCTION
       Defendant and appellant David Heredia (defendant) was convicted of three counts
of oral copulation or sexual penetration with a child 10 years of age or younger (Pen.
Code, § 288.7, subd. (b)1); six counts of sexual intercourse or sodomy with a child 10
years of age or younger (§ 288.7, subd. (a)); one count of aggravated sexual assault of a
child under 14 years of age, by sexual penetration within the meaning of section 289,
subdivision (a) (§ 269, subd. (a)(5)); two counts of aggravated sexual assault of a child
under 14 years of age, by rape within the meaning of section 261, subdivisions (a)(2) and
(6) (§ 269, subd. (a)(1)); and one count of committing continuous sexual abuse of a child
under the age of 14 years (§ 288.5, subd. (a)) .
       On appeal, defendant contends that his conviction for continuous sexual abuse
must be vacated because he cannot be convicted separately of that crime and the
individual sexual conduct crimes committed against the same victim, here N.H., during
the same period; and his convictions for several crimes should be dismissed because they
were lesser included offenses of other crimes for which he was convicted. The Attorney
General concedes defendant’s first contention; disagrees with defendant’s second
contention; contends that defendant’s abstract of judgment does not reflect the trial
court’s oral pronouncement that his sentence for one of the offenses charged in count 4
be served concurrently with his sentence for the offense charged in the base term count
(count 2) and, therefore, the abstract of judgment should be corrected; and asserts the
judgment should be modified to impose on defendant the mandatory parole revocation
restitution fine pursuant to section 1202.45.
       We reverse defendant’s conviction for continuous sexual abuse; hold that the
abstract of judgment should be corrected to reflect the trial court’s oral pronouncement
that defendant’s sentence for the offense charged in count 4 be served concurrently with
his sentence for the offense charged in count 2; and modify the judgment to impose on


1
       All statutory citations are to the Penal Code unless otherwise noted.


                                                2
defendant an additional fine pursuant to section 1202.45, order it stayed, with the stay to
become permanent upon completion of parole. We otherwise affirm the judgment.


                         PROCEDURAL BACKGROUND2
       The District Attorney of Los Angeles County filed an information charging
defendant with three counts of oral copulation or sexual penetration with a child 10 years
of age or younger in violation of section 288.7, subdivision (b) (counts 1, 4, and 7); six
counts of sexual intercourse or sodomy with a child 10 years of age or younger in
violation of section 288.7, subdivision (a) (counts 2, 3, 5, 6, 8, and 9); three counts of
aggravated sexual assault of a child under 14 years of age, by sexual penetration within
the meaning of section 289, subdivision (a) in violation of section 269, subdivision (a)(5);
(counts 11, 14, and 17); six counts of aggravated sexual assault of a child under 14 years
of age, by rape within the meaning of section 261, subdivisions (a)(2) and (6) in violation
of section 269, subdivision (a)(1) (counts 12, 13, 15, 16, 18, and 19); and one count of
committing continuous sexual abuse of a child under the age of 14 years in violation of
section 288.5, subdivision (a) (count 10).
       Following a trial, the jury found defendant guilty of counts 1 through 13, and not
guilty of counts 17 through 19. After the jury was unable to reach a verdict on counts 14
through 16, the trial court dismissed the counts without prejudice.
       The trial court denied probation for defendant, and sentenced him to state prison
for a term of 55 years to life, consisting of a term of 25 years to life on count 2, and two
consecutive terms of 15 years to life on counts 11 and 13. The trial court imposed
concurrent terms on counts 4 through 9, and imposed but stayed sentences pursuant to
section 654 on counts 1, 3, 10, and 12. The trial court ordered defendant to pay various
fines and assessments, and awarded defendant 251 days of custody credit for actual time
served.


2
       Defendant does not challenge the factual bases for the convictions. As the issues
are procedural, we do not set forth the facts.

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                                      DISCUSSION
       A.     Defendant’s Convictions for Continuous Sexual Abuse and
              Substantial Sexual Conduct Crimes
       Defendant contends, and the Attorney General agrees, that defendant’s conviction
for continuous sexual abuse should be vacated because he cannot be convicted separately
of that crime and the substantial sexual conduct crimes committed against the same
victim during the same period. We agree.


              1.     Background Facts
       The information charged three separate, but consecutive, time periods during
which the crimes were committed: September 1, 2009, and August 31, 2010; September
1, 2010, and August 31, 2011; and September 1, 2011, and November 19, 2011. All of
the crimes concerned the same victim—N.H.
       Regarding the time period of September 1, 2009, through August 31, 2010,
defendant was charged in count 1 with oral copulation or sexual penetration with N.H., a
child, in violation of section 288.7, subdivision (b); counts 2 and 3 with sexual
intercourse or sodomy with N.H. in violation of section 288.7, subdivision (a); count 11
with aggravated sexual assault of N.H. by sexual penetration within the meaning of
section 289, subdivision (a), in violation of section 269, subdivision (a)(5); and counts 12
and 13 with aggravated sexual assault of N.H. by rape within the meaning of section 261,
subdivisions (a)(2) and (6), in violation of section 269, subdivision (a)(1). The
information also charged that defendant committed those same offenses against N.H.
between September 1, 2010, and August 31, 2011—counts 4, 5, 6, 14, 15, and 16, and
between September 1, 2011, and November 19, 2011—counts 7, 8, 9, 17, 18, 19.
       The information also charged defendant in count 10 with committing continuous
sexual abuse of N.H. in violation of section 288.5, subdivision (a) during all three time
periods, i.e., between September 1, 2009, and November 19, 2011. The information
further charged that defendant, while committing continuous sexual abuse, had
substantial sexual conduct with N.H. in violation of section 1203.066, subdivision (a)(8).

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       Defendant was ultimately found guilty of counts 1 through 13. Regarding count
10, the charge of committing continuous sexual abuse of N.H. in violation of section
288.5, subdivision (a) during all three time periods, the jury found true that the abuse
involved substantial sexual abuse. The trial court sentenced defendant to state prison for
a term of 16 years for that offense, but stayed the imposition of that sentence.


              2.     Analysis
       Section 288.5, subdivision (c) provides, “No . . . 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.” “‘Substantial sexual conduct’ means penetration of the
vagina or rectum of either the victim or the offender by the penis of the other or by any
foreign object, oral copulation, or masturbation of either the victim or the offender.”
(§1203.066, subd. (b).) “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.” (People v. Johnson (2002) 28 Cal.4th 240, 248.)
       Here, the information did not comply with section 288.5, subdivision (c), requiring
that the charge for continuous sexual abuse be charged alternatively with the substantial
sexual conduct crimes committed against the same victim during the same period. The
dates of defendant’s substantial sexual conduct acts against N.H. fell within the period of
his continuous sexual abuse of the same child. Defendant therefore cannot be convicted
of both those crimes and the continuous abuse. Because he was convicted of both,
“either the continuous abuse conviction or the convictions on the specific offenses must
be vacated.” (People v. Johnson, supra, 28 Cal.4th at pp. 244-245.)
       “It therefore is . . . appropriate, in deciding which convictions to vacate as the
remedy for a violation of the proscription against multiple convictions set forth in section

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288.5, subdivision (c), that we leave appellant standing convicted of the alternative
offenses that are most commensurate with his culpability.” (People v. Torres (2002) 102
Cal.App.4th 1053, 1059.) “‘A defendant who . . . continues to perpetrate sexual abuse for
a longer period of time than that required by section 288.5 [i.e, three months] is more
culpable than a defendant who perpetrates the continued abuse for a limited time.’”
(People v. Cortes (1999) 71 Cal.App.4th 62, 78, citing People v. Hord (1993) 15
Cal.App.4th 711, 720.)
       Section 288.5 imposes a high term sentence of 16 years, but defendant’s
conviction for the individual substantial sexual conduct crimes subjects him to a greater
sentence. (§§ 269 [15 years to life], 288.7, subdivision (a) [25 years to life] and (b) [15
years to life].) Defendant concedes that he “does not dispute his culpability is most
commensurate with the individual convictions, which impose life terms, and not the
violation of section 288.5, which only carries a determinate sentence.”
       We modify the judgment by vacating the section 288.5 conviction without
remand. (People v. Torres, supra, 102 Cal.App.4th at pp. 1060-1061.) Defendant’s
convictions for the offenses charged in counts 1 through 9, and 11 through 13 are upheld,
defendant’s conviction for the offense charged in count 10 (continuous sexual abuse) is
vacated, and the defendant’s sentence to state prison for a term of 16 years for the offense
charged in count 10 is stricken.


       B.     Lesser Included Offenses
       Defendant contends that his convictions for the offenses charged in counts 1, 2,
and 3 should be dismissed because those offenses were lesser included offenses of the
offenses charged in counts 11, 12, and 13. We disagree.


              1.     Applicable Law
       A defendant cannot be convicted of both an offense and a lesser offense
necessarily included within that offense. (People v. Medina (2007) 41 Cal.4th 685, 701-
702; People v. Pearson (1986) 42 Cal.3d 351, 355.) Generally, California courts

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“employ two alternative tests to determine whether a lesser offense is necessarily
included in a greater offense. Under the elements test, we look to see if all the legal
elements of the lesser crime are included in the definition of the greater crime, such that
the greater cannot be committed without committing the lesser. Under the accusatory
pleading test, by contrast, we look not to official definitions, but to whether the
accusatory pleading describes the greater offense in language such that the offender, if
guilty, must necessarily have also committed the lesser crime. [Citation.]” (People v.
Moon (2005) 37 Cal.4th 1, 25-26.)


              2.     Analysis
       Defendant contends that “[b]ased on the way these counts [i.e., counts 1-3, and 11-
13] are pleaded, together with the explanation of the prosecutor during closing argument,
it is evident that counts 1, 2, and 3 are lesser included offenses of counts 11, 12, and 13
under the accusatory pleading test. Counts 1, 2, and 3 allege the crimes of sexual
penetration and rape without force or duress, whereas counts 11, 12, 13 allege these same
crimes but with the added element of force.”
       In count 1, the information charged defendant with violating 288.7, subdivision (b)
by engaging in “oral copulation/sexual penetration” of N.H. In count 11, defendant was
charged with section 269, subdivision (a)(5) by engaging in “sexual penetration” of N.H.
During his closing arguments, the prosecutor said that both offenses concerned defendant
“using a finger” on N.H. The prosecutor said that the two offenses differed, however,
because defendant did not use force regarding the offense charged in count 1, but he used
force regarding the offense charged in count 11.
       In counts 2 and 3, the information charged defendant with violating 288.7,
subdivision (a) by engaging in “sexual intercourse and sodomy” with N.H. In counts 12
and 13, defendant was charged with section 269, subdivision (a)(1) by committing
“Rape” upon N.H. The prosecutor stated during his closing arguments that the offenses
charged in the four counts concerned defendant using his penis to “penetrate[] . . . the
vagina” of N.H. The counts differed, the prosecutor said, because defendant did not use

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force regarding the offenses charged in counts 2 and 3, but he used force regarding the
offenses charged in counts 12 and 13.
       Defendant’s contention that his convictions for the offenses charged in counts 1, 2
and 3 were lesser included offenses of the offenses charged in counts 11, 12, and 13 is
based on the accusatory pleading test. Defendant, however, invokes the wrong test. The
elements test, not the accusatory pleading test, is utilized to determine whether a charged
offense is a lesser included offense of another charged offense. Although there are two
tests for determining whether one offense is necessarily included in another, “[T]he
‘elements’ test [is applied where the] case involves the conviction of multiple alternative
charged offenses. . . . Under the ‘elements’ test, we look strictly to the statutory
elements, not to the specific facts of a given case. [Citation.]” (People v. Ramirez (2009)
45 Cal.4th 980, 984-985.) “Courts should consider the statutory elements and accusatory
pleading in deciding whether a defendant received notice, and therefore may be
convicted, of an uncharged crime, but only the statutory elements in deciding whether a
defendant may be convicted of multiple charged crimes.” (People v. Reed (2006) 38
Cal.4th 1224, 1231.) “The accusatory pleading test arose to ensure that defendants
receive notice before they can be convicted of an uncharged crime. ‘As to a lesser
included offense, the required notice is given when the specific language of the
accusatory pleading adequately warns the defendant that the People will seek to prove the
elements of the lesser offense.’ [Citation.] ‘Because a defendant is entitled to notice of
the charges, it makes sense to look to the accusatory pleading (as well as the elements of
the crimes) in deciding whether a defendant had adequate notice of an uncharged lesser
offense so as to permit conviction of that uncharged offense.’ [Citation.] But this
purpose has no relevance to deciding whether a defendant may be convicted of multiple
charged offenses. ‘[I]t makes no sense to look to the pleading, rather than just the legal
elements, in deciding whether conviction of two charged offenses is proper. Concerns
about notice are irrelevant when both offenses are separately charged . . . .’ [Citation.]”
(Id. at pp. 1229-1230.)



                                              8
        Here, defendant was convicted of multiple charged offenses; he was charged and
convicted of the offenses charged in counts 1-3, 11-13. We therefore apply the elements
test.


               a)     Section 288.7, Subdivision (b) as a Necessarily
                      Lesser Included Offense of Section 269, Subdivision (a)(5)


        Defendant contends that the offense of violating section 288.7, subdivision (b)
(count 1), is a lesser included offense of the violation of section 269, subdivision (a)(5)
(count 11). Under the elements test, it is not.
        Section 288.7, subdivision (b) provides, “Any person 18 years of age or older who
engages in oral copulation or sexual penetration, as defined in Section 289, with a child
who is 10 years of age or younger is guilty of a felony and shall be punished by
imprisonment in the state prison for a term of 15 years to life.” Section 269, subdivision
(a)(5) states, “(a) Any person who commits any of the following acts upon a child who is
under 14 years of age and seven or more years younger than the person is guilty of
aggravated sexual assault of a child: [¶] . . . [¶] (5) Sexual penetration, in violation of
subdivision (a) of Section 289.”
        “Oral copulation is the act of copulating the mouth of one person with the sexual
organ or anus of another person.” (§ 288a, subd. (a).) Section 289, subdivision (k)(1)
provides, “‘Sexual penetration’ is the act of causing the penetration, however slight, of
the genital or anal opening of any person or causing another person to so penetrate the
defendant’s or another person’s genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument, or device, or by any
unknown object.”
        As stated above, “Under the elements test, we look to see if all the legal elements
of the lesser crime are included in the definition of the greater crime, such that the greater
cannot be committed without committing the lesser.” (People v. Moon, supra, 37 Cal.4th



                                              9
at pp. 25-26.) It is possible for a person to violate section 269, subdivision (a)(5), and not
necessarily violate section 288.7, subdivision (b).
       Section 288.7, subdivision (b) is violated by an act of oral copulation or sexual
penetration. Section 269, subdivision (a)(5), is violated only by an act of sexual
penetration. A defendant therefore may violate section 269, subdivision (a)(5), without
committing oral copulation, one of acts that may constitute a violation of section 288.7,
subdivision (b).
       It is also possible for a person to violate section 269 without satisfying the age
requirements for either the violator or the victim set forth in section 288.7. Under section
269, the violator need only be seven years older than the victim, and the victim must be
under 14 years of age. Under section 288.7, the violator must be at least 18 years of age,
and the victim must be 10 years of age or younger. Section 269, and not section 288.7,
may be violated if, for example, the violator is 17 years old. Similarly, section 269 may
be violated if the victim is between the ages of 11 and 14, but a violation of section 288.7
requires that the victim be 10 years of age or younger.


              b)     Section 288.7, Subdivision (a) as a Necessarily Lesser Included
                     Offense of Section 269, Subdivision (a)(1)


       Defendant contends that the offense of violating section 288.7, subdivision (a)
(counts 2 and 3), is a lesser included offense of a violation of section 269, subdivision
(a)(5) (counts 12 and 13). Under the elements test, it is not.
       Section 288.7, subdivision (a) states that, “Any person 18 years of age or older
who engages in sexual intercourse or sodomy with a child who is 10 years of age or
younger is guilty of a felony and shall be punished by imprisonment in the state prison
for a term of 25 years to life.” Section 269, subdivision (a)(1) states, “(a) Any person
who commits any of the following acts upon a child who is under 14 years of age and
seven or more years younger than the person is guilty of aggravated sexual assault of a



                                             10
child: [¶] (1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section
261.”
        “Sodomy is sexual conduct consisting of contact between the penis of one person
and the anus of another person.” (§ 286, subd. (a).) Section 261, subdivision (a)
provides, “Rape is an act of sexual intercourse . . . .”
        Under the elements test, it is possible for a person to commit aggravated sexual
assault by rape of a child who is under fourteen years old and seven years or younger
than the person (§ 269, subd. (a)(1)), and not necessarily commit sexual intercourse or
sodomy of a child 10 years or younger by a person 18 years or older (§ 288.7, subd. (a)).
It is possible to violate section 269, subdivision (a)(1), without committing sodomy.
Section 288.7, subdivision (a) is violated by an act of sexual intercourse or sodomy.
Section 269, subdivision (a)(1), is violated only by an act of rape. Section 269,
subdivision (a)(1) therefore may be violated without committing sodomy, which would
be a factor in determining whether there was a violation section 288.7, subdivision (a).
And, as discussed above, it is possible for a person to violate section 269 without meeting
the age requirements of section 288.7.


        C.    Abstract Of Judgment
        The Attorney General contends that defendant’s abstract of judgment does not
reflect the trial court’s oral pronouncement that defendant’s sentence for the offense
charged as count 4 is to be served concurrently with the offense charged in count 2, the
base term count and, therefore, the abstract of judgment should be corrected. During its
oral pronouncement of sentencing, the trial court ordered defendant’s sentence for the
offense charged in count 4 to be served concurrently with the offense charged in the base
term count, count 2. This however is not reflected in the abstract of judgment. “[A] trial
court’s oral sentence governs if it is different from what appears in a minute order or an
abstract of judgment [citations].” (People v. Wynn (2010) 184 Cal.App.4th 1210, 1221;
People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; People v. Mitchell (2001) 26
Cal.4th 181, 185.) Accordingly, the abstract of judgment should be corrected to reflect

                                              11
the trial court’s oral pronouncement that defendant’s sentence for the offense charged in
count 4 be served concurrently with the offense charged in count 2.


       D.     Mandatory Parole Revocation Fine
       The Attorney General contends that we should modify the judgment to impose on
defendant a $200 parole revocation restitution fine pursuant to section 1202.45 because
that fine is mandatory. We agree.
       The trial court imposed a $200 restitution fine under section 1202.4, but it did not
impose a $200 section 1202.45 parole restitution fine, stayed or otherwise. At the time
defendant committed the charged offenses and was sentenced by the trial court, section
1202.45, subdivision (a), provided that, “In every case where a person is convicted of a
crime and whose sentence includes a period of parole, the court shall at the time of
imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an
additional parole revocation restitution fine in the same amount as that imposed pursuant
to subdivision (b) of Section 1202.4.” That additional fine “shall be suspended unless the
person’s parole . . . is revoked.” (§1202.45.)
       The failure to impose a mandatory fine is a jurisdictional error, which can be
raised for the first time on appeal by the Attorney General. (People v. Hong (1998) 64
Cal.App.4th 1071, 1080.) A court of appeal may correct an error in imposing a parole
revocation fine without remand. (People v. Smith (2001) 24 Cal.4th 849, 854.) We
therefore modify the judgment to impose on defendant an additional $200 fine pursuant
to section 1202.45, order it stayed, with the stay to become permanent upon completion
of parole.




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                                     DISPOSITION
       Defendant’s conviction under count 10 for continuous sexual abuse is vacated, and
the judgment is modified to reflect that defendant’s sentence to state prison for a term of
16 years on count 10 is stricken. Defendant’s judgment is also modified to impose on
defendant an additional $200 fine pursuant to section 1202.45; the fine is stayed, with the
stay to become permanent upon defendant’s completion of his parole. We remand the
matter to the trial court to amend the abstract of judgment accordingly. The abstract of
judgment shall also be corrected to reflect the trial court’s oral pronouncement that
defendant’s sentence for the offense charged in count 4 be served concurrently with the
offense charged in count 2, the base term count. We otherwise affirm the judgment.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                  MOSK, Acting P. J.


We concur:



              KRIEGLER, J.



              KUMAR, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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