Opinion
F077534
03-27-2020
THE PEOPLE, Plaintiff and Respondent, v. FRANK PATRICK CAMPISE, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF168650A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Frank Patrick Campise of the following five charges involving a 10-year-old girl. His convictions are listed by respective count.
1. Sexual intercourse with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a));
All future statutory references are to the Penal Code unless otherwise noted.
2. Oral copulation with a child 10 years old or younger (§ 288.7, subd. (b));
3. Sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b));
4. Continuous sexual abuse of a child younger than 14 years old (§ 288.5, subd. (a)); and
5. A lewd or lascivious act with a child younger than 14 years old (§ 288, subd. (a)).
In count 1, appellant was sentenced to 25 years to life. In counts 2 and 3, he received consecutive 15 years to life. In count 4, he received a consecutive determinate term of 12 years. In count 5, a sentence of six years was stayed pursuant to section 654.
Appellant contends the evidence is insufficient to support his conviction of sexual intercourse in count 1. We reject that claim. We agree with the parties, however, that appellant was improperly convicted of alternative charges. A defendant cannot be convicted of both a violation of section 288.5 (continuous sexual abuse) and of other specific felony sex offenses committed against the same victim during the same time period. (People v. Johnson (2002) 28 Cal.4th 240, 248 (Johnson).) Because appellant was improperly convicted of such alternative charges in this matter, we agree with respondent it is appropriate to vacate appellant's conviction in count 4 (continuous sexual abuse). We affirm the remaining convictions. We remand for resentencing but otherwise affirm the judgment.
BACKGROUND
We summarize the material trial evidence.
The Inappropriate Sexual Contact .
The victim in this matter, Jane Doe, was 11 years old at trial. Appellant is related to her by marriage. The inappropriate touchings occurred when Jane was 10 years old. From January 2017 to about May 2017, Jane was at appellant's residence several times per month. While appellant's wife and other adults were outside or otherwise busy, appellant and Jane would sneak into the master bedroom.
At trial, the victim was referred to as Jane Doe. We continue to use this pseudonym to protect her privacy. For ease of reading, we refer to her as Jane.
At least one sexual encounter occurred when Jane spent the night at appellant's residence. While appellant's wife and the wife's sister were asleep in their bedrooms, appellant touched Jane inappropriately in the living room.
Jane informed the jury that, before the inappropriate touchings started, she had been curious about sex. She had started viewing pornography. She began talking with appellant about her thoughts, which she described as "temptations" involving "boys' parts." After Jane disclosed her thoughts to appellant, they began to touch each other inappropriately.
During their encounters, appellant licked Jane's vagina. At trial, she estimated appellant orally copulated her more than 10 times. She said appellant also penetrated her vagina with his fingers while he licked her. During the various incidents, appellant asked Jane to touch him. She would play with "his balls" and rub his penis.
During her testimony, Jane often referred to her vagina as her "crotch." She agreed she meant "vagina" when she used the word crotch.
According to Jane, appellant repeatedly tried to put his penis inside her vagina. She testified "it wouldn't go in all the way, though." She would lie on the bed with her pants down, and he would try to push his penis inside her. Jane told the jury appellant's penis would "push" on her, but it would not go inside because "my hole isn't big enough." She said it hurt when appellant tried to penetrate her with his penis. She denied appellant's penis ever went inside her even a little bit. While he pushed against her, "gooey stuff" would come out.
Jane agreed that, when appellant was trying to push inside her vagina, the tip of his penis was touching her vagina, and his penis was lined up towards her vagina. According to Jane, appellant would ejaculate while he was pushing his penis "[i]n my crotch[,]" "on my crotch," and "against" her crotch.
Jane testified appellant's penis would initially be "like, soft, like kind of squishy and hard" before he pushed against her, and then it became harder. He told her it felt good. According to Jane, appellant would ejaculate in her crotch, and he would push the ejaculate inside her. She could feel a "warmness" from his "gooey stuff" as it went down inside her vagina. She estimated appellant tried to penetrate her vagina with his penis more than five times during their various encounters.
Jane's Parents Alert Authorities .
Appellant often told Jane not to tell anyone about their encounters. Their inappropriate behavior stopped when Jane's mother discovered text messages between appellant and Jane on an iPad which Jane used. The messages between appellant and Jane were of a sexual nature. Appellant had texted Jane, telling her to delete their messages. Jane's parents confronted her, and she became emotional. She confirmed she and appellant had engaged in sexual activity. Jane's parents notified law enforcement. At trial, appellant's text messages with Jane were admitted into evidence.
Appellant's Interview with Detectives .
On or about June 9, 2017, detectives met with Jane and her parents. Using Jane's iPad, detectives sent a message to appellant while posing as Jane. In part, the detectives wrote, "I like it when you touch me" and "Can you lick me again?" Appellant responded, "Stop that. Not on here. I have to go." A detective wrote back, "Okay, sorry," and "I just miss you." Appellant responded, "Me too, a lot." Appellant later wrote "Delete."
That same day, the detectives arranged (through Jane's parents) for appellant to pick up Jane and spend time with her. Instead, a deputy intercepted appellant and arrested him. The following day, the two detectives interviewed appellant. The interview was recorded and it was played for the jury.
Appellant initially denied any sexual contact with Jane. After a time, a detective told appellant he should help Jane and admit what had happened. Appellant eventually admitted he and Jane had touched each other.
Appellant admitted putting a finger insider Jane's vagina "[a] little bit." She rubbed his penis. He admitted he had become erect and he had ejaculated on his pants and on her hand. Appellant denied ever penetrating Jane's vagina with his penis or trying to do so. However, he conceded it was "possible" the tip of his penis had penetrated Jane, but he did not think it had happened.
Appellant admitted rubbing his penis on the outside of Jane's vagina, and he may have rubbed against her butt. He said they would take off their pants and he would lie on top of her and "we just rubbed together." He said some ejaculate might have gone on Jane's crotch "now and then" but it was not "full on" when that happened. He admitted putting his mouth on her vagina. He claimed Jane grabbed hold of his penis once and asked if he wanted her to suck it, but he said no. He claimed she had tried to suck him, but he jerked away because he did not "care for that."
According to appellant, Jane had initiated the sex talk between them. She had eventually offered to show appellant her body if he showed her his body. Appellant said he "fought it and then I gave in."
Appellant's Recorded Conversation with His Wife .
Shortly after his arrest, appellant spoke with his wife from jail. She said, "I cannot believe you did that," and he answered, "I know. I can't either." In subsequent telephone calls between them, he never denied engaging in sexual conduct with Jane.
Appellant Writes Apology Letters .
During his interview, the detectives invited appellant to write an apology letter to Jane. Sometime after his interview, appellant wrote an apology letter to Jane's family. It read, in part, "I want you to know that I'm very sorry for what I did. I never thought anything like this would happen with [Jane]."
After he was in jail, appellant wrote letters to members of his family saying he was sorry. He wrote to his wife, saying, in part, he had "had thoughts like these for a long while, but never acted on them."
The Stipulation .
The parties stipulated that, on June 10, 2017, appellant's wife had been interviewed by a detective at her residence. She told the detective "if someone was going to say there was molestation, she was going to call bullshit, ... especially if that person was [Jane]." The wife also informed the detective appellant was on "medications that makes him impotent." She said appellant does not take any erectile dysfunction medication.
At trial, appellant's wife said she made these statements because she was in shock at that time and she was defending her husband. She told the jury appellant does not take medication that makes him impotent. She told the jury she had not had intercourse with appellant for several years, and he had not expressed any sexual interest in her. Appellant never told her he was impotent.
DISCUSSION
I. SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT'S CONVICTION IN COUNT 1.
Appellant seeks reversal of his conviction in count 1 for sexual intercourse (§ 288.7, subd. (a)). He contends insufficient evidence supports this conviction.
Appellant raises this argument last in his opening brief. Because it is potentially dispositive for count 1 and could prevent a retrial for this charge, we address this claim before turning to appellant's other issues.
A. Standard of Review.
When considering a challenge to the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
B. Analysis.
Appellant argues substantial evidence does not establish sexual intercourse. He contends no "actual penetration" occurred. He emphasizes Jane's testimony when she confirmed appellant's penis did not go inside her even a little. Although appellant acknowledges Jane felt pain when he tried to penetrate her with his penis, he asserts nothing establishes her pain was caused by actual penetration. He notes Jane never testified the outer portion of her genitalia had been penetrated. He claims the reasonable inferences drawn from the evidence establish no penetration ever occurred. We disagree.
Section 288.7, subdivision (a), is a general intent crime. (People v. Mendoza (2015) 240 Cal.App.4th 72, 79.) This statute prohibits an adult from having "sexual intercourse or sodomy with a child who is 10 years of age or younger . . . ." (§ 288.7, subd. (a).)
Sexual intercourse with a minor occurs when the defendant's penis penetrates either the victim's vagina or the genitalia. Only a slight penetration is required. (People v. Mendoza, supra, 240 Cal.App.4th at p. 79; accord People v. Dunn (2012) 205 Cal.App.4th 1086, 1097; see also CALCRIM No. 1127.) To establish liability under section 288.7, subdivision (a), it is enough if the defendant's penis penetrates the victim's labia majora. Penetration of the vagina is not necessarily required. (People v. Dunn, supra, at p. 1097; see also People v. Mendoza, supra, at p. 79 [penetration of the victim's genitalia by the penis is sufficient]; People v. Quintana (2001) 89 Cal.App.4th 1362, 1367 ["The labia majora are part of the female genitalia."].)
The "labia majora" are "the outer fatty folds of the vulva bounding the vestibule[.]" (Merriam-Webster.com <https://www.merriam-webster.com/dictionary/labiamajora> [as of March 23, 2020].) The "vulva" is "the external parts of the female genital organs[.]" (Merriam-Webster.com <https://www.merriam-webster.com/dictionary/vulva> [as of March 23, 2020].)
In this matter, the jury was properly instructed with CALCRIM No. 1127 on the definition of sexual penetration. After the jury began its deliberations, it asked for readback of Jane's testimony, and it sought clarification of the term "penetration" for purposes of count 1. The court informed the jury in writing it should review CALCRIM No. 1127. The court also asked the jury to consider the following: "the word 'penetrate' means to pass, extend, or pierce into or through something. Any penetration into the female genitalia constitutes a sexual penetration. Penetration of the lips of a female's vagina by a penis is sufficient to constitute intercourse." Later that same morning, the jury reached its verdicts.
Jane's testimony overwhelmingly demonstrated appellant penetrated her genital organ. She testified appellant pushed his penis against her vagina and he tried to put it inside her. She would lie on the bed with her pants down. Appellant's penis would "push" on her but it would not go inside because "my hole isn't big enough." She said it hurt when appellant tried to penetrate her with his penis. Jane agreed that, when appellant was trying to push inside her vagina, the tip of his penis was touching her vagina, and his penis was lined up towards her vagina. According to Jane, appellant would ejaculate while he was pushing his penis "[i]n" her crotch, "on" her crotch, and "against" her crotch. She testified appellant would ejaculate in her crotch, and he would push the ejaculate inside her. She could feel a "warmness" from his "gooey stuff" as it went down inside her vagina.
The reasonable inferences drawn from this evidence conclusively established appellant's penis passed, extended, or pierced into or through Jane's vaginal lips. Indeed, it can be reasonably inferred she felt pain because appellant attempted to force his penis inside her vagina. Such evidence overwhelmingly suggested appellant's penis penetrated Jane's labia majora.
Appellant cites this court's opinion in People v. Rocca (1980) 106 Cal.App.3d 685 (Rocca). Rocca does not assist him. In Rocca, the victim described in detail the sexual intercourse she had endured with the defendant. Based on that detailed testimony, this court found sufficient evidence to support the defendant's conviction for unlawful sexual intercourse with a minor. (Id. at pp. 696-697.) Similar to Rocca, Jane's testimony, and the reasonable inferences drawn from it, established appellant's guilt in count 1.
Based on this record, a reasonable jury could have determined beyond any reasonable doubt appellant violated section 288.7, subdivision (a). The evidence in support of appellant's conviction is reasonable, credible and of solid value. As such, substantial evidence supports this judgment. (See People v. D'Arcy, supra, 48 Cal.4th at p. 293.) Accordingly, appellant's arguments are without merit, and this claim fails. II. WE VACATE THE CONVICTION IN COUNT 4.
The parties agree an improper conviction occurred in this matter. A violation of section 288.5 (continuous sexual abuse) must be alleged in the alternative to other acts of substantial sexual conduct involving the same minor during the same time period. (§ 288.5, subd. (c).) A defendant cannot be convicted of these overlapping and alternative charges. (Johnson, supra, 28 Cal.4th at p. 248; accord People v. Rojas (2015) 237 Cal.App.4th 1298, 1308; People v. Torres (2002) 102 Cal.App.4th 1053, 1055 (Torres).)
Here, the charges in counts 1 through 5 involved the same victim (Jane) during the same time period (January 1, 2017 through June 8, 2017). It is undisputed the prosecution failed to allege the continuous sexual abuse of Jane as an alternative charge to the other specific felony sex offenses. It is also undisputed the jury was never instructed the continuous sexual abuse charge was alternative to the other specific felony sex offenses. Instead, the jury was invited to find appellant guilty of all charges. As such, appellant was improperly convicted. (See Johnson, supra, 28 Cal.4th at p. 248; People v. Rojas, supra, 237 Cal.App.4th at p. 1308; Torres, supra, 102 Cal.App.4th at p. 1055.) We turn to the appropriate remedy.
In general, CALCRIM No. 3516 instructs a jury it cannot find a defendant guilty of alternative charges when the alternative charges involve the same event.
Appellant claims it is likely a properly instructed jury would have found him guilty only of the section 288.5 charge rather than the specific sexual offenses. He argues it is not proper for a reviewing court to make this determination. Finally, he states he is most culpable of continuous sexual abuse so he should be punished only for that offense. He asserts his convictions in count 1 (sexual intercourse), count 2 (oral copulation), count 3 (sexual penetration), and count 5 (a lewd or lascivious act) must be reversed.
In contrast, respondent urges us to reverse count 4 (continuous sexual abuse) and leave in place the remaining convictions. According to respondent, this remedy is commensurate with appellant's culpability.
The difference is substantial regarding which conviction or convictions is/are vacated. The maximum prison term for continuous sexual abuse (count 4) is a term of 16 years. (288.5, subd. (a).) In contrast, appellant received life sentences of 25 years, 15 years, and 15 years in counts 1, 2 and 3, respectively.
We agree with respondent and we reject appellant's various assertions. Three opinions are instructive regarding why the conviction in count 4, and only in count 4, should be vacated. We review (1) Johnson, supra, 28 Cal.4th 240; (2) Torres, supra, 102 Cal.App.4th 1053; and (3) People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson).
A. Johnson , supra, 28 Cal.4th 240.
In Johnson, the defendant was convicted of one count of continuous sexual abuse of a minor (§ 288.5, subd. (a)) and five counts of other specific sexual offenses involving the same victim during the same time period. (Johnson, supra, 28 Cal.4th at p. 243.) The trial court sentenced the defendant to the maximum prison term of 16 years for the continuous sexual abuse. Pursuant to section 654, it stayed the sentences on the remaining counts. (Johnson, supra, at pp. 243-244.)
Our Supreme Court held section 288.5, subdivision (c), precludes multiple convictions for alternative offenses of continuous sexual abuse and specific felony sex offenses against the same victim during the same time period. (Johnson, supra, 28 Cal.4th at p. 248.) The high court determined "either the continuous abuse conviction or the convictions on the specific offenses must be vacated." (Id. at p. 245.) The Court of Appeal had reversed the defendant's convictions in the five counts representing the specific sexual offenses. Because the appellate court had reversed those convictions, our high court affirmed the judgment. (Id. at p. 248.)
B. Torres , supra, 102 Cal.App.4th 1053.
In Torres, the defendant was convicted of continuous sexual abuse and 10 separate felony sex offenses against the same victim. (Torres, supra, 102 Cal.App.4th at p. 1055.) In light of Johnson, the Torres court held the defendant could not be convicted of both a violation of section 288.5 and of specific felony sex offenses committed against the same victim during the same time period. The Torres court further held the appropriate remedy was to reverse the defendant's conviction on the section 288.5 count. (Torres, supra, at pp. 1055-1056.) The appellate court declared that, when deciding which convictions to vacate in this situation, a defendant must be left "standing convicted of the alternative offenses that are most commensurate with his culpability." (Id. at p. 1059.) The Torres court noted the defendant had committed not only the three acts necessary to establish a continuous sexual abuse, but also 10 separate felony sex offenses against the minor victim, including four counts of rape. (Id. at pp. 1059-1060.) Because of the number and severity of the specific offenses, the defendant "faced a greater maximum aggregate penalty with respect to these than he did on the continuous sexual abuse offense." (Id. at p. 1060.) The trial court had imposed a greater aggregate sentence with respect to the specific offenses, and it had stayed sentence for the section 288.5 conviction. As such, the appropriate remedy was to reverse the conviction for violating section 288.5. (Torres, supra, at p. 1060.)
C. Wilson , supra, 33 Cal.App.5th 559.
In Wilson, the defendant was convicted of 12 counts of lewd acts (§ 288, subd. (b)(1)), and one count of continuous sexual abuse (§ 288.5, subd. (a)). The same minor was involved in all counts, and these acts all occurred during the same time period. (Wilson, supra, 33 Cal.App.5th at pp. 560-561.) The trial court had rejected the defendant's request to instruct the jury it could not convict him of both continuous sexual abuse and the specific offenses. The trial court had reasoned that, if the jury convicted the defendant of alternative charges, the continuous sexual abuse conviction could be vacated. (Id. at p. 573.) At sentencing, the court dismissed the continuous sexual abuse count as duplicative to the other counts. (Id. at p. 561.) The Wilson court concluded instructional error had occurred because the jury had not been informed the continuous sexual abuse count was an alternative charge to the 12 counts of specific lewd acts. (Id. at p. 561.) The Wilson court, however, found the error harmless and it affirmed the judgment. (Ibid.)
On appeal, the defendant asserted the trial court should have sentenced him only on the continuous sexual abuse count and dismissed the 12 lewd act convictions. The defendant noted that, in Johnson, the high court had affirmed vacating the individual sexual offense convictions rather than the single conviction for continuous sexual abuse. (Wilson, supra, 33 Cal.App.5th at p. 574.) The Wilson court, however, concluded Johnson had not been "presented with the question of whether a court could properly vacate the continuous sexual abuse conviction rather than the convictions for specific offenses. And Torres explains that in the case of dual convictions, the court should leave the defendant convicted of the offense most commensurate with his culpability." (Wilson, supra, at p. 574.) According to Wilson, "the verdicts show that the jury in fact found that defendant committed all 12 specific lewd acts that were alleged. We see no likelihood that, if properly instructed, the jury would not have convicted defendant of counts 1 through 12. Nor can we fault the trial court's conclusion that the convictions of counts 1 through 12 were most commensurate with defendant's culpability. To vacate these convictions, based simply on the trial court's procedural mistake in failing to instruct that section 288.5 was an alternative to counts 1 through 12, would give defendant an unjustified windfall." (Id. at p. 574.)
D. Based on Johnson, Torres and Wilson, it is proper to reverse the conviction in count 4 and leave the remaining convictions in place.
The jury determined appellant committed three specific sexual acts with Jane, i.e., sexual intercourse (count 1), oral copulation (count 2), and sexual penetration (count 3). In addition, the jury found appellant guilty of continuous sexual abuse (count 4) and a lewd or lascivious act (count 5).
Appellant's conviction in count 4 (continuous sexual abuse) required a showing he had engaged in either three or more acts of "substantial sexual conduct" or three or more acts of "lewd or lascivious conduct" with Jane over a three month or longer period. (§ 288.5, subd. (a).) The jury did not need to agree on which acts constituted the required number, but they were required to unanimously agree the requisite number of acts had occurred. (Id. at subd. (b); see also CALCRIM No. 1120.)
For purposes of continuous sexual abuse under section 288.5, "[s]ubstantial 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).) "Lewd or lascivious conduct" under this charge is any willful touching of a child with the intent to sexually arouse the perpetrator or the child. This may also involve causing the child to touch his or her own body or someone else's body with the requisite intent. (§ 288, subd. (a); see also CALCRIM No. 1120.)
It is impossible to determine which acts the jury agreed upon in finding appellant guilty of continuous sexual abuse. In contrast, however, the charges in counts 1, 2, 3 and 5 required the jury to make findings of very specific sexual misconduct. In count 1, the jury necessarily concluded appellant intended to, and he did, penetrate Jane's vagina and/or genitalia with his penis. (§ 288.7, subd. (a).) In count 2, the jury necessarily determined appellant intended to, and he did, touch Jane's vagina with his mouth (or Jane touched his penis with her mouth). (§ 288.7, subd. (b).) In count 3, the jury necessarily decided appellant intended to, and he did, penetrate Jane's vagina with an object for the purpose of sexual abuse, arousal or gratification. (§ 288.7, subd. (b).) In count 5, the jury necessarily found appellant intended to, and he did, touch Jane's body (or cause her to touch his body) with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of himself or Jane. (§ 288, subd. (a).)
At sentencing, the trial court determined the charge in count 4 was based on facts that differed from the charges in counts 1, 2 and 3. On that basis, the court ordered appellant to serve a consecutive term in count 4. The court further determined the crimes in counts 1, 2, 3, and 4 were independent of each other. Thus, the court sentenced appellant to consecutive prison terms for the convictions in counts 1, 2, 3, and 4. The sentence in count 5 (a lewd or lascivious act) was stayed pursuant to section 654.
We reject appellant's claim it is likely a properly instructed jury would have found him guilty only on the section 288.5 charge rather than the other specific sexual offenses. To the contrary, appellant did far more than the minimum three acts necessary to establish his continuous sexual abuse of Jane. (§ 288.5, subd. (a).) The jury determined he had intercourse with Jane, he orally copulated her, he penetrated her vagina with an object, and he engaged in a lewd or lascivious act. In light of the jury's specific findings regarding appellant's intent and his conduct, it is beyond any reasonable doubt that, had the jury been properly instructed, it would have nevertheless found appellant guilty in counts 1, 2, 3, and 5.
Appellant's convictions for the specific sexual offenses are most commensurate with his culpability. Indeed, the convictions in counts 1, 2 and 3 establish the jury's determination appellant invaded the most intimate portions of Jane's body. The convictions in counts 1, 2 and 3 also carry far greater punishment than the conviction for continuous sexual abuse. When considering which alternative charges to vacate, it is appropriate to consider how a defendant's sentence will be impacted. "This will ordinarily translate to upholding whichever conviction resulted in the greater aggregate penalty and vacating the less serious count." (People v. Rojas, supra, 237 Cal.App.4th at p. 1309; see also Torres, supra, 102 Cal.App.4th at p. 1060 [appellate court noted the number and severity of the defendant's specific offenses, and the fact the defendant "faced a greater maximum aggregate penalty with respect to these than he did on the continuous sexual abuse offense."].) Thus, it is not proper to vacate appellant's convictions in counts 1, 2, 3 and 5. Instead, it is appropriate to vacate his conviction in count 4 to ensure his convictions are proportionate to his overall criminal liability. (See Johnson, supra, 28 Cal.4th at p. 248; Wilson, supra, 33 Cal.App.5th at p. 574; Torres, supra, 102 Cal.App.4th at p. 1059.)
Appellant claims due process and jury trial rights are violated if a reviewing court, and not the jury, decides a defendant's guilt among alternative charges. He asserts Johnson's remedy violates constitutional rights, and this remedy fails to address the prejudice a defendant suffers in this situation. He relies, in part, on Hicks v. Oklahoma (1980) 447 U.S. 343 (Hicks).
In Hicks, the trial court 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 determine the length of his punishment. The jury returned a guilty verdict and imposed the mandatory 40-year term. (Hicks, supra, 447 U.S. at pp. 344-345.) In an unrelated case, an Oklahoma appellate court had declared the mandatory 40-year sentence unconstitutional. The defendant relied on that decision and tried to set aside his own jury-imposed mandatory sentence. The state court denied his motion and held the unconstitutional statute did not prejudice the defendant because his sentence was within the range of punishment which the jury could have imposed. (Id. at pp. 344-345.)
The United States Supreme Court determined that, had the jury been correctly instructed, it could have imposed any sentence of at least 10 years. As such, the high court concluded a "substantial" possibility existed the jury could have returned a sentence of less than 40 years. (Hicks, supra, 447 U.S. at p. 346.) Thus, the defendant's due process rights had been infringed. The state had provided for the imposition of criminal punishment at the discretion of the jury, but that discretion had been taken from the jury. (Id. at p. 346.)
Hicks is not analogous to the present situation. Unlike the statute at issue in Hicks, section 288.5 did not permit the jury to fix the length of appellant's punishment for his continuous sexual abuse of Jane. Section 288.5 also makes no reference to alternative verdicts or who determines which alternative verdict should stand. In cases not involving the death penalty, the issue of punishment in California should never enter into the jury's deliberations. (People v. Engelman (2002) 28 Cal.4th 436, 442; People v. Allison (1989) 48 Cal.3d 879, 892.)
Section 288.5 was enacted to provide additional protection for children subjected to continuing sexual abuse. (Johnson, supra, 28 Cal.4th at p. 247.) According to Johnson, the Legislature was apparently not seeking to increase potential convictions or punishments against defendants when it enacted section 288.5. Instead, this statute lowers the unanimity hurdle, which had prevented molestation prosecutions. (Johnson, supra, 28 Cal.4th at p. 247.) As such, it is apparent section 288.5 is intended as a safety net in child molestation cases.
Under section 288.5, subdivision (b), a jury "need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number."
Our high court in Johnson directs a reviewing court to vacate either the individual or continuous sexual abuse convictions when a prosecutor fails to charge these counts in the alternative and a jury convicts a defendant of overlapping offenses. (Johnson, supra, 28 Cal.4th at p. 248.) Nothing from Johnson, Torres, or Wilson suggests appellant will suffer a due process and/or a Sixth Amendment violation from this remedy. Indeed, the jury found appellant guilty beyond a reasonable doubt of the specific sexual offenses charged in counts 1, 2, 3 and 5. Hicks is inapplicable in this matter.
Appellant's other opinions are inapposite. In People v. Scofield (1928) 203 Cal. 703, the jury found the defendant guilty of an offense that could be committed by a number of alternative acts. The trial court, however, had failed to instruct the jury it had to agree which act had occurred. (Id. at p. 709.) In contrast to Scofield, the present matter does not involve any unanimity concerns. Instead, with CALCRIM No. 3501, the jury received a unanimity instruction regarding the charges in counts 1, 2, 3, and 5.
Finally, in Apprendi v. New Jersey (2000) 530 U.S. 466 and United States v. Booker (2005) 543 U.S. 220, the United States Supreme Court emphasized that all facts (other than a prior conviction) which increases the penalty for a crime beyond the prescribed statutory maximum must be established beyond a reasonable doubt to a jury (or the defendant must enter a plea). (Booker, supra, 543 U.S. at p. 244; Apprendi, supra, 530 U.S. at p. 490.) The principle set forth in Booker and Apprendi was not violated in this matter. The facts underlying each of appellant's convictions were found established by the jury beyond a reasonable doubt. Neither Booker nor Apprendi require a reversal of the convictions in counts 1, 2, 3, and 5.
Based on this record, appellant was improperly convicted of alternative charges. His convictions in count 1 (sexual intercourse), count 2 (oral copulation), count 3 (sexual penetration) and count 5 (a lewd or lascivious act) are most commensurate with his culpability. Thus, it is appropriate to vacate appellant's conviction in count 4 to ensure his convictions are proportionate to his overall criminal liability. (See Johnson, supra, 28 Cal.4th at p. 248; Wilson, supra, 33 Cal.App.5th at p. 574; Torres, supra, 102 Cal.App.4th at p. 1059.) Accordingly, we vacate the conviction in count 4, and we remand this matter for resentencing.
DISPOSITION
Appellant's conviction in count 4 is vacated. This matter is remanded for resentencing. Following resentencing, the trial court shall forward amended abstracts of judgment to the appropriate authorities. In all other respects, appellant's judgment is affirmed.
FRANSON, Acting P.J. WE CONCUR: SMITH, J. SNAUFFER, J.