Opinion
C081225
06-02-2017
In re R.I., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.I., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV134349)
Following a contested jurisdiction hearing, the juvenile court sustained a petition alleging that minor R.I. committed two counts of lewd or lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a); counts one & two) and two counts of lewd or lascivious acts upon a child under the age of 14 by force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 288, subd. (b); counts three & four), all based on a single incident. The victim is minor's younger sister. After sustaining the petition, the juvenile court continued minor as a ward of the court and ordered him to serve 200 days in custody with credit for 200 days served and placed minor on probation with various conditions.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
On appeal, minor contends: (1) the juvenile court erred in admitting statements the victim made to her mother and godmother under the fresh-complaint doctrine; (2) there was insufficient evidence to support the juvenile court's finding that the lewd or lascivious acts were committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury; (3) there was insufficient evidence to sustain the petition as to the number and types of lewd or lascivious acts committed; and (4) if there is sufficient evidence to support the juvenile court's finding that the lewd or lascivious acts were committed by force, the two sustained violations of section 288, subdivision (a), must be dismissed because section 288, subdivision (a), is a lesser included offense of section 288, subdivision (b).
We reverse the true findings on the lewd or lascivious acts counts (§ 288, subd. (a)), which the prosecutor indicated had been charged in the alternative, and dismiss the allegations as to those counts.
In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 27, 2015, a petition under Welfare and Institutions Code section 602 was filed, alleging that minor had committed two lewd or lascivious acts upon a child under the age of 14 (§ 288, subd. (a)). On October 7, 2015, an amended petition was filed, adding two counts of lewd or lascivious acts upon a child under the age of 14 by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (§ 288, subd. (b).) Prior to the contested jurisdiction hearing, the prosecutor advised the juvenile court that the new counts under section 288, subdivision (b), were charged in the alternative to the counts under section 288, subdivision (a).
The first witness to testify was the victim, N.I. At the time of the contested jurisdiction hearing N.I. was 15 years old. Although she was afraid to testify against her brother because she was concerned her family would get mad at her, N.I. testified that her brother sexually assaulted her when she was nine years old and he was 13 years old.
N.I. provided the following description of the alleged sexual assault. On the day of the assault, she and her brother went for a swim in the pool at their apartment complex while their mother was at work. After they got out of the pool, she went into the shower. While she was in the shower, her brother came into the bathroom and got into the shower. He "pinned" her to the wall. He then placed his penis inside her "butt" as he pushed her against the wall. She was bent over at a 90-degree angle. According to N.I., her brother's penis was hard and it hurt the middle of her buttocks. When she tried to push her brother off, he "just keeps putting it in" and held her in the area of her back with his hands while she was bent over. Eventually, she "turned around really fast," pushed her brother, and got out of the shower. She then ran to her sister's room, locked the door, and cried until her mother came home.
Following this portion of N.I.'s testimony, the court recessed for the day. The next day, when the direct examination resumed, N.I. recanted her testimony from the previous day. She said, "I feel bad seeing my brother like that and to be honest I don't remember if he did anything to me." Thereafter, she denied that her brother had sexually assaulted her. She also denied that she had told Detective James Waters or a social worker named Jeannine Lopez that her brother had sexually assaulted her. In addition, N.I. claimed that she was not afraid of her brother, and denied that her brother had ever hit her, threatened her, or threatened any other person in her family. She also denied that her brother had repeatedly punched their mother in the face in 2012. While N.I. acknowledged that she had told her mother, sister, and Detective Waters that her brother had raped her, she claimed she lied because she was mad at her brother. According to N.I., she made up the story because she wanted her brother to be kicked out of the family home. N.I. also claimed that she would have immediately told her mother and sister if her brother had raped her.
N.I.'s godmother testified that in early December 2014, N.I. called and asked if she could come over to talk to her. N.I. told her something sexual in nature had happened between her and her brother, and that it was something she did not want to do. The godmother explained that N.I. was crying and visibly shaken during the conversation. The godmother said she was very surprised at what N.I. told her, noting, "It was something very ugly, and I wasn't expecting her to say something like that." According to the godmother, N.I. indicated to her that N.I. had told her mother about the assault.
N.I. testified that she told her godmother that her brother had raped her. N.I. acknowledged that she was upset at her mother at the time that she made this statement. After N.I. reported that her brother had raped her, she was removed from the family home by Child Protective Services and placed with her godmother. The godmother testified that during the time N.I. lived with her, N.I. talked about what her brother had done to her on several occasions. However, the godmother did not testify about the specifics of what N.I. said during these conversations.
Around two weeks after this conversation took place, Lopez met with N.I. at her school. N.I. told Lopez that her brother had sexually assaulted her in 2009. N.I. explained that her brother got into the shower with her, forced her forward and bent her over, and forcibly held her while he penetrated her vaginally. He then turned her around, tried to push her head downward, and force his penis into her mouth. N.I. further explained that while her brother was forcing her down, she was able to push him away and get out of the shower.
When Lopez asked N.I. why she waited so long to tell anyone about the assault, N.I. explained that she was in counseling at the time for domestic violence involving her parents and did not feel it was safe to tell anybody about the assault, especially the therapist, because she and her brother shared the same therapist. N.I. further explained that she was afraid to report the assault because she lived in fear of her brother. She said that he was using drugs, engaging in violence with other family members and threatening to kill them, and breaking into the house.
N.I. told Lopez that she decided to report the assault to her mother because she was tired of all the problems her brother was creating in the family home and did not feel safe given his drug use and violent behavior. During Lopez's conversation with N.I., she noted that N.I. cried and expressed relief.
When Lopez spoke with N.I.'s mother, the mother admitted that N.I. had told her about the sexual assault in August 2014, but decided not to do anything about it because she did not believe N.I.
Sacramento County Deputy Sheriff Steve Lickiss went to N.I.'s school where he spoke with her in the presence of Lopez. N.I. told Deputy Lickiss that when she was nine years old, she had gone swimming and then gotten into the shower. N.I. said that her brother got into the shower with her, forced her to bend over, and then placed his penis inside of her. N.I. also said that her brother asked her to suck his penis, but she refused to do so and got out of the shower. N.I. explained that she decided to disclose the sexual assault to her godmother after her brother threatened to kill her sister's baby.
When N.I.'s mother arrived, she admitted to Deputy Lickiss that she was aware of the sexual assault allegation made by her daughter but did not believe her. N.I. initially told Deputy Lickiss that she had not told her mother about the assault, but after Deputy Lickiss spoke with N.I.'s mother, N.I. admitted she lied to him about that, explaining that she was afraid she would be taken away from her family because her mother did not believe her.
When N.I. met with Detective Waters about a month later, she provided a similar account of what her brother had done to her. However, she reported more details, adding that her brother had bent her forward and placed his penis in her "butt." N.I. told Detective Waters that she could not get away because he had her bent over forward and had his hands on her back. She also said that her brother told her to shut up and refused to stop when she asked him to do so. N.I. further reported that her brother got in front of her and briefly inserted his penis into her vagina, and then asked her to put her mouth on his penis. N.I. described her brother's penis as being "straight out," and said it hurt when his penis was in her "butt" and that her body hurt after the assault. N.I. also told the detective that her brother had threatened her with a gun several months prior to the interview, and that her mother had been aware of her rape accusation for about six months.
When N.I.'s mother testified, she repeatedly maintained that N.I. never said her brother had sexually assaulted her; instead, she claimed N.I. had only told her that her brother had done "something" to her. N.I.'s mother also maintained that her son was not violent or threatening toward her children, and denied that her son had hit her multiple times in the face on September 21, 2012. However, the sheriff's officer that took mother's statement on that day testified about that prior statement. N.I.'s mother reported that her son had hit her multiple times. The officer also testified that he had observed swelling on mother's face and left arm. While N.I.'s mother acknowledged during her testimony that she had obtained a restraining order against her son, and that her son was brought before the juvenile court for hitting his stepdad when he was 16 years old, she claimed that the only reason she obtained the restraining order was because the social workers would not return her daughters unless she did so.
At the conclusion of the hearing, the juvenile court sustained the allegations in the petition. The court continued minor as a ward of the court and ordered him to serve 200 days in custody with credit for 200 days served. The court also imposed various conditions of probation.
DISCUSSION
I. Admissibility of N.I.'s Statements to Her Godmother and Mother
A. Additional Background and Minor's Contentions
At the beginning of the contested jurisdictional hearing, minor's counsel objected to the admission of the statements N.I. made to her mother and godmother. Counsel asserted that the statements were not admissible under the fresh-complaint doctrine because the incident happened in 2009 and the statements were made in 2014. However, counsel asked the court to reserve ruling on this issue until before the godmother's testimony scheduled for the following day. The prosecutor argued that the statements to the mother and godmother were N.I.'s first disclosure of the sexual assault and were still admissible under the fresh-complaint doctrine.
The matter was discussed the following day before N.I. was called to the stand to resume direct examination. At that time, defense counsel told the court she had talked with the prosecutor about what he intended to elicit by way of testimony. Defense counsel explained, "The way I understand it we don't have an objection. Basically the witnesses are going to testify that a complaint was made. They can talk about the timing of the complaint, the nature of the complaint. They're not going to recite word for word [N.I.]'s statement." Counsel added, "And, in fact, we want that information in any way." The court ruled that the testimony would be admissible under the fresh-complaint doctrine and invited defense counsel to object on hearsay grounds if "it's getting into too much specifics." No hearsay objection was made during the testimony of the mother or godmother.
Minor contends the juvenile court prejudicially erred in admitting the testimony the mother and godmother gave about N.I.'s report of the sexual assault to them. According to minor, the sexual assault allegations made by N.I. to her mother and godmother were hearsay and not admissible under the fresh-complaint doctrine. The People argue that minor forfeited this objection and in any event, the statements were admissible under the fresh-complaint doctrine. We agree with both arguments advanced by the People, but we also note that testimony about any and all prior statements that were inconsistent with and admitted after N.I.'s recantation were admissible as prior inconsistent statements, including the statements N.I. made to the mother and godmother.
B. Forfeiture
Preliminarily, we agree with the People that minor has not preserved this issue for appeal. "[N]umerous decisions by [our Supreme Court] have established the general rule that trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal." (People v. Dykes (2009) 46 Cal.4th 731, 756.) Here, defense counsel stated that she did not have an objection because the prosecutor indicated that the witnesses would only testify about the timing and nature of N.I.'s complaints but not the details of the alleged sexual assault and added, "[W]e want that information in any way." The juvenile court advised defense counsel that she could object on hearsay grounds if the prosecutor attempted to elicit specific details about the alleged sexual assault. However, during the contested jurisdiction hearing, defense counsel did not raise a hearsay objection to the specific testimony minor challenges on appeal. Accordingly, minor has forfeited his claim on appeal.
Even if we were to consider minor's claim, we would conclude that it lacks merit. An appellate court reviews trial court rulings on the admissibility of evidence for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 203.) Reversal is only appropriate when the court erred by admitting the evidence and that error resulted in prejudice. (People v. Marks (2003) 31 Cal.4th 197, 226-227 [when the court abuses its discretion in admitting evidence, the judgment must be affirmed unless it is reasonably probable a different result would have occurred if the evidence had been excluded].) As we next explain, the trial court did not abuse its discretion by admitting the evidence under the fresh-complaint doctrine.
C. Fresh-Complaint
The California Supreme Court has explained the fresh-complaint doctrine: "[P]roof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose--namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others--whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred. Under . . . generally applicable evidentiary rules, the timing of a complaint (e.g., whether it was made promptly after the incident or, rather, at a later date) and the circumstances under which it was made (e.g., whether it was volunteered spontaneously or, instead, was made only in response to the inquiry of another person) are not necessarily determinative of the admissibility of evidence of the complaint. Thus, the 'freshness' of a complaint, and the 'volunteered' nature of the complaint, should not be viewed as essential prerequisites to the admissibility of such evidence." (People v. Brown (1994) 8 Cal.4th 746, 749-750 (Brown).)
However, under the fresh-complaint doctrine, evidence of the victim's disclosure of the alleged offense should be "limited to the fact of the making of the complaint and other circumstances material to this limited purpose." (Brown, supra, 8 Cal.4th at p. 763.) Although "details" are not allowed, limited relevant evidence may be admitted. (Id. at pp. 756, 760.) In People v. Burton (1961) 55 Cal.2d 328 at page 351, abrogated on another ground in Brown, at pages 748-750, 762-763, the victim's testimony that the victim's stepfather " 'made me play with his peter' " was permissible as a statement of the fact of molestation. (Burton, at pp. 337, 352.) The Burton court held that "the alleged victim's statement of the nature of the offense and the identity of the asserted offender, without details, is proper." (Id. at p. 351.)
The testimony elicited by the prosecutor from the godmother about N.I.'s complaint was general in nature and did not involve any details of the alleged sexual assault. Further, when the prosecutor asked mother about whether N.I. had made a complaint to her, mother denied N.I. reported she had been sexually assaulted. Instead, mother testified that N.I. had only told her that "something" had been done to her by her brother when they were little. Prior statements of the mother made to Deputy Lickiss revealed only that the mother acknowledged that N.I. previously reported being sexually assaulted by minor. Because the challenged testimony falls within the fresh-complaint doctrine, the trial court did not error in admitting the evidence.
We are unpersuaded by minor's contention that N.I.'s complaints were too remote in time to be deemed admissible under the fresh-complaint doctrine. Nor are we persuaded that the probative value of the evidence is outweighed by its prejudicial effect. (See Brown, supra, 8 Cal.4th at pp. 761-762 [evidence of a delayed complaint can be "relevant to the jury's evaluation of the likelihood that the offense did or did not occur"; "[s]o long as the evidence that is admitted is carefully limited to the fact that a complaint was made, and to the circumstances surrounding the making of the complaint, thereby eliminating or at least minimizing the risk that the jury will rely upon the evidence for an impermissible hearsay purpose, admission of such relevant evidence should assist in enlightening the jury without improperly prejudicing the defendant"].)
In this case, the circumstances under which the sexual assault came to light were reasonably probative of the likelihood that the sexual assault did or did not occur. The record discloses that N.I. lived in fear of her brother and did not feel that it was safe to report the assault until years after it occurred. The record further discloses that N.I. ultimately disclosed the alleged assault because she wanted her brother to be kicked out of the family home since he was using drugs and engaging in violent behavior, including threatening harm to her sister's baby. However, there was also evidence that N.I. reported the alleged assault to her mother because she was mad at her brother for telling people that she was not his sister and because her mother favored him. In addition, there was evidence that at the time N.I. reported the alleged assault to her godmother N.I. was mad at her mother and wanted to live with her godmother. While some of these motivations for the disclosures were relevant to the circumstances under which the disclosures were made and may have cut in favor of a finding that the disclosures were not credible (hence defense counsel's reason for wanting the disclosures to be introduced), the motivations do not make the disclosures inadmissible.
D. Prior Inconsistent Statement
The trial court ruled that the statements N.I. made to her mother and godmother would be admissible under the fresh-complaint doctrine on the second day of the contested jurisdictional hearing, just before N.I. resumed her testimony. After the ruling, N.I. recanted her testimony from the first day. At first, she claimed she did not remember if minor had done anything to her. Thereafter, she denied that minor sexually assaulted her, stating he did not put his penis in her "butt," that his penis did not go inside of her vagina, and that he did not ask her to "suck his penis." When asked what were some of the worst things her brother ever did to her, she replied, "Well, nothing."
Thus, N.I.'s recantation testimony was inconsistent with her statements to both her mother and godmother. After N.I. testified, the trial court excused her subject to recall. Accordingly, the statements N.I. made to both her mother and godmother were admissible for the truth of the matter asserted as prior inconsistent statements. (Evid. Code, §§ 770, 1235; People v. Zapien (1993) 4 Cal.4th 929, 951-952; People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.) Had trial counsel renewed her objection during the testimony of the mother or grandmother about what N.I. told them, the objection would have been appropriately overruled.
E. Harmless Error
Finally, even assuming the trial court erred in admitting the challenged testimony, minor suffered no prejudice. The disclosure testimony by mother and the godmother was merely cumulative to N.I.'s initial testimony on direct examination and evidence concerning other statements N.I. made.
N.I. testified about the details of the sexual assault and said she told her mother, godmother, sister, and Detective Waters what minor had done to her. Lopez, Deputy Lickiss, and Detective Waters all testified about the details of statements N.I. made to them. Under the circumstances, it is not reasonably probable that a result more favorable to minor would have occurred if the trial court had excluded the challenged testimony. (See People v. Ramirez (2006) 143 Cal.App.4th 1512, 1526-1527 [erroneous admission of fresh-complaint evidence without restriction was harmless when victim testified about the rape at trial and jury had the opportunity to hear directly from victim and to judge her credibility]; see also People v. Manning (2008) 165 Cal.App.4th 870, 880-881.)
II. Substantial Evidence
Minor contends there was insufficient evidence to support the juvenile court's finding that the lewd or lascivious acts were committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. Minor further contends that there was insufficient evidence to sustain the petition as to the number and types of lewd or lascivious acts committed. We disagree.
" 'The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials.' " (In re Cesar V. (2011) 192 Cal.App.4th 989, 994.) " 'Under this standard, the critical inquiry is "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] An appellate court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (Ibid., first italics added.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing from it. (In re James D. (1981) 116 Cal.App.3d 810, 813-814.)
A person violates section 288, subdivision (b), if he commits a lewd or lascivious act upon a child under the age of 14 by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (§ 288, subd. (b).) The "force" required to support the sexual abuse charges must be " 'substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' " (People v. Soto (2011) 51 Cal.4th 229, 242; People v. Neel (1993) 19 Cal.App.4th 1784, 1790.) "According to the majority of courts, this includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves." (People v. Alvarez (2009) 178 Cal.App.4th 999, 1005; see People v. Bolander (1994) 23 Cal.App.4th 155, 159 [the defendant's acts of "inhibiting [the victim] from pulling his shorts back up, bending [the victim] over, and pulling [the victim] towards him constitute force within the meaning of subdivision (b)" of § 288], Neel, at p. 1790 ["[the] defendant's acts of forcing the victim's head down on his penis when she tried to pull away and grabbing her wrist, placing her hand on his penis, and then 'making it go up and down' " constituted forcible lewd conduct].)
Bolander and Neel were both disapproved on another ground in Soto, supra, 51 Cal.4th at page 248, footnote 12, where the Soto court held that consent of the victim is not a defense to a charge of lewd or lascivious acts on a child by force, violence, duress, menace or fear.
Viewing the record in the light most favorable to the prosecution, we conclude there was substantial evidence to support the juvenile court's determination that minor committed two forcible lewd and lascivious acts upon N.I. There is evidence in the record that minor got into the shower with N.I. when she was nine years old and he was 13 years old, forced her forward and bent her over, told her to shut up, forcibly inserted his penis into her anus or vagina from behind, refused to stop when she asked him to do so, and forcibly held the back area of her body so she could not move. There is also evidence that minor inserted his penis into her vagina from the front, and then pushed her down and tried to force his penis into her mouth. The record further discloses that N.I. pushed minor away, ran to her sister's room, locked the door, and cried until her mother got home. Accordingly, there is sufficient evidence to uphold the juvenile court's findings that minor engaged in forcible lewd and lascivious acts upon N.I.
We reject minor's contention that there was insufficient evidence to sustain the petition because the evidence was plagued by inconsistency, improbability, uncertainty, and retraction. Our Supreme Court has held: "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) While a reviewing court will not uphold a judgment or verdict based upon evidence that is inherently improbable, testimony that merely discloses unusual circumstances does not come within that category. (People v. Barnes (1986) 42 Cal.3d 284, 306.) Evidence is inherently improbable when it is either physically impossible or its falsity is apparent without resorting to inferences or deductions. (Ibid.) " 'Except in . . . rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the jury's resolution.' " (People v. Hovarter (2008) 44 Cal.4th 983, 996.)
In this case, minor contends that there are numerous inconsistencies in N.I.'s testimony and in the accounts of the alleged sexual assault as reported to Lopez, Deputy Lickiss, and Detective Waters. To the extent there are discrepancies in the testimony, those discrepancies are not examples of inherent improbability. (See People v. Ennis (2010) 190 Cal.App.4th 721, 725 ["The determination of inherent improbability must be made without resort to inference or deduction, and thus cannot be established by comparing the challenged testimony to other evidence in the case"]; People v. Merrill (1951) 104 Cal.App.2d 257, 263 ["contradictions or inconsistencies in the testimony of a witness do not render it inherently improbable"].) Further, although minor characterizes N.I.'s testimony as inherently improbable due to "several crucial facts," in actuality he asks this court to go beyond its province by considering the credibility of the witnesses and reweighing the evidence. For example, he contends that N.I.'s testimony was unbelievable because she did not report the alleged sexual assault until years after it occurred and disclosed her motives for lying about the alleged assault at trial. Minor further contends N.I.'s testimony was unbelievable because she never cried out during the sexual assault, there was no physical evidence of an assault, and her mother did not observe anything "untoward" with her on the evening of the alleged assault or in the days that followed. These arguments boil down to credibility attacks. As such, they cannot be the basis for a reversal of the judgment.
Minor asserts that "[a]nother aspect of N.I.'s story raises a question of the physical impossibility of some of her testimony"; specifically, N.I.'s testimony that she pushed on his shoulders while she was bent over and he was behind her. While N.I. testified that she pushed on her brother's shoulder when he was behind her, she later clarified that she was unable to successfully push on his shoulders from that position. Minor fails to explain how this testimony justifies reversal. --------
III. Lesser Included Offenses
The juvenile court sustained all four counts of the amended petition. Minor argues that the two sustained violations of lewd or lascivious conduct under section 288, subdivision (a), must be dismissed if substantial evidence supports the juvenile court's determination to sustain two violations of forcible lewd or lascivious conduct under section 288, subdivision (b). The People concede the point, and given the alternative nature of the charging, we accept the People's concession.
Section 288, subdivision (a), is a lesser or necessarily included offense of section 288, subdivision (b). (People v. Ward (1986) 188 Cal.App.3d 459, 472.) The latter includes the additional element of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (§ 288, subd. (b).) In this case, the juvenile court found true two counts of lewd or lascivious acts (§ 288, subd. (a)) and two counts of forcible lewd or lascivious acts (§ 288, subd. (b)) based on the same incident. Since lewd or lascivious conduct is a lesser included offense of forcible lewd or lascivious conduct, both true findings cannot stand. (See People v. Ortega (1998) 19 Cal.4th 686, 692, overruled on another ground by People v. Reed (2006) 38 Cal.4th 1224, 1228-1231.) Accordingly, we will reverse the true findings as to the lewd or lascivious acts counts (§ 288, subd. (a)) and dismiss the allegations as to those counts (see People v. Moran (1970) 1 Cal.3d 755, 763 [if the evidence supports the conviction as to the greater offense, the conviction on the lesser included offense must be reversed]).
DISPOSITION
The juvenile court's true findings on the lewd or lascivious acts counts (§ 288, subd. (a)) are reversed and the allegations as to those counts are dismissed. In all other respects, we affirm the juvenile court's findings and orders.
MURRAY, J. We concur: RAYE, P. J. BLEASE, J.