People v. Valdez

California Court of Appeal Mar 9, 1994 No. B074847Published

Before: Gates

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Holding. The court held that a defendant may be charged with and convicted of both continuous sexual abuse of a child under Penal Code section 288.5 and specific lewd acts under section 288, provided the latter are charged in the alternative and the sentences for the lesser offenses are stayed. The court further held that the trial court did not err in its sentencing factors for the upper term.

Issues

Whether Penal Code section 288.5 prohibits the prosecution of other felony sex offenses involving the same victim during the same time period.
Whether the trial court relied on impermissible factors in imposing the upper term for the section 288.5 conviction.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Subdivision (c) of section 288.5 explicitly permits such alternative charges.”

“Further, the individual crimes proscribed by section 288, having different elements than does section 288.5, are not lesser offenses necessarily included therein.”

“In any event, in the present instance, the permanent staying of the section 288 offenses precludes appellant suffering any additional penal consequences therefrom in the future.”

Opinion

GATES, Acting P. J.

Defendant German Maldonado Valdez appeals from the judgment entered following a jury trial that resulted in his conviction for

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continuous sex abuse of a child under the age of fourteen (count 1, Pen. Code, § 288.5)

and five lewd acts with the same child (counts 2 to 6, § 288, subd. (a)) consisting of two acts of sodomy and three of oral copulation. It was also found that as to the section 288 violations, appellant had occupied a position of special trust (§ 1203.066, subd. (a)(9)) and his victim was under the age of 11 years. (§ 1203.066, subd. (a)(8).) He was sentenced to the high term of 16 years upon the section 288.5 charge. Consecutive terms of equal length were imposed for the section 288 violations, and then stayed in compliance with the mandate of section 654. He contends: “I. The convictions as to counts 2 through 6 must be reversed because Penal Code section 288.5 prohibits prosecution of any other felony sex offense occurring with the same victim during the same period of time as charged in the 288.5 prosecution. II. A remand for resentencing is required because the court relied on impermissible factors and factors not established by a preponderance of the evidence in imposing the upper term for violation of Penal Code section 288.5 continuous sexual abuse of a child.”

The sufficiency of the evidence to sustain appellant’s convictions is not challenged. It established that while residing with Michael and Rosemary A. between June 1, 1991, and May 8, 1992, appellant committed the acts alleged on their youngest son, commencing when the child was only seven years of age.

The contention that he was improperly prosecuted for both the continuous conduct crime, i.e. section 288.5, and the specific offenses is unmeritorious. Subdivision (c) of section 288.5 explicitly permits such alternative charges.

Further, the individual crimes proscribed by section 288, having different elements than does section 288.5, are not lesser offenses necessarily included therein. Consequently, appellant’s conviction on each count was

People v. Valdez

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