People v. Padilla CA5

Filed 1/28/14 P. v. Padilla CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F066336 Plaintiff and Respondent, (Super. Ct. No. CRM021362) v.

FRANCISCO GONZALEZ PADILLA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge. Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Detjen, Acting P.J., Franson, J. and Peña, J.

Defendant Francisco Gonzalez Padilla admitted molesting his daughter and was convicted by jury of aggravated sexual assault of a child (Pen. Code, § 269, subd. (a);1 count 1), forcible lewd act on a child (§ 288, subd. (b)(1); count 2), forcible sodomy (§ 288, subd. (a); count 3), and lewd acts on a child (§ 288, subd. (a); counts 4 & 5). He was sentenced to a total of 21 years to life in prison. On appeal, defendant contends (1) the forcible sodomy conviction must be reversed because forcible sodomy is a lesser included offense of aggravated sexual assault and (2) the term on count 5 must run concurrently to the term on count 1 because the trial court did not expressly state it was to run consecutively. We will reverse the conviction on count 3 and affirm in all other respects. DISCUSSION I. Lesser Included Offense Defendant asserts that his forcible sodomy conviction cannot stand because it is a necessarily included offense of aggravated sexual assault. The People concede, and we agree. In California, it has long been held that multiple convictions may not be based on necessarily included offenses. (People v. Pearson (1986) 42 Cal.3d 351, 355.) A defendant may not stand convicted of both a lesser included crime and the greater crime, based on a single act. (See People v. Montoya (2004) 33 Cal.4th 1031, 1034 [a judicially created exception to § 954 which permits multiple convictions for different offenses based on the same conduct].) When multiple convictions are based on necessarily included offenses, the conviction for the greater offense is controlling, and the conviction for the lesser offense must be reversed. (People v. Pearson, supra, at p. 355.) “There are two tests for determining whether one offense is necessarily included in another: the ‘elements’ test and the ‘accusatory pleading’ test. [Citation.]” (People v. 1 All statutory references are to the Penal Code unless otherwise noted.