People v. Sanchez CA4/3

Filed 6/29/15 P. v. Sanchez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049577

v. (Super. Ct. No. 10CF2694)

ROLANDO TORRES SANCHEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed in part and reversed in part with directions. Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found defendant Rolando Torres Sanchez guilty of committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); all further statutory references are to this code; count one), continuous sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a); count two), and sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b); count three). The trial court sentenced defendant to prison for 15 years to life on count three, plus a 12-year consecutive term on count two and a 6-year concurrent term on count one. On appeal, defendant argues that since counts two and three were alleged to have occurred during the same time period, his conviction on the latter charge must be reversed because it violated section 288.5, subdivision (c). He also claims the trial court miscalculated his presentence custody credits. The Attorney General concedes the second point, but argues defendant forfeited his right to attack the conviction on count three by failing to demur to the information. Since defendant does not challenge his conviction on count one, we affirm as to that charge. We agree the trial court miscalculated defendant’s custody credits and also concur with his claim that subdivision (c) of section 288.5 prohibited him from being convicted on both counts two and three. But since that statute allows the prosecution to charge both crimes in the alternative we disagree with his proposed remedy. We shall remand the matter to the superior court with directions to vacate the conviction for violating section 288.5, subdivision (a) (count two) and to resentence defendant.