People v. Lapham CA4/3

Filed 1/26/21 P. v. Lapham 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G058251 Plaintiff and Respondent, (Super. Ct. No. 17HF0040) v. OPINION RICHARD WILLIAM LAPHAM,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Julian W. Bailey, Judge. Affirmed. Law Office of Edward M. Robinson, Edward M. Robinson, and Rachael A. Robinson for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury convicted Richard William Lapham of several sexual offenses against his granddaughter, R.C., including continuous sexual abuse of a child (count 1; 1 Pen. Code, § 288.5, subd. (a)), oral copulation (count 5; § 288a, subd. (c)(1)), and sexual 2 penetration by a foreign object (count 7; § 289, subd. (j)). The jury found Lapham committed all the offenses when his granddaughter was less than 14 years old. The trial court had earlier dismissed on the prosecutor’s motion oral copulation and sexual penetration counts allegedly committed when R.C. was 10 years old or younger (counts 2 and 3). At sentencing, the court also dismissed pursuant to section 1385 additional counts on which the jury had convicted Lapham for a lewd and lascivious act (count 4; § 288, subd. (a)) and oral copulation (count 6; § 288a, subd. (c)(1)). The trial court sentenced Lapham to 20 years in prison; 16 years on count 1, two years consecutive on count 5, and another two years consecutive on count 7. Lapham contends the trial court erred in failing to grant his new trial motion (§ 1181). His motion sought acquittal on grounds that the proof at trial on count 1 did not align with the dates between which he was alleged to have committed continuous sexual abuse. Lapham argues, as he did below, that R.C.’s testimony could only be understood to indicate the abuse began after the dates alleged for count 1. Lapham also asserts that the conduct underlying count 1 necessarily included the sexual penetration alleged in count 7, making it duplicative and requiring dismissal. As we explain, these contentions are without merit, as is the belated request at the end of respondent’s brief for us to overturn the trial court’s dismissal of counts 4 and 6, which respondent did not appeal.