OPINION

SPARKS, J.

In this appeal we consider a host of questions arising from the now familiar case in which the evidence establishes more crimes than were charged. Here defendant Clyde D. Gordon was convicted of one count of sodomy with a person under 16 years of age by a person over the age of 21 (Pen. Code, § 286, subd. (b)(2)), and three counts of lewd and lascivious conduct with a child under 14 years of age (Pen. Code, § 288, subd. (a)). Sentenced to state prison for concurrent terms of five years on each of the four felonies, he appeals. On appeal defendant contends: (1) the sodomy count was barred by the statute of limitations; (2) as to the sodomy count and one count of lewd and lascivious conduct, the prosecution did not elect which acts it was relying upon to convict and, further, as to the sodomy count, the trial court failed to instruct on its own motion that the jury must unanimously agree on the specific act forming the basis of the verdict; (3) as to the sodomy count and one count of lewd and lascivious conduct, instructing the jury with CALJIC No. 4.71 constituted prejudicial error; (4) the sodomy conviction barred a concomitant conviction for a lewd and lascivious act potentially based on the same act; (5) defendant was denied effective assistance of counsel based on his attorney's failure to force the prosecution to elect specific acts, to object to introduction of evidence of uncharged sex offenses, and to request limiting instructions; and (6) the trial court erred in failing to instruct, again on its own motion, on appropriate lesser included offenses. We shall reverse the sodomy conviction and affirm the remainder of the judgment.

STATEMENT OF THE CASE

By an amended information filed on February 17, 1983, defendant was charged with five felony counts: one count charged sodomy on a female child under the age of 16, alleged to have occurred from on or about January 1, 1979, through November 30, 1980 (Pen. Code, § 286, subd. (b)(2), count I); and the remaining four counts charged lewd and lascivious conduct with a child under the age of 14, alleged to have occurred from on or about June 28, 1978, through November 30, 1980 (count II), on or about December 1 through December 22, 1978 (count III), on or about December 22, 1978 (count IV), and on or about July 1 through August 30, 1979 (count V), respectively. (Pen. Code, § 288, subd. (a).)

Following a jury trial, the jury returned verdicts finding defendant guilty of the sodomy charge (count I) and three counts of lewd and lascivious conduct (counts II through IV) and not guilty of one count of lewd and lascivious conduct (count V). Probation was denied and defendant was sentenced to state prison. Defendant filed a notice of appeal on the day he was sentenced.

Subsequently, the sentence was recalled pursuant to section 1170, subdivision (d), and defendant was resentenced to a total of five years: the upper term of three years on count I and the upper term of five years on counts II, III and IV, all terms to be served concurrently. He was also given credit for time served and good time/work time. Defendant timely filed a second notice of appeal and the two appeals were consolidated by stipulation.

STATEMENT OF FACTS A. Counts I (Sodomy) and II (Lewd and Lascivious Conduct)

Marla M., who was nine years old when she testified at trial, was living during the period in question in Little Valley, California with her mother Gloria Gordon, then Gloria Ruiz, and Robert Ruiz, her mother's husband. She was then five or six years old and in kindergarten and first grade. Defendant and his family moved to Little Valley in December 1977. Defendant, who was later to become Marla's stepgrandfather, and his wife Willa lived just up the street from Marla and they were paid to babysit Marla on a regular basis. Both he and his wife babysat Marla after school and on weekends. Defendant's sexual misconduct with Marla began at the earliest time in the beginning of 1978. Marla testified to general, unspecified instances as well as more specific instances when defendant sexually touched her when she lived in Little Valley.

The general instances were these: (1) When Marla rode with defendant in his pickup truck, defendant would make Marla sit next to him and would rub her thighs with his hand. (2) From kindergarten to about third grade, defendant touched Marla "lots of times;" "there's so many times he did it, I can't remember them all." These touchings were done in "different ways sometimes." (3) Defendant also touched Marla's bottom with his penis ("long thing") twice. (4) Defendant touched Marla's vagina (where she "pass[es] water") with his penis many times, at least more than five times.

Marla also recounted these specific instances: (1) When Marla was in either kindergarten or first grade, in 1978 to 1979, and while defendant and his wife were babysitting her, defendant took Marla into the tack room at his residence, took off her underpants and touched her vagina, chest, and "bottom" with his hands. Defendant also put his penis ("his long thing with the two round things") inside of her vagina. Marla thought Willa knew about the incident because Willa was just out in the garden when Marla yelled in protest. (2) On two other occasions defendant touched his penis to Marla's anus. On one occasion, date and place not specified, defendant tried to put his penis in her anus and she hollered and cried because it hurt. Defendant kept trying for a few minutes and then stopped. On the second occasion, Marla was camping with defendant and a man named Stan. Marla and defendant slept inside defendant's camper; Stan slept outside. One night defendant tried to put his penis inside her anus; it again hurt and Marla cried and hollered. Defendant told Marla that if she told anyone he would hurt her mother. She was afraid defendant would carry out the threat.

Marla's mother, Gloria, testified as a prosecution witness. Gloria married defendant's son, Richard Gordon, on August 4, 1979. All the events described by Marla occurred before this date. Marla first told her mother about defendant's conduct in November or December of 1980 when Gloria asked Marla if she would like to stay with defendant and Willa while she and Richard went to look for work. Marla stated she would not like that. When pressed for her reasons, she told Gloria what had been happening. Gloria confronted defendant later that evening. According to Gloria, defendant neither admitted nor denied the accusation, but instead turned to Marla and asked "Why did you tell your momma?" The next day, Gloria told her neighbors Barbara Hitchcock and Melissa Turner that defendant had sexually abused Marla. She did not go to the police because her husband Richard told her that if she put his father in jail she better file for divorce. She did not want to break up her marriage. Gloria consequently did not report the incidents to the police until March 1982. Later Gloria went to Oregon to avoid being subpoenaed because defendant's wife was pressuring her and because Marla did not want to testify. At one point, Gloria wrote a letter to defendant trying to get him to give her ownership of his truck or $500 and threatening him with prosecution.

According to Gloria, prior to her trip to Oregon with Marla and after charges were filed, defendant told Gloria he did not hurt any other little girls and was sorry for what had happened to Marla. He stated he would get psychiatric help.

B. Counts III and IV (Lewd and Lascivious Conduct)

Brandy W., who was eleven years old when she testified, was approximately seven years old when defendant and Willa babysat her and her brother. Approximately one week prior to December 22, 1978, the date of a friend's birthday party, Brandy was in defendant's backyard in Little Valley when defendant took her behind the barn during the daytime and stuck his hand down her pants and touched her vagina. Brandy was afraid and did not tell anyone what happened.

On another occasion, one night either two days before or after the other incident, Brandy accompanied defendant in his truck to get Willa a soda. Defendant turned off a private road (Skunk Hollow Road) in Little Valley, got out of the truck, opened the passenger door, told Brandy to lie down, pulled down her pants and touched or "stuck his penis in [her] vagina." Defendant told Brandy to tell Willa that they had just gone to a bar.

Brandy told her friend Candice about one or both incidents while she was at the party. Candice in turn told the mother of the child who was having the party. When Brandy was questioned by this woman, she remained silent. Brandy's mother, Barbara Hitchcock, was informed what happened the following day. Barbara initially did not call the police because it was "really hard to believe" and she thought "it would be better for her just to forget about it." However, she changed her mind sometime later when she saw defendant riding in his truck with a six-year-old mentally retarded girl.

C. Defense

Stahl and two others testified that the private road (Skunk Hollow Road) down which Brandy stated defendant drove his pickup before molesting her was virtually impassable during the winter.

Willa Gordon, defendant's wife, testified that when Gloria accused defendant of molesting Marla, he said he had never touched her. Later defendant told Gloria he had never touched Marla or any of the other girls and that he was sorry for "everything that was going on."

Defendant testified that he was 51 years old and had never molested Marla. He told Gloria he never molested her daughter or any other girls in Little Valley, and that he was "sorry . . . it was busting up her family. . . ." Defendant also said he was never alone with Brandy and never molested her. He related that he and Gloria had an argument regarding her use of his telephone and that Gloria stated, "I'll get even with you, Clyde Gordon." Defendant believes Gloria concocted the whole story.

D. Rebuttal

Evidence was presented that the first 200 yards or so of Skunk Hollow Road is passable during the winter and that in December 1978 the entire road was hard and frozen.

DISCUSSION I

Defendant correctly points out that Marla testified to two incidents of sodomy and that she also testified that all the sexual incidents involving defendant occurred before her mother married Richard Gordon on August 4, 1979. She testified as to one incident without specifying its location or date. On that unspecified occasion defendant tried to put his penis ("long thing") in her anus ("bottom") and it hurt; he "kept it on for a few minutes," and then stopped. According to Marla, a second incident of sodomy occurred on the camping trip. On that occasion defendant and Marla were inside the camper when defendant put or tried to put his penis in her anus. It was established that this camping trip took place in July 1979.

This statute of limitations contention first poses the question whether, for purposes of stopping the statute, the commencement of the prosecution should be measured from the date that the information was filed (§ 800, as amended by Stats. 1978, ch. 663, § 8, pp. 2133-2134) or from the earlier date when the arrest warrant was issued. (§ 800, as amended by Stats. 1981, ch. 1017, § 1, p. 3925.) As we shall see, the answer depends upon whether the sodomy offense was committed in 1978 or in 1979.

During the years 1978, 1979 and 1980 the statute of limitations for the crime of sodomy was three years. Penal Code section 800 then provided that "[a]n indictment for any felony, [except for crimes not relevant here], shall be found, an information filed, or case certified to the superior court within three years after its commission." (Stats. 1975, ch. 1047, § 1, p. 2466; Stats. 1978, ch. 663, § 8, pp. 2133-2134.) (1) (See fn. 6.) The original information was filed on February 16, 1983, and was amended the next day. As amended, the information alleged that the sodomy occurred "from on or about the 1st day of January, 1979, through November 30, 1980." If the crime of sodomy had been committed on January 1, 1979, the statute of limitations expired three years later on January 1, 1982; if on November 30, 1980, then it expired on November 30, 1983. Thus, the range of the limitation period for the crime as charged was from January 1, 1982 to November 30, 1983. If, on the other hand, the crime had been committed in 1978, a time outside of the dates alleged in the information, then the statute would have expired three years after the date of its commission.

Effective January 1, 1982, the limitations statute was again amended. Section 800, subdivision (a) again prescribed a three-year limitations period for section 286, subdivision (b) violations. Under this amendment, the running of the statute stops when an arrest warrant is issued rather than when the information is filed. To the extent that the evidence showed that the sodomy occurred during the charged period beginning on January 1, 1979, the amendment applies to this case because it was enacted before the old statutory period had expired. (2) In such a case, "[t]he matter is governed by the rule enunciated by Judge Learned Hand in Falter v. United States (2d Cir. 1928) 23 F.2d 420 . . . which upheld the right to prosecute within a period extended by an amendment to an existing statute if the amendment was adopted prior to the expiration of the original period of limitations. He stated, `But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.' [Citations]." ( People v. Eitzen (1974) 43 Cal.App.3d 253, 266-267 [ 117 Cal.Rptr. 772] ; accord, People v. Swinney (1975) 46 Cal.App.3d 332 [ 120 Cal.Rptr. 148]. See also Uelmen, Making Sense out of the California Criminal Statute of Limitations, supra, 15 Pacific L.J. at pp. 71-72.) The warrant for defendant's arrest was issued by the justice court on April 30, 1982, and for any sodomy committed on or after January 1, 1979, the statute stopped running on that date.

But to the extent that the evidence showed that an act of sodomy occurred in 1978, a time outside the period alleged in the information, the old statute must govern because it necessarily expired before the effective date of the new amendment. The statute of limitations for sodomy committed in 1978 expired three years later in 1981 and the amendment in question was not effective until January 1, 1982. The information was not filed until February 16, 1983, and hence any act of sodomy committed in 1978, more than three years before the filing of the information, was time barred. Thus whether the sodomy offense occurred in 1978 and the measurement is from its commission to the filing of the information and whether it occurred after January 1, 1979, but before April 30, 1979, and the measurement is from its commission to the date the warrant issued, the sodomy charge was still untimely. Because no date was given for the first incident described above, and because it could have occurred after January 1, 1978, the period when the sexual misconduct first began, or even after January 1, 1979, the beginning of the period designated in count I, but before April 30, 1979, three years prior to the date the arrest warrant was issued, the People have failed to prove that the crime could only have occurred inside the applicable three-year limitations period. (3) As Justice Peters noted for the Court of Appeal in People v. Allen (1941) 47 Cal.App.2d 735, 748 [ 118 P.2d 927], "[t]he fact that the statute of limitations is jurisdictional necessarily determines that a prosecution within the period specified is an essential element of the offense." It follows therefore that the burden is on the People to prove that the charged offense occurred within the period of limitations. ( People v. Mack (1959) 169 Cal.App.2d 825, 829 [ 338 P.2d 25].) (4) Here the prosecution proved two acts of sodomy, one possibly barred by the statute and the other not. In the absence of an appropriate instruction, that equivocal proof fails as a matter of law to overcome the prosecution's burden. Since it is impossible to determine whether the jury convicted defendant of an offense not shown to have been committed within the period of limitations, the conviction is fatally defective. As the Court of Appeal noted in a comparable situation in People v. Hefner (1981) 127 Cal.App.3d 88, 97 [ 179 Cal.Rptr. 336], "[w]e have no way to gauge the effect of this error. Since we cannot assume the jurors unanimously agreed on the act constituting the offense charged, we are unable to say a miscarriage of justice did not occur. ( People v. Gainer (1977) 19 Cal.3d 835, 854-855 [ 139 Cal.Rptr. 861, 566 P.2d 997, 97 A.L.R.3d 73].)" Accordingly, we are constrained to hold that the conviction based on count I was time barred and hence must be reversed.

II.

Defendant next contends that he was denied due process because the jury was not instructed which acts the prosecution was relying upon to prove counts I (sodomy) and II (lewd and lascivious act upon Marla). There are two facets to this asserted error: First, was the prosecution required to elect the particular act it was relying upon to make good the allegation in the information? Second, when the jury was presented with more than one factual basis which might constitute the crime charged, should it have been instructed along the lines of CALJIC No. 17.01 that it had to unanimously agree upon the commission of the same act or acts constituting the crime?

There has been a recent effluence of cases dealing with the problems arising when a violation of a criminal statute is charged and the evidence describes several acts, any one of which could constitute the crime charged. (See People v. Metheney (1984) 154 Cal.App.3d 555 [ 201 Cal.Rptr. 281]; People v. Dunnahoo (1984) 152 Cal.App.3d 561 [ 199 Cal.Rptr. 796]; and People v. Deletto (1983) 147 Cal.App.3d 458 [ 195 Cal.Rptr. 233] ), adding to an already long line of cases ( People v. Diedrich (1982) 31 Cal.3d 263 [ 182 Cal.Rptr. 354, 643 P.2d 971]; People v. Williams (1901) 133 Cal. 165 [ 65 P. 323]; People v. Castro (1901) 133 Cal. 11 [ 65 P. 13]; People v. Epps (1981) 122 Cal.App.3d 691 [ 176 Cal.Rptr. 332]; People v. Alva (1979) 90 Cal.App.3d 418 [ 153 Cal.Rptr. 644]; People v. Moreno (1973) 32 Cal.App.3d Supp. 1 [108 Cal.Rptr. 338].)

(5a) Emerging from this long line of cases is the so-called "either/or" rule: when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (See People v. Dunnahoo, supra, 152 Cal.App.3d at pp. 568-570, and cases cited therein including People v. Diedrich, supra, 31 Cal. 3d at pp. 280-281.)

Turning to this case, we note that while no election of a specific act was made, an instruction in the form of CALJIC No. 17.01 was given for the counts for lewd and lascivious conduct. That instruction, however, was not given for the sodomy charge contained in count I. The question whether a CALJIC No. 17.01 instruction cures a failure by the prosecution to elect a specific act has been answered in the affirmative in a long line of cases ( People v. Dunnahoo, supra, 152 Cal.App.3d at p. 568, and cases cited therein), which we choose to follow. Accordingly, we find no error relating to count II. (6) We turn next to the sodomy charge. As we have noted earlier, count I alleged the commission of the crime of sodomy between January 1, 1979, and November 30, 1980. As we have recited, Marla testified to two incidents of sodomy or attempted sodomy. Defendant made no request for an election and the trial court on its own did not require the prosecution to select a specific act and date. Moreover, as to this crime, the jury was not instructed in the language of CALJIC No. 17.01, or similar language, that in order to convict defendant of sodomy it must unanimously agree on a particular act. We consequently hold that the prosecution's failure to elect between the two acts testified to by minor, and arguably forming the basis of the sodomy allegation in count I, and the court's failure to instruct, sua sponte, on the unanimity requirement with respect to a particular act constitute error. ( People v. Diedrich, supra, 31 Cal.3d at p. 280; People v. Dunnahoo, supra, 152 Cal.App.3d at p. 570; People v. Madden (1981) 116 Cal.App.3d 212, at pp. 218-219 [ 171 Cal.Rptr. 897].)

We note also that the "continuous course of conduct" exception to the "either/or" rule is not applicable here. (5b) This exception arises when the criminal acts are so closely connected that they form part of one and the same transaction, and thus one offense. ( People v. Mota (1981) 115 Cal.App.3d 227, 233 [ 171 Cal.Rptr. 212].) Thus, "[s]eparate acts may also result in but one crime if they occur within a relatively short time span. . . ." ( People v. Epps, supra, 122 Cal.App.3d at p. 702, citation omitted.) In this case, there is absolutely no evidence concerning the timing of the two acts of sodomy, except that they allegedly occurred between 1978 and August 1979 and that one may have occurred during a camping trip in July 1979.

(7) Does this error require reversal? The Chapman standard (whether the error was harmless beyond a reasonable doubt [ Chapman v. California (1967) 386 U.S. 18, 24 (17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065)]), it has been held, must be applied when error is based on failure to instruct with CALJIC No. 17.01, or its equivalent. ( People v. Metheney, supra, 154 Cal.App.3d at pp. 563-564; People v. Dunnahoo, supra, 152 Cal.App.3d at p. 574; People v. Deletto, supra, 147 Cal.App.3d at pp. 471-472.)

In Diedrich, the Supreme Court, after holding that the trial court's refusal to give CALJIC No. 17.01 constituted error, considered the prejudicial effect of the error: "The next question is whether the error was prejudicial. We feel bound to hold that it was. This is not a case where the jury's verdict implies that it did not believe the only defense offered. Diedrich's defenses differed: As far as the Jolly Fox offer is concerned, it consisted of a simple denial. The Remington transactions were `explained.' Having in mind that the proof of the Jolly Fox offer depended, essentially, on the testimony of a single immunized witness and that the proof of bribery via the Remington transaction was somewhat circumstantial, we feel bound to conclude that the error was prejudicial." ( People v. Diedrich, supra, 31 Cal.3d at pp. 282-283, italics added.) Under the Diedrich analysis, the test for harmless error is whether the case is one in which the jury's verdict necessarily implies that it did not believe the only defense offered. (See People v. Metheney, supra, 154 Cal.App.3d at p. 564; People v. Deletto, supra, 147 Cal.App.3d at p. 466.)

In the present case, we cannot say the error was harmless. Marla testified to two distinct and distinguishable acts: (1) The first act, for which no date was given, involved a sodomy or attempted sodomy that lasted several minutes and hurt. (2) The second act occurred during a camping trip, fixed by another witness in July 1979; there was no indication as to the length of time of the sodomous conduct, but it hurt. Defendant's common defense to both the first and second acts was a general denial that he ever molested Marla and an assertion by defendant that the whole story had been concocted (namely because Gloria was trying to blackmail defendant; was being given the choice between testifying against defendant or facing criminal charges for welfare fraud; and had an argument with defendant concerning her use of his telephone during which Gloria said "I'll get even with you, Clyde Gordon."). However, with regard to the camping trip incident, the defense also presented a second defense by introducing evidence that defendant slept outside the camper and did not have the opportunity to be alone with Marla in the camper during the entire trip. Moreover, we note that the first act was distinguishable from the second act insofar as Marla testified that defendant's first act lasted several minutes while no duration was assigned to the second act. This testimony could have been crucial on the issue of penetration. (See § 287.)

Because some of the jurors may have believed the lack of opportunity defense to the second act, and other jurors not, and because some jurors may have believed there was penetration with respect to the first act of sodomy but not the second, and others not, we must conclude, there being more than one defense offered, that the jury verdict does not establish beyond a reasonable doubt that the jury rejected the same or only defense offered. (See People v. Epps, supra, 122 Cal.App.3d at p. 695 [failure to give CALJIC No. 17.01 required reversal where defendant, convicted of one count of child molesting (Pen. Code, § 647a), had various explanations for different acts of alleged molestation]; People v. Alva, supra, 90 Cal.App.3d at pp. 421-423 [defendant charged with one count of incest (Pen. Code, § 285) and the minor testified to acts of intercourse regularly between February and July and the minor's brother, who provided defense testimony, moved into the house in May].) Moreover, because the jury could have accepted one of the defenses and not another, e.g., no penetration on the second occasion, there is no basis in reason for the inference that the jury must have believed beyond a reasonable doubt that defendant committed both acts of sodomy. (Cf. People v. Deletto, supra, 147 Cal.App.3d at p. 473 [failure to give CALJIC No. 17.01 held harmless error where both acts described by the minor clearly constituted unlawful acts of oral copulation].) We conclude that as to the sodomy count (count I) the trial court committed reversible error by failing to instruct the jury using CALJIC No. 17.01 or an equivalent. Thus, even if we had not concluded that the sodomy count was barred by the statute of limitations, we would be compelled to reverse that count for this instructional error.

III

"Where a defendant is charged in a single count, and the evidence shows more than one criminal act of the kind alleged, it is error to give CALJIC No. 4.71 because it does not require the jury to focus on a specific criminal act and to convict a defendant of that act beyond a reasonable doubt. The appropriate instruction, CALJIC No. 4.71.5, plays the same role as CALJIC No. 17.01 to the extent it requires the jury to agree beyond a reasonable doubt defendant committed the same act. . . . CALJIC No. 4.71 hypothetically [would] allow the jury to reach a nonunanimous verdict." ( People v. Deletto, supra, 147 Cal.App.3d at pp. 474-475; citations omitted.)

Nevertheless, we conclude that the error was cured here as to count II because the court also instructed the jury in the language of CALJIC No. 17.01. CALJIC Nos. 4.71 and 17.01, read in conjunction, are not inconsistent: they instruct a jury confronted with an "on or about" allegation that while it need not find that the crime was committed on the precise date alleged (CALJIC No. 4.71), it must nonetheless unanimously agree that defendant committed the same act. (CALJIC No. 17.01.) Combined, these two instructions adequately instruct the jury on the point.

IV

(9) In establishing ineffective assistance of counsel, the burden is on the defendant to show that trial counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate, which failure resulted in the withdrawal of a potentially meritorious defense. ( People v. Pope (1979) 23 Cal.3d 412, 425 [ 152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) This test has been expanded under People v. Fosselman (1983) 33 Cal.3d 572, 584 [ 189 Cal.Rptr. 855, 659 P.2d 1144], to add that a defendant may also establish incompetence of counsel by proving that counsel failed to perform with reasonable competence and that it is reasonably probable that a more favorable result would have been forthcoming in the absence of counsel's alleged failings.

(10) At the outset, our review of trial counsel's competency is limited to the record before us because defendant has not filed a corresponding petition for habeas corpus which could admit evidence outside the record on this issue. (See People v. Pope, supra, 23 Cal.3d at pp. 426-427, fn. 17; People v. Apodaca (1978) 76 Cal.App.3d 479, 489, fn. 3 [ 142 Cal.Rptr. 830] .)

Failure to move for election.

The election issue involves only counts I and II. Since count I has already been reversed, we once again consider the issue only as to count II. To resolve the issue with respect to that count, we quote People v. Dunnahoo, supra, 152 Cal.App.3d at page 576, where the court addressed a nearly identical argument: "[S]ince Dunnahoo's only legitimate defense was one of credibility, failure of his counsel to force an election does not amount to ineffective counsel. The prosecution witnesses' credibility was tested by thorough cross-examination. Pursuant to predetermined trial strategy, Dunnahoo took the stand and also contradicted their testimony. The jury was given the CALJIC No. 17.01 unanimity instruction. Thus, on this issue, his trial counsel acted in a manner expected of a reasonably competent attorney."

(11) Here, as in Dunnahoo, defendant's primary defense, at least on count II, was one of credibility. Victim Marla and her mother were cross-examined by defense counsel. Defendant took the stand and generally denied the accusations. Finally, the jury was instructed in the words of CALJIC No. 17.01. Since the posture of the case required the jury either to find that all of the lewd acts occurred or none of them did, no useful purpose would have been served by attempting to force the prosecution to an election. We conclude, as did the Dunnahoo court, that defense counsel was not incompetent for failing to move for an election.

Admission of uncharged offenses.

There are three hurdles between defendant and a successful claim of ineffective assistance of counsel based on his counsel's failure to object to the admission of evidence of uncharged acts: (1) the offenses must be uncharged; (2) the evidence must be inadmissible; and (3) it must be reasonably probable a more favorable result would have resulted in the absence of that evidence. Defendant can clear only the first two hurdles.

(12) First, an act is uncharged if it falls outside the accusatory pleading. This can happen when the act testified to either involves a different actus reus (say for robbery or arson) or occurred at a time different than the charged offense. In the instant case, acts not fixed in time by Marla arguably fell outside the information. These included, in relation to count I (sodomy), an act of sodomy which was not fixed within the time period alleged in count I and, in relation to count II (lewd and lascivious conduct), incidents when defendant rubbed Marla's thighs while driving in his truck, the numerous touchings, including sexual intercourse occurring over a period of time greater than that described in count II. Because the record reveals the admission of evidence of possibly uncharged acts, we turn to the question of their admissibility.

After People v. Tassell (1984) 36 Cal.3d 77 [ 201 Cal.Rptr. 567, 679 P.2d 1], we must conclude that the evidence of these arguably uncharged offenses was inadmissible. Evidence Code section 1101 provides: "(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct is inadmissible when offered to prove his conduct) on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."

In Tassell, the Supreme Court dealt with a defendant who was charged with forcible rape and forcible oral copulation on a single victim. Defendant admitted the intercourse and oral copulation but denied the use of force. The prosecution produced two other females who testified to having been forcibly raped by defendant and forced to orally copulate him on occasions prior to the charged crimes. A divided Supreme Court found error, albeit nonprejudicial, in the admission of the evidence concerning the two uncharged crimes. The reasoning of the court was that since neither defendant's identity nor his intent to have intercourse with the victim was in dispute, the evidence of the other crimes was irrelevant to any "contested issue" in the case. ( Tassell, supra, 36 Cal.3d at p. 88, fn. 7 and p. 89.) (13) Because neither identity nor intent was an issue in this case, we must also conclude, like Tassell, that evidence of any uncharged crimes was inadmissible. The defense here was not that Marla mistook defendant for another person or that the charged offenses, if believed by the jury, were committed with innocent intent. The evidence was relevant only to defendant's disposition to act and therefore clearly contrary to Evidence Code section 1101, subdivision (a).

Even granting that reasonably competent counsel would have objected to introduction of the evidence of the undated crimes on the ground that they constituted uncharged acts, we conclude defendant's claim of ineffective assistance of counsel must fail because he has not proven that it is reasonably probable a determination more favorable to him would have resulted in the absence of counsel's failings. ( People v. Fosselman, supra, 33 Cal.3d at p. 584; People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243].) Since the conviction based on count I is reversed on other grounds, we apply the Watson standard to counts II, III and IV only.

As to count II, alleging a lewd and lascivious act on Marla, she testified as to a specific act of touching and sexual intercourse occurring in defendant's tack room and within the period, June 1978 through November 1980, alleged in count II. This was a charged act. In light of defendant's credibility defense, nothing convinces us that the jury would have returned a more favorable verdict on count II, i.e., not guilty, in the absence of evidence of unspecified touching and sexual intercourse.

As to counts III and IV, alleging lewd and lascivious acts on Brandy W., we review the evidence against and for defendant. Brandy testified that approximately a week prior to December 22, 1978, defendant took her behind a barn on his property and stuck his hand down her pants and touched her vagina. Also, either two days before or after the above described incident, defendant drove Brandy down a private road and had sexual intercourse with her in his truck. Defendant offered evidence that the private road was impassable in the winter, which evidence was rebutted by the prosecution. The issue was essentially one of credibility, defendant's word against Brandy's, and the jury resolved it in Brandy's favor. We cannot say that in the absence of the contested evidence there is a reasonable probability that a result more favorable to defendant would have been reached.

Limiting instructions.

Defendant argues that assuming the prosecutor had elected the specific acts it was relying upon in counts I and II and could show a legitimate purpose for introducing one or more uncharged acts, defense counsel would have been under a duty to request appropriate limiting instructions depending on the prosecutor's theory. (For example, see CALJIC No. 2.50 (evidence of other offenses for particular limited purpose); No. 10.35 (evidence of lewd acts on same child to show intent); No. 10.54 (evidence of uncharged sodomy to show disposition or intent).)

Because we have concluded that the evidence of uncharged acts was subject to objection and was inadmissible, we need not address the further contention that defendant's counsel erred in not requesting limiting instructions. Limiting instructions would not have cured counsel's failure to object to the evidence. As discussed above, counsel's failure to object, however, did not constitute ineffective assistance of counsel because the mistake by counsel was harmless.

V

Finally, defendant contends that the trial court erred in failing to instruct on lesser included offenses on its own motion. We need only discuss this contention with respect to counts II, III and IV. On those counts, we reject defendant's argument.

(14) In People v. Wickersham (1982) 32 Cal.3d 307 [ 185 Cal.Rptr. 436, 650 P.2d 311], the Supreme Court discussed generally the obligation of trial courts to instruct, sua sponte, on lesser included offenses and defenses: "`"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. . . .' In People v. Flannel (1979) 25 Cal.3d 668, 684-685, footnote 12 [ 160 Cal.Rptr. 84, 603 P.2d 1], the lead opinion . . . stated that the court need only give the instruction if the accused proffers evidence sufficient to `deserve consideration by the jury, i.e., "evidence from which a jury composed of reasonable men could have concluded"' that the particular facts underlying the instruction did exist. . . . [¶] Flannel did not directly discuss the standard to be utilized in determining when the court has a duty to instruct sua sponte on necessarily included offenses. However, logic would seem to require that the same standard should generally apply. The trial court is not obligated to instruct sua sponte on necessarily included offenses unless the evidence would justify a conviction of such offenses." ( Id., at pp. 323-325; citations omitted.)

On count II, defendant urges that the trial court erred in failing to instruct, sua sponte, that attempted sodomy, sodomy, unlawful sexual intercourse and misdemeanor child molestation are lesser offenses included within the crime of lewd and lascivious conduct. (§ 288, subd. (a).) Strictly speaking, neither sodomy nor unlawful sexual intercourse are lesser included offenses of the crime of lewd and lascivious conduct. (15) As the Supreme Court explained in People v. Lohbauer (1981) 29 Cal.3d 364, 369 [ 173 Cal.Rptr. 453, 627 P.2d 183], when the accusatory pleading does not otherwise give notice of the lesser, the test of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. (16a) Obviously one can commit a lewd act without necessarily also committing sodomy or unlawful sexual intercourse. Both of these two crimes require penetration while lewd conduct does not. (§§ 261.5; 287.) It is also true that one can commit an attempted sodomy without also necessarily violating section 288, as when the attempt is interrupted before any lewd or lascivious touching has yet occurred. Attempted sodomy is therefore also not an included offense of the crime of lewd conduct. (See People v. Nicholson (1979) 98 Cal.App.3d 617, 623-624 [ 159 Cal.Rptr. 766] .)

(17) It is true that, by statutory definition, one can violate section 288 by committing "any lewd or lascivious actincluding any of the acts constituting other crimes provided for in Part 1 of this code. . . ." (§ 288, subd. (a); underscoring added.) This language, however, simply means that it is not a defense to a prosecution for lewd conduct to show that defendant also committed some other sexual crime in the process of violating section 288. ( People v. Nicholson, supra, 98 Cal.App.3d at pp. 624-625.) Thus, an accused can violate section 288 by committing an act of unlawful sexual intercourse or sodomy. The statutory language, however, does not mean that those crimes are necessarily lesser included offenses requiring an appropriate instruction on lesser offenses. Obviously, the jury should not be instructed that if they are not satisfied beyond a reasonable doubt that defendant is guilty of lewd and lascivious conduct, it may convict him of lesser offense of sodomy. If defendant committed an act of sodomy, he simultaneously also committed a lewd act and he should therefore be convicted of the charged crime of lewd and lascivious conduct in violation of section 288. As the Nicholson court noted, this "language has led some courts to state that the crime of statutory rape or unlawful sexual intercourse is `necessarily included' under the provisions of section 288. [Citations.] The usage is confusing at best and should be avoided." ( Id., at p. 625, fn. 4.) What this section does mean is that while a single act of intercourse may violate both section 261.5 and 288, defendant cannot be punished for both crimes. (§ 654.) The double punishment issue is analytically distinct from the question of lesser included offenses and does not involve any determination by the jury. (16b) In short, the trial court did not err in failing to instruct on its own motion that attempted sodomy, sodomy or unlawful sexual intercourse were lesser included offenses within the crime of lewd and lascivious conduct charged in Count II.

(18) Misdemeanor child molestation (§ 647a), however, is a lesser included offense of section 288. ( People v. Poon (1981) 125 Cal.App.3d 55, 80 [178 Cal.Rptr. 375]; People v. La Fontaine (1978) 79 Cal.App.3d 176, 183 [ 144 Cal.Rptr. 729].) However, no instruction on the lesser offense of child molestation was required in this case because if defendant was guilty at all, he was guilty of the greater offense. ( People v. Wickersham, supra, 32 Cal.3d at pp. 323-324; People v. Reeves (1980) 105 Cal.App.3d 444, 453-454 [ 164 Cal.Rptr. 426].) Here defendant was either innocent of the charge under section 288 (i.e., the jury believed his word) or he was guilty of of that charge (i.e., the jury believed Marla). We further note that the giving of an instruction on misdemeanor child molestation, when not requested by the defense, would have been inconsistent with defendant's defense, which was a complete denial of committing any sexually related acts upon Marla. For both of these reasons, we hold that the court did not err in failing to instruct, sua sponte, on the lesser offense of child molestation.

Counts III and IV allege lewd and lascivious acts on Brandy W. in violation of section 288. Count III alleges a violation "on or about December 1 through 22, 1978;" count IV a violation "on or about December 22, 1978." At trial, Brandy testified to two incidents involving defendant and occurring within two days of one another: First, defendant took her behind a barn and put his hand down her pants and touched her vagina; second, defendant drove her to a private road in his pickup truck, had her lie down on the seat, pulled down her pants and "stuck his penis in [her] vagina." Because of the manner of charging and Brandy's uncertainty as to which incident occurred first, it was impossible for the jury to determine which count was based on the alleged touching and which count was based on the alleged sexual intercourse. We likewise cannot distinguish between the counts and so, for reference purposes, will refer to them separately as the "touching count" and the "sexual intercourse count."

As to the "sexual intercourse count," we have already noted that unlawful sexual intercourse (§ 261.5) is not a lesser offense necessarily included within section 288. The trial court consequently did not err by declining to instruct the jury on its own motion on that crime as a lesser included offense.

On the "touching count," defendant urges that the trial court erred in failing to instruct, sua sponte, on misdemeanor child molestation. Brandy testified that defendant escorted her behind the barn, reached his hand down her pants, and touched her vagina. Defendant simply denied doing the act. For the same reasons we rejected this contention as it related to count II, we again reject it on counts III and IV.

CONCLUSION

The judgment of conviction for sodomy in violation of section 286, subdivision (b)(2) as charged in count I of the amended information is reversed with directions to the trial court to dismiss this count. The trial court is further directed to prepare and forward an amended abstract of judgment to the Department of Corrections reflecting this dismissal. In all other respects, the judgment is affirmed.

Regan, Acting P.J., concurred.