Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF123584A, Gary T. Friedman, Judge.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P.J.
INTRODUCTION
Appellant Eddie Johnny Herrera sexually molested two young girls, S.P. and L.V. He was convicted after jury trial of continuous sexual abuse of a child (count 1), forcible oral copulation (count 2), and two counts of lewd or lascivious acts on a child under the age of 14 (counts 3 and 4). Multiple victim enhancement allegations attached to counts 3 and 4 were found true; a multiple victim enhancement allegation attached to count 2 was found not true. (Pen. Code, §§ 288.5, subd. (a), 288a, subd. (c)(2), 288, subd. (a), 667.61, subds. (c) & (e)(5).) Appellant was sentenced to two consecutive terms of 15-years-to-life for counts 3 and 4; imposition of punishment for counts 1 and 2 was stayed pursuant to section 654.
S.P. is the victim in counts 1, 2 and 3. L.V. is the victim in count 4.
Unless otherwise specified all statutory references are to the Penal Code.
Appellant argues the court erred by failing to instruct sua sponte on nonforcible oral copulation of a child as a lesser included offense to count 2. Also, he contends only one multiple victim allegation should have been submitted to the jury. Appellant further argues the court erred under California state law and prejudicially infringed his federal constitutional due process right by failing to instruct that count 1 is an alternative charge to counts 2 and 3, and by permitting the jury to return guilty verdicts on all three counts. None of these arguments is persuasive. Finally, appellant argues he cannot stand convicted of continuous sexual abuse (count 1) and specific sexual acts involving the same victim during the same time frame (counts 2 and 3) because these are alternative crimes. We agree with this contention. As will be explained, the proper remedy is to reverse count 1. The judgment will otherwise be affirmed.
FACTS
Counts 1-3, victim S.P.
S.P. was born in 1993 and lives with her mother. S.P.’s mother married appellant in 2001. Their relationship ended in 2004 and they divorced. S.P. testified appellant began molesting her in 2002, when she was eight years old. On many occasions appellant touched S.P.’s vagina over her clothing. Also, he grabbed one of her hands, pulled down his pants and made her touch his penis. In addition, appellant “would put [S.P.’s] mouth on his penis.” On other occasions, appellant would touch S.P.’s bare breasts. Appellant told S.P. “not to say anything because I might get in trouble also if he got in trouble.” In 2007, S.P. told her current stepfather about appellant’s actions.
Count 4, victim L.V.
L.V. was born in 2003 and lives with her mother. L.V.’s mother began dating appellant in 2005 and, on an unspecified date, he began cohabitating with them. L.V. testified appellant “hurt” her “in [her] private part” with his pointer finger and she told her grandmother about it the next day.
L.V.’s mother bore two children who were fathered by appellant. She testified neither L.V. nor any of her other children told her that appellant inappropriately touched them.
Kern County Sheriff’s Department Detective William Aseltine testified he interviewed L.V.’s grandmother on an unspecified day in July 2007 in response to a referral from Child Protective Services (CPS). She told him that “[L.V.] had disclosed, while she was giving her a bath, that [appellant] had been touching her when he gives her a bath.”
On July 18, 2007, a social worker interviewed L.V., who was then aged four. Using a young child’s language, L.V. told the social worker that appellant digitally penetrated her on two occasions.
DISCUSSION
I. The Court Did Not Have a Duty to Instruct on Nonforcible Oral Copulation of a Minor.
A. Facts.
Count 2 of the amended information alleged “on or about and between August 1, 2001 and September 30, 2004, [appellant], did willfully and unlawfully commit an act of oral copulation with [S.P.], accomplished against the will of the victim by means of force … in violation of Penal Code section 288A(C)(2), a felony. It is further alleged that this offense is a serious felony within the meaning of Penal Code section 1192.7(C)(5).” (Capitalization omitted.)
During the instructional conference, the trial court said the lesser-included offenses to count 2 were “[s]imple assault and battery.” Defense counsel replied, “That’s fine, Judge.”
The jury began deliberating on the morning of August 18, 2009. At 3:36 p.m., the jury foreperson sent the court a note reading, “We can come to an agreement on counts 1, 3, and 4 but not count 2. What direction should we take now?” In response to questioning by the judge, the foreperson stated the numerical split on count 2 was 11 to 1. The court instructed the jury with CACI No. 5013 and excused them for the day. The jury began deliberating on the following morning at 9:54 a.m. and returned with its verdicts six minutes later.
B. This crime is not a lesser included offense to count 2.
Appellant argues the trial court erred by failing to instruct sua sponte on nonforcible oral copulation of a minor in violation of section 288a, subdivision (b)(1) as a lesser included offense to count 2. We disagree.
The trial court has a sua sponte obligation to instruct on a lesser included offense when there is substantial evidence from which a reasonable jury could conclude the defendant committed the lesser, but not the greater, offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) “Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117.) Two tests are used to determine whether an offense is a lesser included offense: the statutory elements test and the accusatory pleading test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) The legal elements test is satisfied when “ ‘ “all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citations.]” (Ibid.) The accusatory pleading test is met “ ‘ “if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]” (Id. at pp. 288-289.)
Appellant correctly concedes the statutory elements test is not satisfied because forcible oral copulation does not have an age requirement, while the crime of nonforcible copulation with a minor does. “The nonforcible sex crimes require the perpetrator and victim to be within certain age limits while the forcible sex crimes do not …; thus, the nonforcible crimes are not lesser included offenses of the forcible sex crimes.” (People v. Scott (2000) 83 Cal.App.4th 784, 794.)
Appellant also acknowledges S.P.’s age was not set forth in the allegations supporting count 2, although it is alleged in connection with other counts. Thus, the allegations pled in count 2 did not allege the age requirement necessary to violate section 288a, subdivision (b)(1) (nonforcible oral copulation of a minor). Relying on People v. Cook (2001) 91 Cal.App.4th 910, 922 (Cook), appellant asserts that when applying the accusatory pleading test, one looks to the accusatory pleading as a whole. We are not convinced.
Cook is factually and legally inapposite. In Cook, the defendant objected to the trial court’s instruction on conspiracy to commit assault by means of a firearm as a lesser included offense of conspiracy to commit murder. Defendant was convicted of the lesser included offense. On appeal, the respondent conceded this was instructional error and asked for the conviction to be reversed. The appellate court rejected the concession, holding that a trial court may look to the overt acts pleaded in a charge of conspiracy to determine whether the charged offense includes a lesser included offense. Cook did not look to the language of two separate counts to create an amalgamated lesser included offense, as appellant asks us to do here.
Appellant does not cite any case in which the language of two separate counts was combined to create a lesser-included offense under the accusatory pleading test. We agree with respondent that it is inappropriate to consider all of the substantive charges together under the accusatory pleading test. The pleading test is a method of determining what offenses are included in each individual count. Each count may or may not have lesser offenses included within it, and the counts properly are considered individually. Since nonforcible oral copulation of a minor fails both the legal elements and pleading tests, no sua sponte instructional obligation existed.
C. In any event, the instructional omission is harmless.
“[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility … such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” (People v. Breverman, supra, 19 Cal.4th at p. 165.)
In this case, failure to instruct on nonforcible oral copulation of a minor was harmless because it is not reasonably probable that a rational jury would have concluded the oral copulation was not accomplished by duress. “ ‘Duress’ as used in this context means ‘a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ [Citations.]” (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran).) When appraising duress, the entirety of the circumstances is considered. (Id. at pp. 13-14.)
In Cochran, a case involving a nine-year-old victim, the reviewing court observed: “[A]s a factual matter, when the victim is as young as this victim and is molested by her father in the family home, in all but the rarest cases duress will be present.” (Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.) This is not one of those rare cases. When the sexual molestation began, S.P. was only eight years old, “an age at which adults are commonly viewed as authority figures. The disparity in physical size between an eight-year-old and an adult also contributes to a youngster’s sense of his relative physical vulnerability.” (People v. Pitmon (1985) 170 Cal.App.3d 38, 51.) Appellant was her stepfather. A defendant’s position of dominance and authority over the victim is relevant when determining duress. (People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 238-239.) Also, S.P. testified that when appellant touched her breasts during the sexual molestations that occurred in her bedroom, she tried to leave but he pulled her back into the room. This demonstrated to S.P. that resistance would be futile. Finally, appellant told S.P. that if she reported the abuse she might get in trouble. A warning not to disclosure the molestation is another factor proving duress. (Cochran, supra, 103 Cal.App.4th at p. 14.)
As evidence of prejudice, appellant points to the difficulty the jury experienced in reaching a verdict on count 2. We are not convinced. The jury reached a verdict on count 2 soon after the court responded to the foreperson’s note. The strength of the evidence proving duress is so strong that the length of time it took the jury to reach unanimity on count 2 does not generate a reasonable probability that appellant would have been found guilty of nonforcible oral copulation of a minor if instruction on this crime had been given. Accordingly, we find the instructional omission to be harmless.
II. Appellant Forfeited Review of the Verdict Forms.
A. Facts.
The original information in this case alleged three counts. Count 1 pertained to S.P. and counts 2 and 3 pertained to L.V.. Multiple victim allegations were separately pled in connection with counts 1, 2 and 3. Appellant did not file a demurrer to the information or otherwise object on the ground that only one multiple victim allegation should have been alleged.
An amended information containing four counts was filed during trial. Multiple victim allegations were separately pled in connection with counts 2, 3 and 4. Appellant did not object to the amended information on the ground that only one multiple victim enhancement should have been alleged in connection with the entire case.
The verdict forms directed the jury to make separate findings on the multiple victim enhancement allegations that were attached to counts 2, 3 and 4. Appellant did not object to the wording of the verdict forms or argue that the jury should have been asked to decide one multiple victim allegation encompassing the entire case. The jury found the multiple victim allegation attached to count 2 not true but the multiple victim allegations attached to counts 3 and 4 to be true. Appellant did not object to the verdicts before the jury was discharged.
The verdict form for counts 2, 3 and 4 each contained a separate page titled “finding on penal code section 667.61(e)(5)” (capitalization, underline and bolding removed). Each of the three verdict forms provided: “We, the Jury, empanelled to try the above entitled cause, find it to be true as to defendant EDDIE JOHNNY HERRERA, in the commission of the above charged offense has committed an offense in violation of subdivision 667.61(c), against more than one victim, within the meaning of [section] 667.61(e)(5), as alleged in the [second/third/fourth] count of the Amended Information.” This was followed by an alternative verdict form that was identically phrased, except that the words “not true” were substituted for the word “true.”
Appellant filed a motion for new trial, which was denied. He did not argue the verdicts were improperly worded or otherwise contend the jury should have been presented with one multiple victim enhancement.
Appellant was sentenced to two consecutive terms of 15-years-to-life for counts 3 and 4 pursuant to section 667.61, subdivision (b). Appellant did not object to imposition of sentence based on the separate multiple victim findings attached to counts 3 and 4, or otherwise contend the verdicts were irregular.
B. Appellant did not preserve an objection to the verdict forms.
Subdivision (b) of section 667.61 provides, in relevant part, a defendant “who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.” (Italics added.) Appellant concedes that sentences of 15-years-to-life for both counts 3 and 4 were proper pursuant to subdivision (b) of section 667.61 and he does not challenge his sentence as unauthorized. Yet, he contends the verdict forms were incorrectly worded because the jury should have been asked to make a single multiple victim finding covering the entire case. Respondent asserts appellant’s objection to the wording of the verdict forms was not preserved for judicial review because he did not object on this ground below. We agree with respondent.
All references to section 667.61 are to the statutory language that was in effect when appellant committed the charged offenses. Section 667.61 was amended in 2006, but subdivision (e)(5) was unchanged. Section 667.61 was amended again in 2010 and the multiple victim circumstance formerly contained at subdivision (e)(5) is now contained in subdivision (e)(4).
“An objection to jury verdict forms is generally deemed waived if not raised in the trial court. [Citations.]” (People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6.) Failure to interpose a timely objection to an alleged defect in the verdict “precludes consideration of appellate challenge thereto. [Citations.]” (People v. Lewis (1983) 147 Cal.App.3d 1135, 1142.) When there is an unmistakable intent to convict, a defect in the form of the verdict is disregarded as immaterial absent objection by the defendant in the trial court. (People v. Radil (1977) 76 Cal.App.3d 702, 710.)
In People v. Webster (1991) 54 Cal.3d 411 (Webster), the defendant argued the verdicts finding him guilty of murder “were neither general nor special, and were thus unauthorized.” (Id. at p. 446.) Our Supreme Court found “the point was waived by defendant’s persistent failure to object or seek corrective measures below. We reject it for that reason alone.” (Ibid.) Then it explained, “[i]n any event, technical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice. [Citations.]” (Id. at p. 447, fn. omitted.) It cited section 1404 which provides, “Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.” The high court reasoned the jury’s intent to convict the defendant of first degree murder was conclusively shown. The defendant’s substantial rights were not affected by the alleged defect in the verdicts and he did not suffer any cognizable prejudice. “[A]n undifferentiated verdict would not have changed the appellate outcome.” (Webster, supra, at p. 447.)
Following and applying Webster, we likewise conclude appellant’s challenge to the verdict forms was forfeited by the absence of objection below. If he had objected prior to commencement of jury deliberations, the alleged defect in the verdict forms could have been considered and, if necessary, cured. (Webster, supra, 54 Cal.3d at p. 446.) Appellant’s due process rights were not affected by the alleged error in the verdict forms. He was provided with legally adequate notice of the multiple victim enhancement allegations and given a full and fair opportunity to defend against them. The multiple victim enhancement allegations decided by the jury in its verdicts were identical to the allegations contained in the amended information. Since appellant concedes his sentence on counts 3 and 4 was properly enhanced pursuant to section 667.61, subdivision (b), he cannot demonstrate any prejudice arising from the multiple victim finding on each count rather than on the case as a whole. Appellant benefited from the jury’s not guilty finding on multiple victim allegation attached to count 2. Thus, appellant’s substantial rights were not affected and he did not suffer any prejudice. (Webster, supra, 54 Cal.3d at pp. 446-447; see also, e.g., People v. Radil, supra, 76 Cal.App.3d at pp. 709-710; People v. Jones (1997) 58 Cal.App.4th 693, 710-711; People v. Allen (1985) 165 Cal.App.3d 616, 627-628; People v. Sheik (1925) 75 Cal.App. 421, 425-426.)
We note that the factual inconsistency between the not true finding on the multiple victim allegation attached to count 2 and the true finding on the multiple victim allegations attached to counts 3 and 4, does not have any bearing or meaning on the validity of the verdicts. (People v. Keltie (1983) 148 Cal.App.3d 773, 785.) Inconsistent findings may be caused simply by the mercy or leniency of the jury, or through confusion or ennui. (People v. Pettaway (1988) 206 Cal.App.3d 1312, 1325.)
In any event, if the substantive legal claim had been preserved for review it would not have succeeded. Appellant’s analogy between multiple victim special circumstance allegations pursuant to section 190.2 and multiple victim allegations pursuant to section 667.61, subdivision (e)(5) was rejected in People v. DeSimone (1998) 62 Cal.App.4th 693, 701-702. We discern no persuasive basis to disagree with DeSimone on this point or any other. The multiple victim enhancement allegation contained in section 667.61 is not analogous to the multiple victim special circumstance contained in section 190.2. Therefore, appellant’s comparison of this case to the situation examined by our Supreme Court in People v. Jennings (1991) 53 Cal.3d 334, 388, fails.
III. Allowing Verdicts to be Returned on All Counts was Proper.
A. Section 288.5 does not prohibit verdicts on alternative counts.
Section 288.5, subdivision (c) provides: “No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim.” Under this section, continuous sexual abuse in violation of section 288.5 and any discrete sexual offense against the same victim that occurred within the period of the continuous sexual abuse must be charged in the alternative, and a defendant may be convicted of either offense but not both. (People v. Johnson (2002) 28 Cal.4th 240, 244-248 (Johnson).)
All references to section 288.5 are to the statutory language that was in effect when appellant committed the charged offenses. Section 288.5 was amended in 2006 with an effective date of September 20, 2006. (Stats. 2006, ch. 337, § 8.)
Appellant argues when a defendant is charged with continuous sexual abuse pursuant to section 288.5, subdivision (c) and specific sexual crimes involving the same victim during the same time period, the court is required to instruct the jury that it must elect between finding the defendant guilty of continuous sexual abuse or the discrete sexual crimes. In appellant’s view, the jury is not legally authorized to return verdicts on all of the charged offenses. Appellant reasons that because section 288.5 requires the prosecution to charge continuous child sexual abuse and specific sexual offenses in the alternative, the Legislature intended that the jury return alternative verdicts. We are not persuaded. As will be explained, nothing in the language or purpose of section 288.5 supports this contention and there are significant practical and legal impediments to proceeding in the manner he suggests.
Since section 288.5 does not contain any reference to alternative verdicts or expressly state who is to decide whether a defendant shall stand convicted of continuous child sexual abuse or discrete sexual offenses charged in the alternative, this question presents a question of statutory construction. “Our role in construing a statute is to ascertain the intent of the Legislature in order to effectuate the purpose of the law. [Citation.] Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning and construing them in context. [Citation.] If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction. [Citations.] If the statutory language contains no ambiguity, the Legislature is presumed to have meant what it said, and the plan meaning of the statute governs.” (Johnson, supra, 28 Cal.4th at p. 244.) If the plain language of the statute is not clear and unambiguous, we “apply reason, practicality, and common sense to the language at hand. If possible, the words should be interpreted to make them workable and reasonable [citations] in accord with common sense and justice, and to avoid an absurd result.” (Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1239.)
Section 288.5 was enacted in 1989 (Stats. 1989, ch. 1402, § 1, p. 6138) in response to the decision in People v. Van Hoek (1988) 200 Cal.App.3d 811 (Van Hoek), disapproved in People v. Jones (1990) 51 Cal.3d 294, 322. The Van Hoek line of authority reversed the convictions of resident child molesters that were based on generic testimony lacking specificity concerning the time and place of each incident of sexual molestation. (Johnson, supra, 28 Cal.4th at p. 247.) The Legislature stated its intent in enacting section 288.5 was “to provide additional protection for children subjected to continuing sexual abuse and certain punishment for persons referred to as ‘resident child molesters’ by establishing a new crime of continuing sexual abuse of a child under circumstances where there have been repeated acts of molestation over a period of time, and the perpetrator either resides with or has recurring access to the child.” (Stats.1989, ch. 1402, § 1(b), p. 6138.) In enacting this statute, “the Legislature apparently was not seeking to multiply potential convictions or punishments for such offenders, but rather to subject them to ‘certain’ punishment by lowering the unanimity hurdle against which many molestation prosecutions evidently had stumbled.” (Johnson, supra, 28 Cal.4th at p. 247.)
But not every prosecution under section 288.5 involves generic testimony. Where the evidence is specific enough to support jury verdicts convicting a defendant of both continuous child sexual abuse and specific counts of sexual abuse, the only principled way for either a jury or a trial judge to differentiate between the section 288.5 violation and the specific offense or offenses is by length of sentence. The jury, however, is specifically instructed not to consider penalty when deciding guilt or innocence. (People v. Shannon (1956) 147 Cal.App.2d 300, 306.) CALCRIM No. 101, which was given in this case, instructs: “You must reach your verdict without any consideration of punishment.” To ask the jury to return alternative verdicts in cases alleging continuous child sexual abuse and specific acts of abuse in the alternative invites the jury to speculate on penalty because there is no other basis for differentiating between the alternate charges. The Legislature cannot have intended the jury to unlawfully consider penalty in deciding whether to convict or acquit a defendant of the alternative counts. Therefore, we hold section 288.5 is not properly interpreted in the manner urged by appellant; the proscription against multiple convictions is not a proscription against guilty verdicts on all counts. The court was not obligated to instruct the jury that it must select between the alternate counts when returning its verdicts.
B. No due process violation occurred.
Relying on Hicks v. Oklahoma (1980) 447 U.S. 343 (Hicks), appellant argues his federal constitutional due process right was violated when the jury was not instructed on alternative counts and was allowed to return guilty verdicts on all counts. This argument fails because Hicks is factually and legally inopposite.
Hicks involved a prosecution in an Oklahoma state court. Unlike California, a defendant prosecuted under Oklahoma state law was entitled to have a jury fix his or her punishment. The trial court in Hicks instructed the jury that if it found the accused guilty it was required to impose a mandatory 40-year term. The jury returned a guilty verdict and imposed the mandatory term. The United States Supreme Court reversed, holding that when a state has provided for the imposition of criminal punishment in the jury’s discretion, the accused has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury’s exercise of its discretion. It found there was a substantial possibility under the facts of the case that the jury would have returned a sentence less than the 40 years had it been correctly instructed. (Hicks, supra, 447 U.S. at pp. 344-346.)
Appellant maintains that Hicks is applicable here because the Legislature has established that a jury must decide between alternative charges. He insists this was structural error requiring per se reversal. The fallacy in this argument is that section 288.5 does not prohibit the jury from returning verdicts on all charges in an accusatory pleading, even those which are alternatively pled. We have already concluded the Legislature could not have intended for section 288.5 be interpreted in such a manner. Thus, Hicks has no bearing on this case and appellant’s due process argument fails.
Since we have concluded the due process claim does not have legal merit, appellant was not prejudiced by defense counsel’s failure to object on this ground below. We reject appellant’s ineffective assistance claim for this reason. (In re Jackson (1992) 3 Cal.4th 578, 604 [ineffective assistance claim may be resolved exclusively on absence of prejudice].)
IV. The Conviction on Count 1 Must Be Vacated.
Appellant also contends he can either be convicted of continuous child abuse (count 1) or of oral copulation and lewd acts (counts 2 and 3) but he cannot properly be convicted of all three crimes. He urges this court to remand the matter to the trial court for a determination which convictions are most commensurate with his culpability. Respondent agrees that all three convictions cannot stand but argues the proper remedy is to reverse count 1. We accept respondent’s concession that all three convictions cannot stand and agree the proper remedy is to reverse count 1.
In Johnson, supra, 28 Cal.4th 240, our Supreme Court held that when there have been multiple convictions for continuous sexual abuse and specific sexual offenses, “either the continuous abuse conviction or the convictions on the specific offenses must be vacated.” (Id. at p. 245.) It concluded without analysis that the appellate court “correctly reversed the convictions” on the discrete sexual offenses. (Id. at p. 248.)
People v. Torres (2002) 102 Cal.App.4th 1053 (Torres) determined that in keeping with the legislative intent of liability reflecting culpability, section 288.5, subdivision (c) reflects an intent “that we leave [the defendant] standing convicted of the alternative offenses that are most commensurate with his culpability.” (Torres, supra, at p. 1059.) In Torres, the defendant was convicted of continuous sexual abuse and 10 felony sex offenses against a single victim. He was sentenced on all the counts. The appellate court determined that the defendant faced “a greater aggregate sentence with respect to the specific offenses than on the section 288.5 offense.” (Id. at p. 1060.) Therefore, “the appropriate remedy is to reverse the conviction for violating section 288.5.” (Ibid.)
Here, appellant was sentenced to 15-years-to-life for count 3 (lewd acts) because a multiple victim enhancement was attached to this offense. A term of eight years was imposed and stayed for count 2 (forcible oral copulation) and a term of 16 years was imposed and stayed for count 1 (continuous sexual abuse). The indeterminate life punishment component of the sentence for count 3 is greater than the determinate term imposed for count 1. Therefore, in this case the convictions for lewd acts and forcible copulation are most commensurate with appellant’s culpability and the continuous sexual abuse conviction must be vacated.
Appellant argues the sentence should be vacated and the matter remanded to the trial court to determine which counts should stand because it is most familiar with the charges, evidence and sentencing factors. Appellant appears to view the matter as analogous to a situation in which a court has imposed a sentence in ignorance of the scope of its discretion. The analogy is inapt. Deciding which counts to reverse in order to comply with section 288.5, subdivision (c), does not involve an exercise of sentencing discretion. Neither this court nor the trial court has the discretion to choose which conviction to vacate based on an overall assessment of all the circumstances surrounding the offense and the offender. Rather, the offense or offenses which yield the greatest punishment must be upheld. (Torres, supra, 102 Cal.App.4th at p. 1060.) As a matter of law, we find counts 2 and 3 are most commensurate with appellant’s culpability because they result in the longest aggregate sentence. Unlike People v. Bautista (2005) 129 Cal.App.4th 1431, 1434, 1436-1439, which is relied upon by appellant, the conviction that must be reversed is not integral to the sentence. Since the trial court stayed imposition of punishment for count 1, reversing this conviction will not have a tangible effect on appellant’s sentence. Therefore, it is not necessary to remand for resentencing.
DISPOSITION
The conviction for continuous sexual abuse (count 1) is reversed. In all other respects, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to provide a certified copy of it to appropriate agencies and to the parties.
WE CONCUR: KANE, J., POOCHIGIAN, J.