P. v.
Filed 6/28/12 P. v. Flores
CA4/3
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opinion has not been certified for publication or ordered published for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,
v.
JORGE CRUZ ADAN FLORES,
Defendant
and Appellant.
G045144
(Super. Ct. No. 08CF2067)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, M. Marc Kelly, Judge.
Affirmed as amended.
Michael B. McPartland,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Natasha Cortina and William M. Wood,
Deputy Attorneys General, for Plaintiff and Respondent.
*
* *
A jury convicted
defendant Jorge Cruz Adan Flores of sexual
intercourse or sodomy with a child 10 years old or younger (count 1; Pen.
Code, § 288.7, subd. (a); all further statutory references are to this code),
oral copulation or sexual penetration of a child that age (count 2; § 288.7,
subd. (b)), and continuous sexual abuse (count 3;
§
288.5, subd. (a)). The court sentenced
him to 25 years to life on count 1, a consecutive 15 years to life on count 2,
and stayed sentencing on count 3.
Defendant contends the
court prejudicially erred in not sua
sponte instructing the jury if it had a reasonable doubt about whether he
committed sexual intercourse or sodomy with a child aged 10 or younger, or merely
the lesser offense of attempting to commit that crime, it could only convict
him of the lesser offense. (
555.) We disagree. CALCRIM Nos. 3517 and 220, both given by the
court, together instructed the jury on what defendant describes as “the effects
of reasonable doubt on the choice between the greater and lesser included
offenses.”
Defendant asserts
CALCRIM No. 3517 simply told the jury how to fill out the verdict forms and
that an attempt to commit the greater crime was a lesser included offense. But CALCRIM No. 3517 must be considered in
conjunction with CALCRIM No. 220, which instructed the jury the prosecution had
to prove defendant guilty beyond a reasonable doubt, otherwise defendant was
entitled to an acquittal. CALCRIM No.
3517 reflects and incorporates the principle of reasonable doubt set forth in
CALCRIM No. 220, informing the jury it could not find defendant guilty of a
greater crime unless all the jurors agreed he was guilty of the greater crime
beyond a reasonable doubt. Together the
two instructions did not permit the jury to find defendant guilty of the
greater offenses, and required it to acquit him of the greater offenses and
convict him of the lesser offense where it “has a reasonable doubt about
elements of the greater offense and no reasonable doubt about any elements of
the lesser,” thereby satisfying Dewberry’s
v. Barajas (2004) 120 Cal.App.4th 787, 793 [discussing CALCRIM No. 3517’s
predecessor, CALJIC No. 17.10].) That
distinguishes this case from People v.
Crone (1997) 54 Cal.App.4th 71, on which defendant relies, where the
instructions did not “tell[] the jury what to do if it ha[d] a reasonable doubt
as to whether the defendant committed the greater or a lesser offense” and “it
[did] not appear that the omission was cured by any other instructions.” (Id.
at pp. 76-77.)
Defendant also argues
either counts 1 and 2, or count 3 must be reversed because they involve
overlapping timeframes and section 288.5, subdivision (c) proscribes the
charging of both continuous sexual abuse and another “act of substantial sexual
conduct . . . involving the same
victim . . . unless the other charged offense occurred
outside the time period charged under this section or the other offense is
charged in the alternative.” The
Attorney General agrees, as do we. (
245 [section 288.5, subdivision (c) violation mandates “either the continuous
abuse conviction or the convictions on the specific offenses must be
vacated”].) When section 288.5,
subdivision (c) is violated, the remedy is to “‘leave appellant standing
convicted of the alternative offenses that are most commensurate with his
culpability.’ [Citation.]” (People
v. Bautista (2005) 129 Cal.App.4th 1431, 1437.) Defendant does not dispute his culpability is
most commensurate with the section 288.7 convictions, which impose life terms,
whereas a violation of section 288.5 only carries a determinate term.
Defendant’s conviction
on count 3 is vacated. The trial court
is directed to prepare an amended abstract of judgment consistent with this
opinion and to forward a certified copy to Adult Operations,
affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
