P. v. Vantilburg
Filed 1/23/09 P. v. Vantilburg CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD JOHN VANTILBURG, Defendant and Appellant. | C056405 (Super. Ct. No. CM024945) |
Defendant Clifford John Vantilburg began sexually molesting a young girl when she was 11 years old and continued doing so until around April 19, 2006 -- a week before his arrest. Inadvertently observed on one occasion while he was having sexual intercourse with the victim, defendant assaulted and threatened to kill the witness if he reported the molestation.
Defendant was charged with three crimes committed on or about June 18, 2002--one count of lewd and lascivious act on a child under the age of 14 (Pen. Code, 288, subd. (a)) (count 1) and two counts of oral copulation with a child under 14 (Pen. Code, 288a, subd. (c)(1)) (counts 2 and 3); three crimes committed on or about June 18, 2003--one count of lewd and lascivious act on a child 14 years old (Pen. Code, 288, subd. (c)(1)) (count 4) and two counts of oral copulation with a child under 14 (counts 5 and 6)[1]; a crime committed on or about April 19, 2004--dissuading, with use of a deadly weapon, a witness from reporting a crime (Pen. Code, 136.1, subd. (b)(1)), 12022, subd. (b)(1)) (count 9); a crime committed on or about June 18, 2004--lewd and lascivious act on a child 15 years old (Pen. Code, 288, subd. (c)(1)) (count 7); two crimes committed on or about April 19, 2006--sexual penetration with a foreign object of a person under the age of 18 (Pen. Code, 289, subd. (h)) (count 8) and possession of an assault weapon (Pen. Code, 12276.1) (count 10); and a crime committed from June 18, 2001, through June 17, 2003--continuous sexual abuse of a child (Pen. Code, 288.5) (count 11).
Defendant waived his right to a jury trial, and the court found him guilty of all the counts and found true the allegation he used a deadly weapon in dissuading a witness from reporting one of the sexual molestations.
He was sentenced to state prison for an aggregate term of 31 years and eight months (16 years on count 11, with consecutive terms of two years on counts 1, 2, 3, 5, 6, and 9, consecutive terms of eight months on counts 4, 7, 8, and 10, and a consecutive term of one year for the deadly weapon enhancement). The court also imposed various fines and fees.
On appeal, defendant contends, and the People concede, that he was improperly convicted of both continuous sexual abuse of the victim (count 11) and the discrete sex offenses committed against the same victim over the same period of time (counts 1, 2, 3, 5, and 6). We shall reverse the judgment in part and remand the matter to the trial court for further proceedings.
DISCUSSION
Penal Code section 288.5, subdivision (c) states in pertinent part: 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. (Further section references are to this code.)
Because section 288.5, subdivision (c) clearly mandates the charging of continuous sexual abuse and specific sexual offenses, pertaining to the same victim over the same period of time, only in the alternative, [prosecutors] may not obtain multiple convictions in [this] circumstance. (People v. Johnson (2002) 28 Cal.4th 240, 248.) When there have been such multiple convictions, either the continuous abuse conviction or the convictions on the specific offenses must be vacated. (Id. at p. 245.)
We thus turn to the appropriate remedy in this case. [S]ection 288.5, subdivision (c) gives the prosecutor maximum flexibility to allege and prove not only a continuous sexual abuse count, but also specific felony offenses commensurate with the defendants culpability, subject only to the limitation that the defendant may not be convicted of both continuous sexual abuse and specific felony sex offenses committed in the same period. It therefore is also appropriate, in deciding which convictions to vacate as the remedy for a violation of the proscription against multiple convictions set forth in section 288.5, subdivision (c), that we leave appellant standing convicted of the alternative offenses that are most commensurate with his culpability. (People v. Torres (2002) 102 Cal.App.4th 1053, 1059, original italics (hereafter Torres).)
In Torres, the trial court imposed a longer aggregate sentence for the specific offenses and stayed execution of sentence on the section 288.5 violation; thus, the appellate court concluded the appropriate remedy was to reverse the conviction for violating section 288.5, which carried the lower sentence. (Torres, supra, 102 Cal.App.4th at pp. 1060-1061; see also People v. Alvarez (2002) 100 Cal.App.4th 1170 [trial court properly granted prosecutions motion to dismiss continuing sexual abuse charge rather than the individual counts of lewd conduct which carried a longer sentence].)
Here, both the maximum sentence on count 11 (continuous sexual abuse of the victim) and the maximum aggregate sentence on counts 1, 2, 3, 5, and 6 (the specific sexual crime against that same victim during the same time frame) are 16 years. But the corresponding fines, fees, and other consequences may vary.
Therefore, we conclude the appropriate remedy is to remand the matter to permit the trial court to dismiss either count 11 or counts 1, 2, 3, 5, and 6, and to resentence defendant accordingly. The trial court is most familiar with the offenses and other facts bearing on sentencing, and can determine whether defendant should be convicted of continuous sexual abuse or the five separate offenses, and to impose the sentence most commensurate with his culpability.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court with instructions to dismiss either count 11 or counts 1, 2, 3, 5, and 6, and to resentence defendant accordingly. In all other respects, the judgment is affirmed.
SCOTLAND , P. J.
We concur:
RAYE , J.
ROBIE , J.
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[1] Because the victim turned 14 years old on June 18, 2003, the parties agree that counts 5 and 6 must have necessarily occurred on or before June 17, rather than June 18, 2003.
