225 Cal. App. 4th 950
Cal. Ct. App.2014Background
- Defendant molested his nieces, C. and B., over several years; convicted of multiple counts including continuous sexual abuse (§ 288.5) and lewd acts (§ 288, subd. (a)).
- The information alleged counts 1 and 2 with overlapping time periods for B.; count 1 covered 1999–2000, count 2 covered 2000–2002.
- The jury imposed a composite sentence: determinate term plus multiple indeterminate terms totaling 15 years to life for several counts.
- The trial court admitted sexually explicit texts and photos sent by defendant to C. in 2009 over defense objection.
- The probation report and sentencing proceedings discussed presentence custody credits, and conduct credits were initially not awarded.
- On appeal, the court modified the judgment to award presentence conduct credits and affirmed as modified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Overlapping time periods for counts 1 and 2 | People contends no reversal required as defendant did not demur. | Goldman argues illegal conviction due to overlapping periods within same victim. | Forfeited—no demurrer to information; no reversal. |
| Effectiveness of counsel on demurrer/charging error | Lacks effectiveness issue since no demurrer; charging defect remained. | Counsel should have demurred to protect against improper charging. | No prejudice; failure to demur not reversible. |
| Admission of sexually explicit texts and photographs | Evidence shows prurient interest and corroborates victims. | Evidence is unfairly prejudicial and should have been excluded. | Court did not abuse discretion; probative value outweighed prejudice. |
| Presentence custody and conduct credits | Credits calculated as stated; custodial days supported by record. | Should receive additional conduct credits under § 2933.1. | Award of 106 days presentence conduct credits; judgment modified accordingly. |
Key Cases Cited
- People v. Johnson, 28 Cal.4th 240 (2002) (limits on charging continuous vs discrete offenses)
- People v. Ewoldt, 7 Cal.4th 380 (1994) (evidence purposes; intent and corroboration in sex offenses)
- People v. Jennings, 53 Cal.3d 334 (1991) (demurrer standards and waiver rules in appellate review)
- People v. Alvarez, 100 Cal.App.4th 1170 (2002) (demonstrates charging/waiver principles in information defects)
- People v. Brewer, 192 Cal.App.4th 457 (2011) (conduct credits under § 2933.1; forfeiture considerations)
- People v. Duesler, 203 Cal.App.3d 273 (1988) (notice requirements and conduct credits considerations)
- People v. Ledesma, 43 Cal.3d 171 (1987) (ineffective assistance standard and prejudice inquiry)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)