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Name: In re Emilio C.
Case #: B164437
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 03/11/2004
Summary

The minor, who had previously been adjudicated a ward of the court under Welfare and Institutions Code section 602, was committed to the California Youth Authority for a term not to exceed 17 years and 10 months, following the adjudication of a subsequent petition alleging continuous sexual abuse of a child (288.5, subd.(a)). The trial court found that the offense was one covered by section 707, subd. (b), and elected to aggregate the periods of confinement on multiple petitions, including two previously sustained ones. Appellant challenged the designation of the 288.5, subd. (a) adjudication as a 707(b) offense. The appellate court here rejected that challenge, finding that substantial evidence supported the designation. The court was entitled to base its determination on facts shown at the disposition hearing, which demonstrated that the repeated sexual assaults on appellant’s niece constituted lewd and lascivious conduct by means of force, violence, etc. within the meaning of section 288, subd. (b). A violation of section 288.5, subd. (a) necessarily includes the violation of section 288 which is specified in 707(b)(6). Moreover, the evidence also established that the assaults constituted rape with force or violence, another offenses which is specifically included in section 707(b). Nor did the fact that the minor was under 16 years old at the time of the offense preclude the 707(b) designation. The minor assaulted his niece for a period of nearly two years. He was 16 for at least two months of that period.