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Name: People v. Bautista
Case #: A106495
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 06/08/2005

Appellant was convicted of one count of continuous sexual abuse of a child, six counts of procurement of children for lewd and lascivious acts, and one count of lewd or lascivious acts with a child. In this habeas petition, she argued that one of the counts of procurement was barred by the statute of limitations, and that she could not be convicted of both continuous sexual abuse and procurement of the same child during the same time period. The appellate court agreed and reversed. A defendant may waive a statute of limitations and plead guilty to a time-barred offense, but only where the waiver is knowing and voluntary, and made for his benefit. These requirements were not met here. Further, Bautista was erroneously convicted of both continuous sexual abuse of a child and procurement of the same child during the same time period, and therefore the other counts also had to be reversed. The California Supreme Court has previously held that section 288.5 requires by its own terms that other sex offenses relating to the same victim and the same period can only be charged in the alternative. The appellate court rejected respondent’s argument that procurement was not a “sex offense” and could therefore be charged. It also rejected appellant’s argument that procurement was the correct conviction and that the 288.5 charge should be reversed, finding sufficient evidence of continuous sexual abuse.