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Name: People v. Dalby
Case #: C041880
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/02/2004
Subsequent History: Rev. granted 2/16/05: S129810

Where a defendant is charged with both continuous sexual abuse of a child as well as individual molestation offenses, the jury is not required to determine which of the alternative convictions should stand. After the jury returned a verdict convicting the defendant of violations of Penal Code section 288.5, subdivision (a), as well as individual violations of sections 269 and 288a, the trial court reversed the convictions of three counts of continuous sexual abuse. On appeal, appellant argued that under Blakely v. Washington (2004) 159 L.Ed.2d 403, the jury rather than the judge should have made the determination as to which of the alternative counts should stand. The Court of Appeal rejected this argument, as well as the argument that the jury should have been instructed under CALJIC 17.03 that it could only return a guilty verdict as to either the continuous abuse charges or the individual counts. The Court of Appeal held that the refusal to instruct the jury to return alternate verdicts did not deprive the defendant of due process, and that an instruction under CALJIC 17.03 would have been inappropriate under the circumstances since that instruction should only be given where the defendant may not be legally convicted of the alternate counts. Noting that the court in People v. Johnson (2002) 28 Cal.4th 240 (decided after the verdict but before sentencing in this case) acknowledged that continuous sexual abuse and other sexual offenses do not stand in the relation of greater and lesser included offenses, the appellate court found that not only was an instruction under 17.03 inappropriate, the Legislature could not have intended to put the alternative conviction choice before the jury at all, since that choice requires a consideration of sentence length, which the jury may not consider in reaching a verdict. Further, since the decision did not rely on any factual issues not determined by the jury, the judge’s action in reversing the three 288.5(a) convictions did not violate the Blakely rule. Next, the court rejected appellant’s argument that CALJIC 2.20.1confers special deference to a child’s testimony and thereby reduces the prosecution’s burden of proving all charges beyond a reasonable doubt. The court held that the instruction was not ambiguous and that, in the context of other instructions given in this case, did not suggest that jurors ignore other factors relevant to credibility. The appellate court agreed, however, that the trial court erred in sentencing the defendant to consecutive terms for violations of section 269 under the mistaken belief that consecutive terms were mandated by section 667.6, subdivision (d). Thus, although the court rejected defendant’s argument that his sentence violated prohibitions against cruel and unusual punishment, as well as his argument that the imposition of consecutive terms violated Blakely v. Washington, the court nonetheless remanded for resentencing.