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Name: People v. Goldman
Case #: C069884
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 04/24/2014

Sex offender who failed to demur to overlapping charges regarding same victim forfeited claim on appeal. Goldman molested his nieces C. and B. over a period of several years. He was convicted of several sex offenses, including one count of lewd conduct (Pen. Code, § 288, subd. (a); count 1) on B. and one count of continuous sexual abuse (Pen. Code, § 288.5, subd. (a); count 2) on B. On appeal, he contended that his conviction for count 1 had to be vacated because the time period that the information alleged overlapped with the period of time alleged in count 2 for continuous sexual abuse of the same victim by one month. Held: Affirmed. Although section 288.5 precludes the prosecution from charging both continuous sexual abuse and discrete sexual offenses against the same victim for the same time period unless the discrete sex offenses are charged in the alternative, a defendant must demur to preserve the issue of improper charging. The appellate court found that Goldman forfeited his claim because he did not demur to the information. The appellate court also rejected Goldman’s argument that he received ineffective assistance of counsel because his trial attorney failed to demur to the overlapping charges. If Goldman had demurred, a slight amendment to the information would have corrected the problem. Since it was not reasonably probable that Goldman would have received a better result if his defense attorney had demurred to the complaint, the ineffective assistance of counsel claim failed. The court also rejected Goldman’s claim that the court improperly admitted sexually explicit text messages and photographs that he sent to one of the victims.