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Name: People v. Johnson
Case #: B139943
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 04/16/2001
Subsequent History: Rev. granted 7/25/01 as S097857

When the prosecution fails to charge a defendant in the alternative as required by statute, the court errs in staying, rather than striking individual convictions. Here appellant was charged and convicted of continuous sexual abuse (Pen. Code, sec. 288.5) and individual sexual felonies which occurred during the same alleged time period. Pursuant to Penal Code section 288.5, subdivision (c), such charges must be alleged in the alternative. This subdivision provides a clear benefit to the defendant. To comply with subdivision (c), the prosecutor may either charge continuous sexual abuse and the individual acts of abuse occurring during the same time period in the alternative; or charge continuous sexual abuse and the individual acts of abuse together (i.e., not in the alternative) when the acts occur during different time periods. Furthermore, “staying” the convictions for the individual counts does not remove the error. This holding is at odds with People v. Valdez (1994) 23 Cal.App.4th 46, which this court found unpersuasive because it ignored the plain meaning of subdivision (c). Appellant was convicted of second degree murder. The jury was instructed on the elements of first and second degree murder, and on voluntary and involuntary manslaughter based on self defense and imperfect self defense. Since the offense took place prior to June 2, 2000, the trial court instructed on the basis of the law as it existed prior to Lasko and Blakely, which required an intent to kill for voluntary manslaughter. On appeal, appellant contended that the trial court erred when it failed to instruct the jury that voluntary manslaughter does not require an intent to kill, and that the error was prejudicial since the jury found appellant guilty of ssecond degree murder, which must have been based on a finding that appellant acted with implied malice and without intent to kill. The appellate court here affirmed. In cases involving conduct committed prior to June 2, 2000, notwithstanding Lasko, the jury must beinstructed in accordance with Blakeley than an unintentional killing in unreasonable self-defense is involuntary manslaughter, not voluntary manslaughter. Therefore, the jury was properly instructed. Nor did the instruction deny appellant his right to consideration of the imperfect self-defense theory. The instructions told the jury that killing in unreasonable self-defense was not murder. By finding him guilty of second degree murder, the jury clearly rejected the defense.