Martinez

I. INTRODUCTION

We address three issues in this case: (1) What remedy to impose when a jury returns verdicts on all charges against a defendant because a trial court failed to instruct the jury that the charges before it were in the alternative; (2) Whether sufficient evidence supported Martinez’s conviction on count 5 for lewd acts by force, fear, or duress; and (3) Whether the trial court abused its discretion when answering the jury’s question regarding the meaning of “sexual penetration” using specific anatomical language not discussed during trial. On the first issue we asked for supplemental briefing. The parties agree, as do we, that the court’s omission of instructions explaining charges in the alternative resulted in prejudicial error requiring remand. Where the sides disagree is what directive to give the trial court when the case is returned to it. Appellant says the court’s mistake requires us to order a new trial, or at a minimum, return the matter to the trial court for further hearing to determine on what count(s) to sentence. The respondent (the People) maintains that we should order the trial court to hold a hearing to determine on which count(s) to vacate the…