Vargas

Introduction

An information was filed on December 30, 1986, charging defendant, Manuel Vargas, with 10 counts of lewd and lascivious conduct (Pen. Code, *834 § 288, subd. (b)) on his stepdaughter, J. The 10 counts consisted of 1 count for each month of 1986 from January through October. Defendant was tried on April 6 and 7, 1987. His motion for judgment of acquittal pursuant to Penal Code section 1118.1 was denied, and the jury found defendant guilty of each count. The jury further found defendant occupied a position of special trust with J., pursuant to Penal Code section 1203.066, subdivision (a)(9), as to each count.

The trial court imposed the midterm of six years for each count for a total sentence of sixty years. A timely notice of appeal followed.

Facts

The present case involves various incidents of sexual molestation committed by defendant against his stepdaughter, J. J. was 12 to 13 years old when the acts occurred. J. testified she was seven years old the first time defendant had sexual intercourse with her. She testified she was frightened and attempted to push defendant off of her. She also screamed, but defendant put a handkerchief in her mouth. Defendant…

I concur. I write separately only to state expressly my agreement with Justice Ardaiz’s analysis and conclusion that retrial should not be barred. I recognize this court’s recent opinions in People v. Luna (1988) 204 Cal.App.3d 726 [ 250 Cal.Rptr. 878 ] and People v. Atkins (1988) 203 Cal.App.3d 15 [ 249 Cal.Rptr. 863 ] compel the conclusion that retrial is barred as to counts I, II, III, IV, VI and VII. Although I concurred in the majority opinion in Luna , after careful reconsideration, I join Justice Ardaiz in his criticism of both Luna and Atkins . I must also express my dissatisfaction with any judicial resolution that awards a multiple offender with an acquittal for lack of specific “distinguishing” proof, and convicts a one-time offender even though the victim is uncertain when the offense took place. Although compelled to reach such a result, we cannot justify it on a logical basis.

If a vendor of newspapers testifies in court that he was robbed three times by the defendant, but cannot identify the specific days or identify any distinguishing characteristics of the robberies, except that they were all the same, would the same result apply? Would it be enough for the…

This court has earlier observed: “. . . in view of Castro and Williams, and the fact neither the Legislature nor our Supreme Court has declared these sex crimes in continuum to constitute a single offense, we are constrained by these Supreme Court cases, aged as they may be.” (People v. Luna (1988) 204 Cal.App.3d 726, 746 [ 250 Cal.Rptr. 878 ].)

Accordingly, for the reasons set forth in People v. Castro (1901) 133 Cal. 11 [ 65 P. 13 ], People v. Williams (1901) 133 Cal. 165 , and this court’s opinions in People v. Van Hoek (1988) 200 Cal.App.3d 811 [ 246 Cal.Rptr. 352 ] (review den. Aug. 18, 1988), People v. Luna, supra, 204 Cal.App.3d 726 and People v. Atkins (1988) 203 Cal.App.3d 15 [ 249 Cal.Rptr. 863 ], I concur in the judgment of reversal and remand for retrial only on counts X, IX, VIII and V.

A petition for a rehearing was denied January 12, 1989, and respondent’s petition for review by the Supreme Court was denied April 5, 1989. Lucas, C. J., was of the opinion that the petition should be granted.

Assigned by the Chairperson of the Judicial Council.

[Opinion certified for partial publication. [*] ]

OPINION

ARDAIZ, J. —

An information was filed on December 30, 1986, charging defendant, Manuel Vargas, with 10 counts of lewd and lascivious conduct (Pen. Code, § 288, subd. (b)) on his stepdaughter, J. The 10 counts consisted of 1 count for each month of 1986 from January through October. Defendant was tried on April 6 and 7, 1987. His motion for judgment of acquittal pursuant to Penal Code section 1118.1 was denied, and the jury found defendant guilty of each count. The jury further found defendant occupied a position of special trust with J., pursuant to Penal Code section 1203.066, subdivision (a)(9), as to each count.

The trial court imposed the midterm of six years for each count for a total sentence of sixty years. A timely notice of appeal followed.

The present case involves various incidents of sexual molestation committed by defendant against his stepdaughter, J.J. was 12 to 13 years old when the acts occurred. J. testified she was seven years old the first time defendant had sexual intercourse with her. She testified she was frightened and attempted to push defendant off of her. She also screamed, but defendant put…