Opinion

An information charged defendant with 41 counts of lewd and lascivious acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)) and also alleged a prior conviction of Penal Code section 288. (Pen. Code, § 667.51, subd. (a).) The court granted defendant’s motion to set aside the information pursuant to Penal Code section 995 as to counts 10, 11, 15, 19, 22, 29, 30, 32, 36, 37, and 39 which would be encompassed within the remaining counts. The district attorney filed an amended information which charged defendant with the remaining 30 counts plus the prior felony conviction. Defendant waived jury trial and stipulated that the case would be submitted to the court on the preliminary hearing transcript, exhibit one (videocassette tape), and exhibit two (certified copy of defendant’s prior conviction). The court found defendant guilty of all 30 counts and found the prior felony conviction allegation to be true. The court sentenced defendant to a total of thirty-five years in state prison: six years for count 1, consecutive terms of two years each for counts 2 through 13, concurrent terms of six years each for counts 14 through 30, and a consecutive five-year term for the prior felony conviction. On appeal defendant contends counts 1, 6, 13, 17, 19, and 29 or 30 must be reversed because they constitute parts of a continuous course of conduct that was fragmented into multiple offenses.

Facts

After one of defendant’s neighbors asked defendant’s parole officer if defendant had a special parole condition not to be around children, the parole officer asked a sheriff’s detective to accompany him to defendant’s apartment. One of defendant’s parole conditions was that he was subject to search at any time. They searched defendant’s apartment and recovered videotapes, one of which, entitled “Puppy Love,” formed the basis for the charges in this case.

Frankie S., who was age 13 at the time he testified, lived in California with his mother from December 1987 to April 1988. He was 11 during this time period. Defendant was a friend with whom Frankie spent the night often. Frankie testified that defendant sexually molested him and sometimes videotaped the molestation.

The counts, based on the videotape of defendant molesting Frankie (victim), entitled “Puppy Love,” were as follows:

Counts 1 through 6 occurred in the bathtub while defendant was wearing glasses. Counts 7 through 12 occurred in the bathtub when defendant was not wearing glasses. Counts 13 through 21 occurred while defendant and the victim were in bed. Counts 22 through 28 occurred while defendant and the victim were on a blanket. Counts 29 through 30 occurred while the victim was asleep on a sofabed.

Discussion

The division of a single crime into multiple offenses is impermissible and the conviction as well as the punishment for the duplicate crimes must fall. (People v. Bevan (1989) 208 Cal.App.3d 393, 399 [ 256 Cal.Rptr. 233 ]; People v. Kirk (1990) 217 Cal.App.3d 1488, 1495 [ 267 Cal.Rptr. 126 ].) We reject the analytic straitjacket of categorizing sexual offenses as “defined” or “undefined” as adopted in People v. Bevan, supra, and People v. Kirk, supra. Instead, we follow the teaching of People v. Harrison, supra, 48 Cal.3d 321 . Harrison involved the commission of rapid, identical sex acts of digital penetration of the victim’s vagina. The court reasoned that a separate violation occurred every time there was a new, separate penetration, however slight, of the victim’s vagina. (Id., at p. 329.) The court further explained that “the Legislature has expressed no discernible objection to the steady increase in cases upholding multiple convictions based on rapid, identical sex acts.” (Id., at p.334.)

Defendant contends that counts 1 and 6, which involve kissing in the tub, are incidental to counts 2 through 5, which involve oral copulation, sodomy, and simulated sodomy in the tub. He asserts that counts 13, 17, and 19, which involve caressing, fondling, masturbating and kissing, are incidental to counts 14, 15, 16, and 18 which involve oral copulation, inserting a finger in the victim’s anus, and placing his tongue in the victim’s anus or licking of victim’s buttocks while in bed. Finally, defendant argues that count 29, touching and kissing victim’s groin while he was asleep, is the same incident as count 30, masturbating and kissing victim while he was asleep.

Although all the acts occurred during several episodes, such as in the tub, in the bed and on a sofa, the record clearly shows they were separate acts and not preparatory to or necessarily associated with any other charged act. Therefore, defendant was properly charged with and convicted of separate acts of lewd and lascivious conduct for counts 1, 6, 13, 17, 19, 29, and 30. (Cf. People v. Slobodion (1948) 31 Cal.2d 555, 563-564 [ 191 P.2d 1 ]; People v. Akers (1956) 143 Cal.App.2d 224, 226-228 [ 299 P.2d 398 ].)

Defendant further contends that if the defendant may be convicted of counts 1,6, 13, 17, 19, 29, and 30, any punishment for such undefined lewd acts must be stayed under Penal Code section 654 which provides: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .” We disagree. People v. Harrison, supra, 48 Cal.3d at pages 334-338 holds to the contrary if, as in this case, none of the lewd acts are necessary for or incidental to any other charged lewd act. (See People v. Blevins (1984) 158 Cal.App.3d 64, 72 [ 204 Cal.Rptr. 124 ].)

Disposition

The judgment is affirmed.

Timlin, J., and McDaniel, J., concurred.

Appellant’s petition for review by the Supreme Court was denied May 2, 1991.

Although Kirk was published nearly a year after People v. Harrison (1989) 48 Cal.3d 321 [ 256 Cal.Rptr. 401 , 768 P.2d 1078 ], it did not use the analytical approach of Harrison , instead analyzing under the “defined” and “undefined” approach. Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.