Scott

Defendant, an ex-felon, repeatedly molested his girlfriend’s 11-year-old daughter. The evidence revealed that he had sexual intercourse with the girl during each unlawful encounter. On some of these occasions, he also either orally copulated or sexually fondled the victim. Defendant was convicted under the lewd conduct statute for each act of sexual intercourse, oral copulation, and fondling charged and disclosed at trial. (Pen. Code, § 288.) 1

The case raises both guilt and sentencing issues. First, we conclude the Court of Appeal erred in striking the lewd conduct convictions based on the acts of fondling. Unlike the court below, we reject defendant’s broad suggestion that fondling activities are necessarily “indivisible” from other sex crimes committed on the same occasion and that the number of convictions is limited to the number of nonfondling crimes. Consistent with the general principles set forth in People v. Harrison (1989) 48 Cal.3d 321 [ 256 Cal.Rptr. 401 , 768 P.2d 1078 ] (Harrison), each distinct lewd act can result in a separate violation of section 288.

Second, we address a sentencing issue that can arise in any felony case. In People v. Welch (1993) 5…

I join the majority in upholding defendant’s convictions on the two counts of lewd conduct that were based on acts of fondling his girlfriend’s 11-year-old daughter with “the intent of arousing, appealing to, or gratifying the lust or passions or sexual désires of [himself] or of the child . . . .” (Pen. Code, § 288, subd. (a).) 1 This result follows from our decision in People v. Harrison (1989) 48 Cal.3d 321, 324 [ 256 Cal.Rptr. 401 , 768 P.2d 1078 ], which holds that in a continuous sexual assault on an adult victim, each distinct sex act may constitute a separate statutory violation. As the majority concludes here, the same is true in the case of a child victim: “Each individual act that meets the requirements of section 288 can result in a ‘new and separate’ statutory violation.” (Maj. opn., ante, at pp. 346-347.) I also agree with the majority that defendant has not waived his claims of sentencing error and that the Court of Appeal should have considered those claims. Thus I join fully in the dispositional order remanding this case to the Court of Appeal and directing *359 it to reinstate defendant’s convictions on the two counts of lewd conduct based on fondling and to…