Full Opinion

Filed 11/3/26 P. v. Olmos CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F089692 Plaintiff and Respondent, (Super. Ct. No. CR-23-002346) v. FILEMON GARCIA OLMOS, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Stanislaus County. Valli K. Israels, Judge. Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Defendant Filemon Garcia Olmos was convicted of eight specific sexual offense charges against his minor stepdaughter, as well as one count of continuous sexual abuse of a child under age 14. On appeal, Olmos argues that because the time periods for the specific sexual offense charges overlapped with the time period of the continuous sexual abuse of a child charge, he could not be convicted of both the specific sexual offenses and continuous sexual abuse. Olmos asks us to remand the matter for the trial court to determine whether to reverse the convictions on the specific sexual offenses or the conviction for continuous sexual abuse of a child. Olmos also argues that the court miscalculated his presentence custody credits. The People agree that it was improper for Olmos to be convicted of both the specific sexual offenses and continuous sexual abuse of a child. However, the People argue we should reverse the conviction for continuous sexual abuse of a child and otherwise leave the sentence intact. As to the argument that the trial court miscalculated Olmos’s custody credits, the People appear to agree. We reverse Olmos’s conviction for continuous sexual abuse of a child and correct the error in the calculation of custody credits. In all other respects, the judgment is affirmed. PROCEDURAL HISTORY On November 6, 2024, the District Attorney of Stanislaus County filed a first amended information charging Olmos with sexual intercourse with a child 10 years old or younger (Pen. Code, 1 § 288.7, subd. (a); count 1); aggravated sexual assault of a child under age 14 (forcible rape) (§ 269, subd. (a)(1); count 2); aggravated sexual assault of a child under age 14 (forcible sodomy) (§ 269, subd. (a)(3); count 3); aggravated sexual assault of a child under age 14 (forcible oral copulation) (§ 269, subd. (a)(4); count 4); aggravated sexual assault of a child under age 14 (forcible sexual penetration) (§ 269, subd. (a)(5); count 5); continuous sexual abuse of a child under age 14 (§ 288.5, subd. (a); count 6); oral copulation of a child under age 14 (§ 287, subd. (c)(1); count 7); 1 Undesignated statutory references are to the Penal Code. 2. sodomy of a child under age 14 (§ 286, subd. (c)(1); count 8); and sexual penetration by a foreign object of a child under age 14 (§ 289, subd. (j); count 9). As to all counts, the first amended information also alleged two aggravating factors. On November 12, 2024, the jury found Olmos guilty on all counts. In a bifurcated proceeding, the jury found true both aggravating factors on all counts. On April 11, 2025, the trial court sentenced Olmos. The court imposed an aggregate term of 85 years to life, consisting of: on count 1, 25 years to life; on count 2, 15 years to life; on count 3, 15 years to life; on count 4, 15 years to life; and on count 5, 15 years to life. The court also imposed but stayed terms on counts 6, 7, 8, and 9 pursuant to section 654. Finally, the court awarded Olmos a total of 829 days of custody credits. On April 16, 2025, Olmos timely filed a notice of appeal. FACTUAL SUMMARY Jane Doe testified that she was born in February of 2010. When she was seven years old and living in New York, Olmos, her stepfather, touched her thighs while she was using the bathroom. When Jane Doe was around eight years old and living in Ceres, Olmos touched her chest. When she was 10 years old (or younger), Olmos began putting his penis into her vagina. Olmos would pull her into the bedroom he shared with her mother and tell her that he wanted to touch her. Jane Doe would tell him to stop or that she did not want to, but he said he did not care and was going to touch her. She would also cry and tell him that it hurt, but he did not stop. This happened multiple times per week. Sometimes it would happen in her room, and once it happened in her older brother’s room. When it happened in her room, he would walk in, forcefully take her clothes off, and start touching her. Additionally, on one occasion, he inserted a pink object into Jane Doe’s anus. On about two occasions, he inserted his penis into her anus. On more than five occasions he 3. grabbed her hair, put her on her knees, and put her mouth on his penis. And on occasion, he told her that he would hurt her if she told anyone. The last incident occurred when she was around 13 years old. On March 16, 2023, Olmos, who was 36 years old at the time, was interviewed by law enforcement officers. He eventually admitted to having sexual intercourse with Jane Doe approximately three times. According to Olmos, each time she initially said she did not want to, but she eventually agreed. DISCUSSION I. Olmos Cannot be Convicted of the Specific Sexual Offense Charges and Continuous Sexual Abuse of a Child, and we Reverse his Continuous Sexual Abuse of a Child Conviction The parties agree, as do we, that because the time periods for each specific sexual offense charge overlapped with the time period of the continuous sexual abuse of a child charge, Olmos cannot be convicted of both the specific sexual offenses and continuous sexual abuse of a child. Pursuant to section 288.5, subdivision (a), “[a]ny person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of [s]ection 1203.066, or three or more acts of lewd or lascivious conduct, as defined in [s]ection 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child[.]” However, pursuant to section 288.5, subdivision (c), “[n]o other act of substantial sexual conduct, as defined in subdivision (b) of [s]ection 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in [s]ection 288, involving the same victim may be charged in the same 4. proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative.” This subdivision precludes a defendant from being convicted of both a specific sexual offense charge and a continuous sexual abuse of a child charge when the charges pertain to the same victim over the same time period. (People v. Johnson (2002) 28 Cal.4th 240, 248; see also People v. Rojas (2015) 237 Cal.App.4th 1298, 1308 [“continuous sexual abuse in violation of section 288.5, subdivision (a) and any discrete sexual offense committed against the same victim within the same time period must be charged in the alternative. [Citations.] A defendant may be convicted of either offense, but not both.”].) Here, Olmos was convicted of eight specific sexual offense charges and one charge of continuous sexual abuse of a child. Because the time period for each specific sexual offense conviction overlaps with the time period for the continuous sexual abuse of a child conviction, his convictions are inconsistent with section 288.5, subdivision (c). The question then becomes which conviction(s) must be reversed. Olmos points out that multiple courts, including ours in People v. Patton (2024) 101 Cal.App.5th 922 (Patton), have held that the proper remedy is “to leave [a defendant] ‘standing convicted of the alternative offenses that are most commensurate with his culpability,’ ” which ordinarily means vacating the conviction(s) with the lesser punishment. However, he argues that we should follow People v. Martinez (2024) 105 Cal.App.5th 178 (Martinez), which remanded the matter for the trial court to determine which conviction(s) should be reversed. (Id. at p. 188.) In Martinez, the defendant was convicted of four specific sexual offenses as well as continuous sexual abuse of a child. (Martinez, supra, 105 Cal.App.5th at p. 183.) He was sentenced to an aggregate term of 36 years and four months to life, which consisted of 24 years and four months on the specific sexual offenses, and 12 years (the middle term) for continuous sexual abuse of a child. (Id. at pp. 183–184.) 5. The Martinez court held that the defendant’s convictions violated section 288.5, subdivision (c). (Martinez, supra, 105 Cal.App.5th at p. 184.) As to the appropriate remedy, it disagreed with Patton “and other such cases because of the nuances in [the] matter.” (Id. at p. 188). Specifically, in Martinez, the trial court had exercised its discretion and imposed the middle term on count 3. (Id. at p. 187.) Additionally, the jury “asked six questions during deliberations seeking clarification of different issues” and “asked for readback of witnesses.” (Id. at p. 188.) Accordingly, the court held that “the trial judge who also heard the evidence, watched the witnesses testify, and observed the witnesses’ demeanor, is in the best position to determine which offense or offenses would ‘leave appellant standing convicted of the alternative offenses that are most commensurate with his culpability.’ ” (Ibid.) Conversely, in Patton, our court reversed the conviction for continuous sexual abuse of a child, which carried the lesser punishment. (Patton, supra, 101 Cal.App.5th at p. 931.) Our court followed People v. Torres (2002) 102 Cal.App.4th 1053 (Torres) and held that “where a conviction must be vacated for violating section 288.5, subdivision (c), the defendant shall be left ‘standing convicted of the alternative offenses that are most commensurate with [his] culpability.’ [Citations.] Generally, this means ‘upholding whichever conviction[s] resulted in the greater aggregate penalty and vacating the less serious count[s].’ ” (Patton, at p. 931.) This holding was based on the purpose of section 288.5. (Id. at p. 930.) “The intent of the Legislature in enacting section 288.5 was ‘to provide additional protection for children subjected to continuing sexual abuse and certain punishment.’ ” (Torres, p. 1058.) “ ‘[T]o conclude that the failure to plead these offenses in the alternative compelled the court to convict only on the section 288.5 offense would be “anomalous” because “section 288.5, adopted to prevent child molesters from evading conviction, could be used by those molesters to circumvent … convictions with more severe penalties and prior strike consequences than available … under section 288.5.” ’ ” (Patton, at p. 930.) 6. We agree with the reasoning and holdings in Patton and Torres. It would be anomalous to allow Olmos to utilize section 288.5 to circumvent his convictions for sexual intercourse with a child 10 years old or younger, forcible rape of a child, forcible sodomy of a child, forcible oral copulation of a child, and forcible sexual penetration of a child. These convictions resulted in an aggregate term of 85 years to life, whereas, at most, his conviction for continuous sexual abuse of a child would result in a term of 16 years (§ 288.5, subd. (a)). Accordingly, we will reverse the conviction with the lesser punishment, continuous sexual abuse of a child. While we would ordinarily remand for a full resentencing, “where ‘the trial court imposed the maximum possible sentence’ and ‘there are no sentencing choices to restructure, it is appropriate for us to modify the sentence on appeal.’ ” (Patton, supra, 101 Cal.App.5th at p. 931.) Here, the court imposed the maximum possible sentence, which consisted of the life terms dictated by sections 288.7, subdivision (a) and 269, subdivision (b), to be served consecutively. Accordingly, we will modify the sentence on appeal. II. The Trial Court Miscalculated Olmos’s Presentence Custody Credits The parties agree, as do we, that the trial court miscalculated Olmos’s presentence custody credits. Based on the probation report, Olmos was arrested on March 16, 2023, and it appears he remained in custody until his sentencing on April 11, 2025. Therefore, he is entitled to 758 days of actual custody credits plus 15 percent pursuant to section 2933.1 (113 additional days), for a total of 871 days of custody credits. As the court only awarded a total of 829 days of custody credits, we will direct the court to correct the abstract of judgment. DISPOSITION Olmos’s conviction for continuous sexual abuse of a child under age 14 (count 6) is reversed. The trial court is directed to prepare an amended abstract of judgment 7. striking the sentence for count 6 and reflecting that Olmos has 871 days of presentence custody credits. The court is also directed to forward a certified copy of the amended abstract of judgment to all relevant authorities. In all other respects, the judgment is affirmed. SNAUFFER, J. WE CONCUR: DETJEN, Acting P. J. MEEHAN, J. 8.