Can a defendant appeal against a conviction for both forcible lewd conduct and lewd conduct under section 288 of the California Penal Code?

California, United States of America


The following excerpt is from People v. Ward, 188 Cal.App.3d 459, 233 Cal.Rptr. 477 (Cal. App. 1986):

Defendant contends the trial court erred in convicting him of both lewd conduct ( 288, subd. (a)), and forcible lewd conduct ( 288, subd. (b)), for each lewd act of sexual intercourse he committed. 7 According to defendant, lewd conduct under section 288, subdivision (a), is a lesser or necessarily included offense of section 288, subdivision (b). (People v. Greer (1947) 30 Cal.2d 589, 596, 184 P.2d 512.) Alternatively and similarly pursuant to People v. Greer, at pages 601-604, 184 P.2d 152, defendant argues that because section 288 specifically includes acts constituting other crimes mentioned in Part 1 of the Penal Code, he could not be convicted of both a violation of section 288, subdivision (a), and section 288, subdivision (b), based on the same conduct.

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