Can a defendant be convicted of aggravated sexual assault of a child in violation of section 269, subdivision (a)(5) of the California Criminal Code?

Defendant contends, and the People agree, that defendant cannot be convicted of both aggravated sexual assault of a child in violation of section 269, subdivision (a)(5) (count 1) and also continuous sexual abuse in violation of section 288.5 (count 3), because both crimes were found to have occurred during the same time period. ( 288,5, subd. (c); People v. Johnson (2002) 28 Cal.4th 240, 248.) But the parties do not agree on the proper remedy. Defendant contends the section 269, subdivision (a)(5) conviction should be dismissed in accordance with the "special over the general" rule. The People counter that the section 288.5 conviction should be dismissed because it carries a less severe sentence.