California, United States of America
The following excerpt is from People v. Martinez, 188 Cal.App.3d 19, 232 Cal.Rptr. 736 (Cal. App. 1986):
Since we find the convictions for three counts of lewd and lascivious conduct (counts one, three and five), and two counts of oral copulation with a child (counts two and six), to have been obtained in a trial free of prejudicial error we will affirm the judgment of conviction as to those counts. Since the jury was not properly instructed on the sodomy count (count four) we will reverse the judgment of conviction as to that count. The People may retry defendant on the sodomy charge, should they so choose. (Pen.Code, 1262.) In view of the reversal of the sodomy conviction defendant must be resentenced so that the court may reconsider its entire sentencing scheme. (People v. Savala (1983) 147 Cal.App.3d 63, 70.)
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