People v. Bothuel

WOODWORTH, J., Concurring and Dissenting.^*

I fully concur in the majority opinion so far as it affirms the judgment of conviction as to counts 1, 2, 4, 5, and 6.

As to counts 2 and 3, however, I believe the appellant is correct in contending there is no factual distinction between those counts. Although the information labels them “first incident” and “second incident” the evidence actually showed only one indivisible course of conduct in the hospital room.

Furthermore, due process of law requires the state to identify the acts upon which the prosecution is based. (People v. Van Hoek (1988) 200 Cal.App.3d 811, 818 [246 Cal.Rptr. 352].)

On count 2 there was a consecutive sentence and on count 3, concurrent. The conviction of count 3 is duplicative of count 2, and should be reversed.

* Assigned by the Chairperson of the Judicial Council.