P. v. Milligan

Filed 2/13/08 P. v. Milligan CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Pursuant to a negotiated disposition, appellant pleaded no contest to one count of lewd act on a child and one count of oral copulation of a child. (Pen. Code,  288, subd. (a), 288a, subd. (c)(1).) The trial court sentenced appellant to a state prison term of 12 years. Appellant contends, "Because the trial court failed to exercise its discretion in sentencing appellant to a full term consecutive sentence the case must be reversed and remanded for re-sentencing." We agree.

Background

In 2001, the victim in this case reported to a high school teacher that in 1995, when she was nine years old, her family visited California for a week and that during this visit she was sexually molested by appellant, her uncle. Appellant later admitted that he had molested the victim. He said that did not remember doing all that he was accused of but that he was "whacked out of his head on methamphetamine" during this time period. In 2002, appellant was charged with three counts of sexual conduct with a child, including, as count 1, a charge of forcible oral copulation on a child. Before the preliminary examination, appellant entered a no contest plea to count 2, lewd act on a child and count 3, oral copulation of a child. In return for this plea, count 1 was dismissed.

The first probation report recommended a state prison sentence of eight years, representing the midterm of six years on count 2 and, on count 3, one-third of the midterm of six years, that is, two years. An amended probation report recommended a six-year prison sentence, representing the lower term of three years on count 2 and, as to count 3, a lower term of three years to be served as a full term consecutive sentence. The trial court said, "Just for the record, the changes reflect Penal Code section 667.6(d), which provides for consecutive full-term imposition with respect to Count Two, and that's why that was changed, is my understanding."

After hearing argument from counsel as to the appropriate sentence, the court said, "I'm, of course, going to deny probation as inappropriate at this time given the nature of the alleged wrongdoing. And looking at the mitigation factors and the aggravation factors, I find it hard to come up with a lot to justify the low term." The trial court sentenced appellant to the midterm of six years on count 2 and, on count 3, citing Penal Code section 667.6, subdivision (d), the full term consecutive mid term of six years, for a total sentence of 12 years.

Discussion

Appellant contends, "The trial court improperly relied on the mandatory language of [Penal Code] section 667.6, subdivision (d), in sentencing appellant to a full-term consecutive sentence." He argues, "The trial court could only properly sentence appellant to a full term consecutive sentence under the discretionary language of subdivision (c)." Appellant further argues, "The trial court's failure to state its reasons for imposing a full term consecutive sentence pursuant to section 667.6, subd. (c) requires that the case be reversed and remanded." Appellant also contends that defense counsel's failure to object to this erroneous sentencing choice constituted ineffective assistance that is cognizable on direct appeal.

At the time appellant's offenses were committed, Penal Code section 667.6, subdivision (d), provided in pertinent part for mandatory full term consecutive sentencing for "sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person if the crimes involve separate victims or involve the same victim on separate occasions." (Stats. 1994, ch. 1188,  7, p. 7188.) Subdivision (d) of section 667.6 is not applicable in this case. It is well-settled law that subdivision (d) "constitutes a mandatory consecutive sentencing scheme applicable only when a defendant has been convicted of two or more [enumerated sexual offenses]." (People v. Jones (1988) 46 Cal.3d 585, 595.) Here, although count 3 qualified under this subdivision, count 2, a violation of Penal Code section 288, subdivision (a), was not one of the enumerated sexual offenses.

Respondent agrees stating, "Because only one of the two offenses qualified as an [enumerated sexual offense], the trial court erred in citing section 667.6, subdivision (d), as its reason for imposing a full consecutive sentence on count three. The trial court has discretion to sentence appellant to full, consecutive sentences under section 667.6, subdivision (c). Accordingly, we agree that the matter must be remanded for resentencing." (Citations and footnotes omitted.) We note that consecutive sentencing under section Penal Code 667.6, subdivision (c), requires a statement of reasons from the trial court for this sentencing choice. (People v. Irvin (1996) 43 Cal.App.4th 1063, 1072.) Because we are remanding for resentencing, we do not reach appellant's argument that he received ineffective assistance of counsel.

Disposition

The judgment is reversed and the matter is remanded for resentencing.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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