P. v. Sanchez

Filed 1/22/10 P. v. Sanchez CA4/1

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Judgment reversed and remanded.

Hugo Sanchez entered a negotiated guilty plea to forcibly committing a lewd act on a child under 14 with substantial sexual conduct (Pen. Code[1]  288, subd. (b)(1), 1203.066, subd. (a)(8)) and to committing a lewd act on a child under 14 ( 288, subd. (a)). Consistent with the terms of the plea agreement, the court sentenced Sanchez to nine years in prison: the six-year middle term for the forcible lewd act and a consecutive three-year lower term for the separate lewd act. Sanchez appeals, contending the imposition of a full-strength consecutive term for the lewd act was unauthorized. We agree and reverse and remand for resentencing.

BACKGROUND

Between May 3, 2006, and September 24, 2007, Sanchez masturbated on his niece's nude body, using force. In count 11 of the information this conduct was alleged as the forcible commission of a lewd act on a child under 14 in violation of sections 288, subdivision (b)(1), and 1203.066, subdivision (a)(8). On October 30, 2007, Sanchez touched his niece's vagina with his penis. In count 1 of the information this conduct was alleged as the commission of a lewd act on a child under 14 in violation of section 288, subdivision (a).

Sanchez's plea bargain provided for a nine-year lid. The prosecutor requested a sentence consisting of the six-year middle term on count 11 and a consecutive three-year lower term on count one, for a total of nine years. Sanchez asked for concurrent lower terms or concurrent middle terms. Citing section 667.6, subdivision (d), Sanchez argued that if the court wished to impose a longer sentence, it could choose the six-year middle term on count 11 and a consecutive two years (one-third the middle term) on count one, for a total of eight years. In imposing a full-strength consecutive sentence on count one, the court cited section 667.6, subdivision (d).

Two days after sentencing, Sanchez filed a motion for reconsideration. He argued that count 1 was not an offense listed in section 667.6, subdivision (e), so the consecutive sentence on that count should have been two years (one-third the middle term), not the full three-year lower term. The prosecutor argued that section 667.6, subdivision (c), authorized the sentence. The court denied Sanchez's motion, noting the sentence was proper under section 667.6, subdivision (c), rather than section 667.6, subdivision (d).

DISCUSSION

Section 667.6, subdivision (c), allows "a full, separate, and consecutive term . . .  for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e)." Section 667.6, subdivision (d), states that "[a] full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions." While the forcible lewd act described in section 288, subdivision (b), is specified in section 667.6, subdivision (e) ( 667.6, subd. (e)(5)), the lewd act described in section 288, subdivision (a), is not ( 667.6, subd. (e)).

As Sanchez points out, under the literal terms of section 667.6 subdivisions (c) and (d), he cannot be sentenced to a full, separate and consecutive term on the section 288, subdivision (a) offense set forth in count 1. "While defendants whose crimes involve separate victims or the same victim on separate occasions are not subject to subdivision (c)'s discretionary sentencing scheme, they are included in subdivision (d)'s mandatory sentencing scheme in cases where a defendant is convicted of more than one subdivision (e) offense. [Citations.] Because, however, subdivision (d)'s mandatory sentencing scheme applies only where a defendant is convicted of more than one such offense [citations], defendants whose crimes involve separate victims or the same victim on separate occasions, but who are convicted of only one offense enumerated in subdivision (e), [are] not subject to a full, consecutive sentence if subdivision (c) is given its literal meaning." (People v. Goodliffe (2009) 177 Cal.App.4th 723, 730, fn. omitted.)

Like the court in People v. Goodliffe, we do not believe there is any reasoned manner by which we may avoid the literal meaning of section 667.6, subdivisions (c) and (d), as it is currently written. Prior to the enactment of Jessica's Law by the voters in 2006, subdivision (c) permitted imposition of consecutive terms "whether or not the crimes were committed during the same transaction." However, this phrase was removed by the voters when they adopted Jessica's Law and the following sentence was added: "A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e)." ( 667.6, subd. (c); see Official Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83,  11, p. 130.) This addition , considered in light of the Supreme's Court's opinion in People v. Jones (1988) 46 Cal.3d 585, 589, is, as the court in People v. Goodliffe found, fairly conclusive proof that deletion of the "whether or not" language in subdivision was intentional. "In Jones, supra, 46 Cal.3d at page 589, the Supreme Court held that 'a single conviction of an enumerated sex offense is sufficient to trigger the sentencing court's discretion under . . . section 667.6, subdivision (c), to impose a full, consecutive sentence for that conviction.' At the time the defendant in that case was sentenced (before Jessica's Law), section 667.6, subdivision (c), authorized a trial court to impose 'a full, separate, and consecutive term . . . for each violation of [certain enumerated sex offenses] whether or not the crimes were committed during a single transaction.' [Citation.] In holding that a single conviction of an enumerated sex offense was sufficient to trigger the sentencing court's discretion under subdivision (c), the court relied substantially on the 'whether or not' language, explaining that 'it is at once apparent that the "whether or not" language was intended to broaden the scope of subdivision (c)'s effect not to restrict it.' [Citation.] 'The entire "whether or not" clause is to be read as the Legislature's shorthand pronouncement that the court may discretionarily impose a full, consecutive sentence for each [enumerated sex offense] conviction, irrespective of whether the violent sex crime and the other crime making section 1170.1 potentially applicable were committed "during a single transaction." ' [Citation.]

"While we do not know why the 'whether or not' language was deleted, we do know that it was not inadvertent because of the addition of the following sentence: 'A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e).' ( 667.6, subd. (c).) Given the court's holding in Jones, the only explanation for this addition was the removal of the 'whether or not' language. The drafters plainly were concerned that without the 'whether or not' language, subdivision (c) might be interpreted as applicable only where a defendant is convicted of more than the offenses specified in subdivision (e). We decline to read back into the statute language that was intentionally removed." (People v. Goodliffe, supra, 177 Cal.App.4th at pp. 731-732, fns. omitted.)

Respondent does not challenge Sanchez's contention with respect to application of section 667.6, subdivisions (c) and (d), and concedes that the judgment must be reversed. However, respondent notes that the upper term on count 11 is nine years and that on remand a nine-year term could be imposed on a finding that aggravating circumstances warranted it without resort to section 667.6.[2]

DISPOSITION

The judgment is reversed and remanded for resentencing. On remand the trial court may consider respondent's contention that a nine-year term should be imposed on count 11.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

McDONALD, J.

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[1] All further statutory references are to the Penal Code.

[2] We note Sanchez did not obtain a certificate of probable cause. However, Sanchez does not challenge the plea. Instead he challenges the manner in which the court exercised its discretion at sentencing following the plea. Thus no certificate of probable cause is required. (People v. French (2008) 43 Cal.4th 36, 43-48; People v. Buttram (2003) 30 Cal.4th 773.)