Filed 9/29/17 P. v. Tenner CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge. Reversed and remanded for resentencing.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.

In this case, defendant and appellant Kenneth D. Tenner was convicted of rape (count 1), sexual penetration by force (count 2), and attempted forcible oral copulation (count 3). The trial court sentenced Tenner to the upper term of eight years on count 1, plus a one-year enhancement because the victim was elderly. The trial court stayed sentencing on count 2 and, relying on Penal Code[1] sections 667.6 subdivision (c) and 667.9 subdivision (a), imposed a consecutive term of four years, plus a one-year elderly victim enhancement, on count 3.

The parties agree attempted oral copulation is not a crime subject to the alternative sentencing provided by section 667.6, subdivision (c), and will not support an elderly victim enhancement under section 667.9, subdivision (a). Because the record shows the trial court relied on section 667.6, subdivision (c) in imposing a full-strength consecutive sentence on Tenner's attempted forcible oral copulation conviction, the judgment must be reversed. Because correction of this error might impact the trial court's exercise of discretion with respect to other sentencing choices, and in particular its apparent use of the sentence on count 1 as the primary term, we reverse and remand to the trial court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Early in the evening of January 4, 2003, Tenner entered the apartment where 79-year-old Helen Lizel lived by herself. Lizel was taking a nap in her bedroom and woke up and found Tenner on top of her. Although she struggled and attempted to resist him, Tenner raped Lizel.

Alberta Alto-Misita was Lizel's next door neighbor and part-time caregiver. Alto-Misita went to check on Lizel on the evening Lizel was raped and saw Tenner on Lizel's bed with his genital area in front of Lizel's face. According to Alto-Misita, Tenner "was kneeling down and it looked like she was giving him oral sex." Apparently misunderstanding what was happening, Alto-Misita left the bedroom and closed the door. Tenner came out of Lizel's bedroom and quickly left; Lizel then emerged from her room naked from the waist down, crying and shaking.

Lizel told Alto-Misita that Tenner had just raped her and Alto-Misita called 911. After being interviewed by police, Lizel was taken to a hospital for a medical examination. Although DNA swabs were taken from Lizel's mouth, genitals and clothing, and semen was found on her external genitalia, no matching DNA was discovered in any law enforcement records. The assault left Lizel depressed, and she died four years later, in 2007.

In 2015, Tenner's DNA profile––which had been obtained in an unrelated case––was matched with DNA found on Lizel. Tenner was arrested and charged with forcible rape (§ 261, subd. (a)(2); count 1), sexual penetration by force (§ 289, subd. (a); count 2), and forcible oral copulation (§ 288a, subd. (c); count 3). The information alleged that Tenner committed counts 1 through 3 during a burglary (§ 667.61, subds. (b), (c) & (e)) with the intent to commit the charged sex offenses (§ 667.61, subds. (a), (c) & (d)). It was further alleged the victim in all three counts was over 65 years old within the meaning of section 667.9, subdivision (a).

A jury convicted Tenner of forcible rape (count 1), sexual penetration by force (count 2), and attempted forcible oral copulation (count 3), and found true the elderly victim enhancement allegations. However, the jury acquitted Tenner of forcible oral copulation in count 3 and found all of the burglary related enhancement allegations to be not true.

As we indicated at the outset, the trial court sentenced Tenner to a total term of 14 years in prison. The abstract of judgment, consistent with the recommendation of the probation department, and the trial court's verbal pronouncement of sentence, imposes the upper term of eight years on count 1, plus a one-year elder enhancement, stays sentencing on count 2, and provides for a consecutive midterm sentence of four years plus a one-year elder victim enhancement on count 3, Tenner's conviction for attempted oral copulation. Thus, the face of the abstract treats the sentence on count 1 as the principal term and the sentence on count 3 as a consecutive, but full-strength subordinate term.

DISCUSSION

In general, where a defendant has been convicted of multiple offenses, sentencing is controlled by the provisions of section 1170.1; however, when a defendant has committed a sexually violent crime enumerated in section 667.6, subdivision (e), section 667.6, subdivision (c) provides a harsher sentencing scheme. Under section 1170.1, subdivision (a), full terms are imposed on the conviction which carries the longest sentence and consecutive subordinate terms of one-third the midterm may be imposed on remaining convictions; in contrast, under section 667.6, subdivision (c), sentences for the enumerated offenses may be imposed consecutively to any other term and the sentencing court may impose the prescribed full upper, mid or lower term. (See People v. Belmontes (1983) 34 Cal.3d 335, 344–346 (Belmontes).)

The Attorney General concedes that sentencing on count 3 was not appropriate under section 667.6, subdivision (c), because, although forcible oral copulation is denominated in section 667.6, subdivision (e), attempted oral copulation is not. However, substantially the same sentence might have been properly imposed by treating the sentence on count 3 as the principal term and making the sentence on count 1 a full-strength consecutive sentence under the provisions of section 667.6, subdivision (c). As the Attorney General points out, such a sentence was expressly approved by the court in Belmontes: "f a defendant is convicted of both sex offenses and nonsex offenses, a trial court may properly designate the longest nonsex offense as the principal term and may treat all of the sex offenses under section 667.6, subdivision (c)." ([i]Belmontes, supra, 34 Cal.3d at p. 346.)

Although, under Belmontes, the trial court could have imposed a sentence on count 3 as the principal term and the sentence on count 1 as a consecutive subordinate term, here it did not do so. Rather, the abstract of judgment plainly treats the sentence on count 1 as the principal term and the sentence on count 3 as a consecutive subordinate term. We note that in sentencing Tenner, although the court did not expressly denominate the sentence on count 1 as the principal term, it did begin its sentencing pronouncement with count 1 and then, in sentencing on count 3, made express reference to section 667.6. Thus, the record does not support the Attorney General's contention the trial court intended to treat count 3 as the principal term and the sentence on count 1 as a subordinate consecutive term.

In sum, the record supports Tenner's argument that the trial court erroneously relied on section 667.6 in sentencing him on count 3 to a full upper term of four years. Accordingly, we must reverse the sentence imposed and remand for resentencing and, in particular, for determination of whether, in exercising its discretion, the trial court wishes to treat count 3 as the principal term and count 1 as subordinate term, as permitted by the court in Belmontes, supra, 34 Cal.3d at page 346. (See People v. Edwards (2011) 195 Cal.App.4th 1051, 1060 [where correction of sentencing error implicates trial court's discretion, reversal and remand is appropriate remedy].)

The Attorney General also concedes the one-year elderly victim enhancement set forth in section 667.9 subdivision (b) does not apply to Tenner's conviction on count 3 of attempted forcible oral copulation. Thus, on remand the trial court may not impose the enhancement on count 3.

DISPOSITION

The judgment of conviction is reversed and remanded for resentencing consistent with the views we have expressed.

BENKE, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.