Opinion
E072030
08-31-2020
THE PEOPLE, Plaintiff and Respondent, v. MARTIN LOPEZ, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Lance E. Winters, Chief Assistant Attorney General, Allison Acosta and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1604789) OPINION APPEAL from the Superior Court of Riverside County. Godofredo Magno, Judge. Remanded with directions. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Lance E. Winters, Chief Assistant Attorney General, Allison Acosta and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Martin Lopez of five counts of lewd and lascivious acts involving a child under 14, five counts of sodomy involving a child under 10, and five counts of oral copulation involving a child under 10. The jury also found true a special allegation he committed these crimes against multiple victims. The court sentenced Lopez to 10 consecutive terms of 15 years to life and five consecutive terms of 25 years to life for an aggregate prison term of 275 years to life. The court did not impose direct victim restitution and stayed a $450 criminal conviction assessment.
Lopez argues the sentencing court erroneously believed it had to sentence him to consecutive terms on each lewd and lascivious acts conviction, and remand is necessary to allow the court to exercise its discretion to impose the terms consecutively or concurrently. He also argues there are clerical errors in the court's orders regarding the imposition and staying of fees, the dates of certain offenses, and recording some indeterminate terms as both indeterminate and determinate. We correct the clerical errors and remand with directions regarding these corrections, but otherwise affirm the judgment.
I
FACTS
Lopez molested his girlfriend's two children nearly every day from the time one was five until she was almost 15 and the other from when she was six to when she was 12.
On October 29, 2018, the Riverside County District Attorney charged Lopez with five counts of lewd and lascivious acts involving a child under 14 (Pen. Code, § 288, subd. (a), unlabeled statutory citations refer to this code), five counts of sodomy involving a child under 10 (§ 288.7, subd. (a)), and five counts of oral copulation involving a child under 10 (§ 288.7, subd. (b)). The People also alleged Lopez committed the offenses against multiple victims. (§ 667.61, subd. (e)(4).) On November 8, 2019, a jury convicted Lopez on all counts and found the multiple-victims allegation true.
On January 11, 2019, Lopez filed a sentencing brief arguing the trial court had discretion to impose concurrent or consecutive sentences for every conviction and imposing full consecutive sentences for every conviction would constitute cruel and unusual punishment.
At sentencing, the court acknowledged "I do have discretion to determine whether to impose the sentences concurrently or consecutively . . . . But for each offense involving separate victims or the same victims on separate occasions, I must impose consecutive sentences." The court discussed People v. Rodriguez (2012) 207 Cal.App.4th 204, concluding it made clear "[t]here's not a lot of discretion in this case, given the type [and] nature of the charges," before specifically referencing the lewd and lascivious acts offenses.
The court went on to say "having read the charges or [sic] having heard the trial, my inclination is to impose the sentences consecutively." It further found "the crime involved great violence, great bodily harm, and a high degree of cruelty and viciousness," adding "one of the sticking points for me as well is the enduring, continuing conduct . . . committed against two separate victims . . . for many years. The court concluded by saying "I do believe that it was an egregious—one of the more egregious conducts in these types of cases, that I've seen, at least." The court found no mitigating circumstances in Lopez's favor.
The court imposed consecutive terms of 15 years to life for each of the five lewd acts convictions and five oral copulation convictions, plus five consecutive terms of 25 years to life for the five sodomy convictions, for an aggregate indeterminate term of 275 years to life. In discussing each lewd and lascivious act conviction, the court mentioned section 667.61, for instance, by saying it was sentencing Lopez "with an enhancement under [section] 667.71, subdivision (e), subsection (4)." It did not reference section 667.61 when imposing any other sentence. The court also imposed a $300 restitution fine and imposed but stayed a $450 criminal conviction assessment.
On January 18, 2019, Lopez timely appealed the verdict and sentence.
II
ANALYSIS
Lopez argues the trial court failed to exercise its discretion in sentencing him because it erroneously believed it didn't have discretion to impose concurrent terms for the lewd and lascivious act offenses. He asks us to reverse his sentence and remand to the trial court to allow it to exercise this discretion.
Lopez also argues there are a number of clerical errors in the court's written orders and asks us to correct these errors. The People agree those errors should be corrected, and we agree.
A. Sentencing Discretion
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation . . . .' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez), quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 (Belmontes).) Thus, where a court erroneously believes it does not have discretion to render a different sentence, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' " (Gutierrez, at p. 1391, quoting Belmontes, at p. 348, fn. 8.)
"Section 669 grants the trial court broad discretion to impose consecutive sentences when a person is convicted of two or more crimes," and "[t]he sentencing rules specify several criteria to guide the trial court's determination whether to impose consecutive or concurrent terms." (People v. Shaw (2004) 122 Cal.App.4th 453, 458.)
The One Strike alternate sentencing scheme doesn't eliminate this discretion. That scheme "mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime (§ 667.61 [listing applicable crimes]) and has also found certain factual allegations to be true" (People v. Anderson (2009) 47 Cal.4th 92, 102), including that a defendant committed these crimes "against more than one victim," as defined under subdivision (e)(4) of the same section. (§ 667.61, subd. (c), (e)(4).) However, subdivision (i) of the same section does reduce a sentencing court's discretion to impose concurrent or consecutive sentences, as it requires that "[f]or any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), or in paragraphs (1) to (6), inclusive, of subdivision (n), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions." (§ 667.61, subd. (i).)
A jury convicted Lopez of lewd or lascivious acts in violation of section 288, subdivision (a). This crime is listed in paragraph 8 of section 667.61, subdivision (c). Thus, it is not one of the seven crimes listed in section 667.61, subdivision (c), paragraphs (1) to (7), which require a court to impose consecutive terms. Accordingly, "although the statutory language of section 667.61, subdivision (b), mandates the imposition of 15 years to life for each count involving separate occasions and separate victims, section 667.61 does not mandate that those terms must be served consecutively." (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) Lopez's other 10 offenses, all violations of section 288.7, are not mentioned anywhere in section 667.61.
Nevertheless, the record demonstrates the trial court believed it lacked discretion to impose concurrent sentences for the violations of section 288. At sentencing it said "[t]here's not a lot of discretion in this case, given the type [and] nature of the charges," and "for each offense involving separate victims or the same victims on separate occasions, I must impose consecutive sentences," before doing exactly that. When sentencing defendant for each violation of section 288, the court referenced the true finding on section 667.61. Indeed, the People themselves admit the court's statements "suggest[] it may have misunderstood the law." The record is clear the court felt its discretion was limited, despite the fact it had its full discretionary authority to sentence Lopez consecutively or concurrently as normal. This was error.
However, even though the trial court was mistaken at the time of sentencing, remand is not necessary if "the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' " (Gutierrez, supra, 58 Cal.4th at p. 1391, quoting Belmontes, supra, 34 Cal.3d at p. 348, fn. 8.) Such was the case here.
First, the court clearly found Lopez's behavior heinous. It said his conduct stood out as "one of the more egregious conducts in these types of cases, that I've seen," found multiple aggravating factors (i.e., that "the crime involved great violence, great bodily harm, and a high degree of cruelty and viciousness"), and found no mitigating factors.
Second, how the court exercised its sentencing discretion on the counts where it understood it had a choice provides a good indication of how it would sentence Lopez on the other counts had it realized its discretion. The court was aware of its discretion to impose concurrent sentences for the 10 violations of section 288.7, and knowingly imposed each of those consecutively. This is consistent with the court's pronouncement of the sentences, where it mentions section 667.61 only in connection with the convictions under section 288.
In our view, the court's decision to make each of the other sentences consecutive makes clear it intended to sentence Lopez to the maximum allowable prison term. Had it intended to grant any leniency, it could have made up for its perceived lack of discretion on the section 288 convictions by sentencing Lopez concurrently on some or all of the 10 convictions for which it knew it had discretion to do so. The fact the court chose not to exercise leniency where it could have done so originally convinces us it isn't necessary to remand now for the trial court to have another chance to impose a shorter sentence.
Based on this record, we conclude the trial court considered Lopez's actions worthy of the maximum possible punishment allowed under the law and thus remand is unnecessary.
B. Clerical Errors
At sentencing, the trial court orally imposed a $300 restitution fine and criminal conviction assessments, but stayed the latter pending proof Lopez had the ability to pay these assessments. It also did not impose any direct victim restitution. Nevertheless, the sentencing minute order and abstract of judgment show the court ordered Lopez to pay $300 as direct victim restitution not a restitution fine. They also fail to note the $450 in criminal conviction assessments are stayed.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Both parties agree the abstract of judgment and sentencing minute order must be amended to reflect the court's oral pronouncement, and we agree with the parties. Accordingly, we exercise our independent authority to correct the identified clerical errors. (In re Candelario (1970) 3 Cal.3d 702, 705.)
Finally, Lopez argues, and the People agree, that the abstract of judgment contains multiple errors. First, it incorrectly lists the date of each offense as 2016. However, the charging documents and evidence at trial show the offenses were committed in different years, none of which were 2016.
Second, the abstract of judgment incorrectly lists the terms for counts 7 through 15 under the "Principal or Consecutive Term Imposed" column and a total for that column. However, those terms are already correctly included on the first page of the abstract. This double counting means the abstract shows Lopez received both indeterminate and determinate terms for these counts. The parties agree this is incorrect and should be corrected, and we agree with the parties.
III
DISPOSITION
We remand to the trial court for the limited purpose of directing it to amend the abstract of judgment to reflect that the criminal convictions assessments were stayed, to remove any reference to direct victim restitution, to remove the references to determinate terms imposed for counts 7 through 15, and to correct the dates of each crime as follows: count 1, 2004-2007; count 2, 2007-2008; count 3, 2008-2009; count 4, 2008-2009; count 5, 2009-2010; count 6, 2009-2010; count 7, 2010-2011; count 8, 2011-2012; count 9, 2006-2009; count 10, 2009-2010; count 11, 2010-2011; count 12, 2010-2011; count 13, 2011-2012; count 14, 2011-2012; count 15, 2012-2014.
The trial court shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We further order the trial court to issue a supplemental minute order showing the criminal convictions assessments were stayed and to remove any reference to direct victim restitution. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. MILLER
J.