Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA346772 Bob S. Bowers, Jr., Judge.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Appellant was convicted of seven counts of sex crimes against three children, with a true finding of multiple victims as to the three counts of lewd acts upon a child. The court imposed five consecutive sentences of 15 years to life for three counts of lewd acts upon a child and two counts of oral copulation/sexual penetration with a child under 10 years of age. Appellant argues the court erred in believing it did not have discretion to impose concurrent sentences for all five counts. We agree in respect to the three counts of lewd acts upon a child and we shall remand the case to the trial court with directions to exercise its discretion in choosing to impose the sentences consecutively or concurrently.
FACTUAL AND PROCEDURAL SUMMARY
From January 2006 to September 2008, appellant allegedly committed various sex crimes against three different children under the age of 14. He was arrested and charged as follows: sex/sodomy with a child under 10 years old (Pen. Code, § 288.7, subd. (a))in counts 1 and 2; oral copulation/sexual penetration with a child under 10 years old (§ 288.7, subd. (b)) in counts 3, 4, 5, 9, and 12; and lewd acts upon a child under 14 years old (§ 288, subd. (a)) in counts 6, 7, 11, and 13. As to all four counts of lewd acts upon a child, it was further alleged that appellant committed the offenses against more than one victim. (§ 667.61, subds. (b), (c).) Appellant was found guilty by jury of counts 3, 4, 5, 6, 9, 11, and 13. The special allegations as to counts 6, 11, and 13 were found true. Appellant was sentenced to 15 years to life on counts 4, 5, 6, 11, and 13, imposed consecutively, for an aggregate term of 75 years to life. The sentences in counts 3 and 9 were stayed pursuant to section 654. This timely appeal followed.
All statutory references are to the Penal Code, unless otherwise indicated.
DISCUSSION
Appellant argues that the trial court imposed consecutive sentences for counts 4, 5, under section 288.7, and counts 6, 11, and 13, under section 288, based on the court’s erroneous belief that it had no discretion to impose concurrent sentences.
Respondent argues that appellant forfeited the argument by failing to object at the sentencing hearing. The defendant cannot raise a claim that the sentencing court abused its discretion for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351-353. However, the forfeiture rule does not apply when an objection would have been futile. (See People v. Ibarra (2007) 156 Cal.App.4th 1174, 1199.) Here, a fair reading of the court’s statements is that it believed section 667.61 required it to impose consecutive sentences for counts 6, 11, and 13. It was reasonable for appellant’s attorney to conclude it would be futile to object to the court’s misstatement of the law. In any event, we are not prohibited from reviewing sentencing errors simply because the appellant failed to raise the issue before the trial court. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) We find it appropriate to address the issue in this case.
Under section 667.61, a person convicted of lewd acts upon multiple children under the age of 14 must be sentenced to 15 years to life for each conviction. (See § 667.61, subds. (b), (c)(8), (e)(5).) Section 667.61 does not require that multiple sentences for this offense be served consecutively. (See § 667.61, subd. (i).) Rather, it is within the trial court’s discretion to impose concurrent terms in this situation. (See People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) The trial court need not state its reasons for imposing consecutive indeterminate sentences (see People v. Black (2005) 35 Cal.4th 1238, 1262, fn. 17, disapproved on other grounds in Cunningham v. California (2007) 549 U.S. 270), and the court is “presumed to have been aware of and followed the applicable law” when imposing a sentence. (People v. Mosley (1997) 53 Cal.App.4th 489, 496 [“These general rules concerning the presumption of regularity of judicial exercises of discretion apply to sentencing issues.”].) When the trial court has discretion but is under the mistaken belief that it does not, the remedy is to remand the case so that the court may exercise its discretion. (See People v. Rodriguez, supra, 130 Cal.App.4th at p. 1263 [remanded when trial court incorrectly stated it did not have discretion to impose concurrent sentences for lewd acts upon more than one child].)
Section 667.61, subdivision (i) states, in pertinent part: “For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c)... the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims....” Violations of section 288, subdivision (a), fall under subdivision (c)(8) of section 667.61.
The trial court sentenced appellant to 15 years to life for each count of lewd act upon a child, pursuant to section 667.61. The court then stated: “The offenses alleged in count[s] 6, 11 and 13 each involved a different victim[;] therefore the court must impose full separate and consecutive sentences for those offenses.” The court’s citation to section 667.61 and its subsequent statement that it “must” impose the terms consecutively suggests that it believed the statute required it to do so. Respondent attempts to distinguish People v. Rodriguez, supra, 130 Cal.App.4th at pages 1260-1261, because in that case the trial court explicitly stated it did not believe it had discretion to impose concurrent sentences, while here, the court was simply explaining its reasoning. Respondent argues that what the trial court meant was that it felt strongly compelled to impose consecutive sentences given the circumstances. This interpretation of the court’s statement is not sufficiently supported by the record. Although the court’s statement was not entirely unequivocal, we do not agree with respondent’s reading and cannot assume that the use of the word “must” was merely a stylized exercise of the court’s discretion.
Appellant argues the trial court made the same mistake in respect to counts 4 and 5. Although section 288.7, subdivision (b) requires an indeterminate sentence of 15 years to life for oral copulation/sexual penetration with a child under 10 years old, the Penal Code is silent on whether it must be imposed concurrently or consecutively with other sentences. Thus, we follow the general rule that the trial court has discretion to choose unless the statute explicitly states otherwise. (See People v. Bradford (1976) 17 Cal.3d 8, 20; see also § 669.)
However, we do not agree with appellant that the trial court was unaware of its discretion when imposing consecutive sentences for counts 4 and 5. The court stated: “The defendant who was 18 years or older at the time of the commission of the crime has been convicted of a violation of Penal Code section 288.7[, subdivision (b)] oral copulation or sexual penetration with a child under 10 as set forth in counts 3, 4, 5 and 9 of the information. Therefore, the defendant is sentenced to the state prison of the State of California for the term of 15 years to life consecutive as to each count and consecutive as to any other term imposed.” Unlike its statement in respect to counts 6, 11, and 13, the court did not employ any language suggesting compulsion when addressing counts 4 and 5, and the court is not required to explicitly state it is exercising its discretion. Thus, reading the court’s statements together, it appears the court was not aware of its discretion in respect to counts 6, 11, and 13, but was aware of it in respect to counts 4 and 5.
Appellant contends that the district attorney’s sentencing memorandum misled the court into thinking it was required under section 1170.1 to impose consecutive sentences for counts 4 and 5. Nothing in the record suggests the court relied on respondent’s sentencing memorandum. The prosecutor did not repeat her argument at the sentencing hearing and the court did not cite section 1170.1. In fact, before announcing its decision, the court explicitly stated that it read and considered the probation officer’s report and a “[Static-]99 risk assessment tool consisting of two pages, ” but made no mention of the district attorney’s sentencing memo. We conclude the court exercised its discretion when imposing consecutive sentences for counts 4 and 5.
Respondent’s sentencing memorandum states: “Crimes sentenced under Penal Code [s]ection 1170.1, (crimes with indeterminate sentences) are calculated and imposed consecutive to all other charges.” While section 1170.1 provides instructions to the sentencing court if it imposes consecutive sentences for multiple offenses, it does not require the court to do so.
Finally, respondent cites People v. Superior Court (Romero)(1996) 13 Cal.4th 497, 530, footnote 13, in arguing that even if a court errs in sentencing, remand is not required unless it is reasonably probable the court would have imposed a different sentence. In that case, the defendant filed a habeas petition seeking to have his sentence reconsidered because the trial court misunderstood the scope of its discretion to strike prior felony conviction enhancements. (Ibid.) The appellate court held that the petition may be denied if the sentencing court exercised its discretion, “or if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.” (Ibid.) Here, it appears that the court was not aware of its discretion to impose concurrent sentences for counts 6, 11, and 13, and gave no indication that if it did have such discretion it would exercise it by imposing consecutive terms.
DISPOSITION
We reverse the consecutive sentences for counts 6, 11, and 13 and remand to the trial court with directions to exercise its discretion in choosing between consecutive and concurrent terms on these counts. The judgment is affirmed in all other respects.
We concur: WILLHITE, J., MANELLA, J.