Opinion
E053035
10-11-2012
THE PEOPLE, Plaintiff and Respondent, v. IOANE SOLIA, Defendant and Appellant.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Gil Gonzalez and Vincent P. LaPietra, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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. RIF150373)
OPINION
APPEAL from the Superior Court of Riverside County. Richard J. Hanscom and Edward D. Webster, Judges. Affirmed with directions.
Judge Hanscom is a retired judge of the San Diego Superior Court and Judge Webster is a retired judge of the Riverside Superior Court, both assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Gil Gonzalez and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Ioane Solia guilty of kidnapping to commit rape or oral copulation (Pen. Code, § 209, subd. (b)(1); count 1), oral copulation by force, sexual penetration by force, sodomy by force, and rape (§§ 288a, subd. (c)(2), 289, subd. (a)(1), 286, subd. (c)(2), 261, subd. (a)(2); counts 2-5). Jane Doe, a woman in her early 20's whom defendant found sitting on a street curb in Beaumont on May 17, 2008, was the victim of the crimes.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury also found that defendant personally used a firearm in the commission of counts 1 through 5 (§ 12022.53, subd. (b)) and found additional firearm and kidnapping allegations true in counts 2 through 5 (§§ 667.8, subd. (a), 667.61, subds. (d)(2), (e)(1), (e)(4)). The court found that defendant had a prior conviction for continuous sexual abuse of a child (§ 288.5) within the meaning of section 667.61, subdivision (d)(1), and the conviction qualified as a prior serious felony conviction and prior strike conviction (§ 667, subds. (a), (c), (e)(1)). Defendant was sentenced to 214 years to life plus 55 years in prison.
On this appeal, defendant, whose native language is Samoan, claims he was not provided with a competent Samoan defense interpreter during trial. Alternatively, he claims his trial counsel rendered ineffective assistance in failing to request, before trial, a hearing on the defense interpreter's competency. We reject these claims.
Defendant also raises two claims of sentencing error, namely, that his life sentence on count 1, together with the 10-year personal use enhancement on count 1, should have been stayed under section 654 and that concurrent, rather than consecutive, terms were imposed on counts 2 through 5. We reject the first claim but will remand the matter for the trial court to specify whether defendant's sentences shall be concurrent or consecutive.
Lastly, defendant claims that a February 4, 2011, minute order and the abstract of judgment must be corrected to reflect that his 94 days of local conduct credits were calculated under section 2933.1, not section 4019. We remand the matter with directions to correct the court's records and the abstract of judgment. In all other respects, we affirm the judgment.
II. FACTUAL BACKGROUND
Around 11:00 p.m. on May 17, 2008, Jane Doe walked to the Thrifty gas station at Beaumont Avenue and 6th Street in Beaumont, around one-half mile from her home. After buying cigarettes, Doe sat down on the curb by the gas station to smoke and noticed a man driving around in a white car. When the man stopped and offered her a ride, she declined. The car continued circling the area. Concerned that the man might follow her home, Doe began walking in the direction opposite her home.
In one place the victim indicated it could have been around 9:00 p.m.
As Doe was walking, defendant came up behind her, pressed a gun to her back and forced her into the passenger seat of his car. He drove Doe from Beaumont to Moreno Valley via Interstates 10 and 60. During the drive, defendant pointed a gun at Doe and told her she was his wife now. He also told her he was going to cut her into pieces and bury her "all over in the dirt" so her body could not be identified.
After exiting Interstate 60 at Heacock Street, defendant stopped in a secluded area near some empty buildings. There, defendant forced Doe into the backseat of the car at gunpoint, removed her pants and underwear, and began sexually assaulting her. Defendant orally copulated Doe, bit her genitalia, raped her, digitally penetrated her, and sodomized her, all while pointing a gun at her. After defendant ejaculated, Doe "kicked" her way out of the car and ran for her life.
Doe was completely naked and only able to grab her T-shirt as she fled. After attempting to flag down passing cars, Doe ran to a house on Cactus Street and knocked on the door. The occupant, Ms. Bennett, answered. Crying hysterically and wearing only a T-shirt, Doe told Bennett she had been kidnapped and raped. Bennett called the police.
A sexual assault response team nurse determined that Doe had injuries consistent with having been sexually assaulted. A DNA swab taken from Doe's vagina matched defendant's DNA.
At the time of the assault, defendant was wearing a GPS (global positioning system) monitoring device. Data from the GPS device indicated that at 2:28 a.m. on May 17, 2008, defendant was in the area of Beaumont where Doe claimed she had been taken, and he traveled to Moreno Valley via the same path Doe described. The data also indicated that defendant exited Interstate 60 at Heacock Street at 2:56 a.m. and stopped at that location for a time. Serta Mattress Company, where defendant worked and where Doe told detectives the assault occurred, was near the area where the GPS data showed defendant stopped.
The cameras at the Serta Mattress Company recorded a white vehicle driving into the parking lot on the night of the assault. Defendant usually drove his wife's white Toyota Camry. Doe identified defendant as her assailant in a photographic lineup and at trial.
Around one year after the incident, defendant was interviewed by police. After being shown a photograph of Doe, defendant denied knowing her, having seen her before, having given her a ride, or having raped her. During the interview, defendant denied knowing Doe or having sex with her.
III. DISCUSSION
A. Defendant Was Not Denied His Right to a Competent Samoan Interpreter
Defendant, whose native and primary language is Samoan, claims he was denied his state constitutional right to a "competent" Samoan language defense interpreter during trial. (Cal. Const., art. I, § 14.) Alternatively, he claims his trial counsel rendered ineffective assistance in failing to object to the court's failure to follow the procedural requirements for using a nonregistered interpreter. (Cal. Rules of Court, rule 2.893.) We reject these claims.
All further references to rules are to the California Rules of Court.
1. Relevant Background
In June 2009, before defendant's arraignment on the amended felony complaint, the court ordered that he be assisted by a Samoan interpreter. At his June 22, 2009, arraignment and during several other pretrial proceedings, defendant was assisted by Saga Tuiasosopo, the only registered Samoan interpreter in California. During the jury trial in November and December 2010, and when the jury returned its verdicts and findings, defendant was assisted by Tupe Auelua, a nonregistered Samoan interpreter.
Interpreter Auelua's first appearance on the record in this case was at a settlement conference on October 23, 2009. On that date, defense counsel stipulated to the use of Interpreter Auelua as a nonregistered Samoan interpreter. The court's October 23, 2009, minute order indicates that Interpreter Auelua's "[s]worn oath" was "on file." After October 23, 2009, and up to the time the jury trial commenced in November 2010, defendant was again assisted by registered Samoan Interpreter Tuiasosopo.
The jury returned its verdicts and findings in December 2010. The matter was later scheduled for a court trial on the prior conviction allegation and for sentencing on January 28, 2011. On January 28, Interpreter Tuiasosopo was again interpreting for defendant. The probation officer's report and sentencing recommendation that defendant be sentenced to 214 years to life plus 106 years in prison was on file when the court called the matter.
At the outset of the proceedings, defense counsel told the court that defendant had just informed him that Interpreter Auelua had "inadequately interpret[ed]" statements that defendant made to defense counsel during trial. Counsel clarified that on one occasion when defendant intended to communicate to defense counsel that he had a question, Interpreter Auelua did not translate to defense counsel that defendant had a question but that defendant felt "ashamed." Also according to defendant, and based on defendant's "full knowledge" of Samoan and "functioning knowledge" of English, there were other instances in which Interpreter Auelua misinterpreted statements defendant made to defense counsel.
Defense counsel moved for a new trial based on the "apparent misinterpretation" of Interpreter Auelua. In opposing the motion, the prosecutor argued that "any problems with translation should have been brought up" as soon as they arose. Defendant should have asked his question again if he believed Interpreter Auelua was misinterpreting his questions, and defendant had "plenty of opportunities" to have any questions answered by defense counsel during the course of the seven-day jury trial. The prosecutor also said it was clear that defendant was trying to avoid being sentenced and taking responsibility for his crimes.
In denying the motion, the court pointed out that Interpreter Auelua appeared to be "very alert and very conscientious" during trial, and the court did not notice any problems with the interpretation. Moreover, the court said that, although defendant's native language was Samoan, defendant had been living in California for 30 years, was employed and in prison for some time, and was able to make jokes in English during his police interrogation in 2009. The court concluded that defendant's "substantial knowledge of English" had "a bearing" whether he should have promptly discovered and promptly alerted his defense counsel or the court to any "serious mistakes in translation" on the part of Interpreter Auelua.
The court also pointed out that misinterpretations occur even between people who speak the same language, but they can be promptly corrected. As an example, the court said that when defense counsel used the word "ashamed," both the court and the court reporter did not understand the word he used and had to ask him to repeat it. In sum, the court said it "heard nothing" to indicate that Interpreter Auelua "didn't do a competent job . . . ."
2. Applicable Legal Principles
Interpreters perform three interrelated but distinct roles in a criminal proceeding: (1) as "witness interpreter" to enable questioning of non-English-speaking witnesses; (2) as "proceedings interpreter" to enable a non-English-speaking defendant to understand exchanges at trial among the witnesses, the attorneys, and the court; and (3) as "defense interpreter" to enable a non-English-speaking defendant to communicate with his or her English-speaking attorney. (People v. Romero (2008) 44 Cal.4th 386, 410.)
Article I, section 14 of the California Constitution provides that "[a] person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings." Under this provision, a non-English-speaking defendant "is entitled to two interpreters, one to interpret the witnesses' testimony and the other to be the personal interpreter for the defendant." (People v. Estrada (1986) 176 Cal.App.3d 410, 415, citing People v. Aguilar (1984) 35 Cal.3d 785.)
A personal interpreter performs the overlapping or dual functions of a proceedings interpreter and a defense interpreter. (See People v. Aguilar, supra, 35 Cal.3d at pp. 790-791.) Here, Interpreter Auelua served as defendant's personal interpreter (i.e., proceedings and defense) during the jury trial in November and December 2010.
A personal interpreter cannot simultaneously serve as a witness interpreter without depriving the defendant of his only means of understanding the proceedings and communicating with defense counsel. (People v. Aguilar, supra, 35 Cal.3d at p. 791.)
The dual functions of a personal interpreter are critical, because a defendant who cannot understand the proceedings or communicate with his trial counsel cannot be "truly present at his trial" and "is ipso facto denied effective representation." (People v. Aranda (1986) 186 Cal.App.3d 230, 236, fn. omitted.) The right to interpreters safeguards the constitutional rights of non-English-speaking defendants "to due process, to confrontation, to effective assistance of counsel, and to be present at trial." (People v. Rodriguez (1986) 42 Cal.3d 1005, 1011; see also People v. Romero, supra, 44 Cal.4th at p. 410.)
The Legislature has enacted a comprehensive statutory scheme governing court interpreter services (Gov. Code, § 68560 et seq.), including provisions for the certification of interpreters of languages "designated" by the Judicial Council (Gov. Code, §§ 68561, 68562). Except upon a showing of good cause, a court may only appoint "a certified court interpreter" to interpret a designated language. (Gov. Code, § 68561, subd. (a); see also id., subd. (c).) The parties agree that Samoan is not a designated language and that there are no certified Samoan court interpreters in California.
For nondesignated languages, interpreters "shall be qualified by the court under the qualification procedures and guidelines adopted by the Judicial Council." (Gov. Code, § 68561, subd. (d).) If an interpreter of a nondesignated language is "qualified by the court under the qualification procedures and guidelines adopted by the Judicial Council" and "passes an English fluency examination offered by a testing entity approved by the Judicial Council," then the interpreter "shall be designated a 'registered interpreter.'" (Ibid.) As noted, Interpreter Tuiasosopo was the only registered Samoan interpreter in California at the time of trial, and Interpreter Auelua was a nonregistered Samoan interpreter.
Rule 2.893 sets forth the qualification procedures and guidelines for appointing noncertified interpreters of designated languages. No rule of court expressly sets forth qualification procedures and guidelines for appointing registered or nonregistered interpreters of nondesignated languages. For purposes of our discussion, however, we assume that rule 2.893(d) also governs the appointments of registered and nonregistered interpreters of nondesignated languages, including Samoan. (See People v. Superior Court (Almaraz)(2001) 89 Cal.App.4th 1353, 1356-1360 [noting the importance of the procedural requirements of former rule 984.2, the precursor to rule 2.893, in ensuring "a competent interpreter and an adequate record of that fact"].)
Under rule 2.893(b)(1), noncertified interpreters of designated languages may be considered for appointment for a six-month period, provided the presiding judge or other designated judicial officer finds a noncertified interpreter to be "provisionally qualified" pursuant to the procedures and guidelines set forth in Judicial Council form IN-100. If a provisional qualification order is signed (Judicial Council form IN-110), the judge in the proceeding in which the interpreter is to be assigned must find that (1) good cause exists to appoint the noncertified interpreter (Gov. Code, § 68561, subd. (c)), and (2) the interpreter is qualified to interpret the proceeding (rule 2.893(b)(1)(B)). The court must also inform the defendant that (1) the proposed interpreter is not certified; (2) the court has found good cause to appoint him or her; and (3) the court has found the interpreter to be qualified. (Rule 2.893(d)(1).) "If the defendant . . . objects to the appointment of the proposed interpreter or waives the appointment of a certified interpreter, the objection or waiver must be on the record." (Rule 2.893(d)(2).)
"An interpreter regularly employed by the court and certified or registered in accordance with [Gov. Code, § 68650 et seq.] . . . may file an oath . . . with the clerk of the court. The filed oath shall serve for all subsequent court proceedings until the appointment is revoked by the court." (Evid. Code, § 751, subd. (d).) Additionally, interpreters are subject to the same rules of competency and examination as expert witnesses (see Evid. Code, §§ 750, 752; Cal. Law Revision Com. com., 29B pt. 2 West's Ann. Evid. Code (1995 ed.) foll. § 752, p. 372), and a criminal defendant does not have a right to a certified or registered interpreter, only a competent interpreter (People v. Estrada, supra, 176 Cal.App.3d at p. 415).
3. Analysis
Defendant claims that when he complained after trial that Interpreter Auelua had inaccurately interpreted one or more of his questions or statements to defense counsel during trial, the court erroneously failed to conduct a hearing in order to determine whether Interpreter Auelua was competent to interpret Samoan. Defendant also complains that "the record does not indicate that . . . the court followed the mandatory procedures for appointing a nonregistered interpreter and found that the interpreter qualified." These arguments are unavailing.
Defendant voiced no objections whatsoever to Interpreter Auelua's competency at any time during trial. Instead, he waited until January 28, 2011, the date he was to be sentenced, to complain that Interpreter Auelua misinterpreted some of his questions and statements to defense counsel during trial. Because defendant did not object to Interpreter Auelau's competency during trial, he has forfeited the competency issue on appeal. (People v. Aranda, supra, 186 Cal.App.3d at p. 237.)
As explained in People v. Aranda, supra, 186 Cal.App.3d at page 237: "The question of an interpreter's competence is a factual one for the trial court. [Citations.] The ideal time to question the qualifications of an interpreter is before he is permitted to act [citation], although, if the competence of an interpreter becomes an issue after he commences his duties, it can be raised at that time. [Citation.] When a showing is made, at trial, that an interpreter may be biased or his skills deficient, one solution may be appointment of a 'check interpreter.' [Citation.] When no objection is raised to the competence of the interpreter during trial, the issue cannot be raised on appeal. [Citations.]"
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But even if the issue of Interpreter Auelua's competency were properly before this court, it has no merit. With the assistance of Interpreter Tuiasosopo, defendant complained on the date of sentencing that Interpreter Auelua had misinterpreted some statements and questions he posed to defense counsel during trial. Defendant's only specific complaint was that Interpreter Auelua mistranslated his statement, "I have a question," as "I am ashamed."
If that happened, it would have been immediately apparent to defendant that his counsel did not understand he had a question. It was therefore incumbent upon defendant to repeat his statement, "I have a question," so that his counsel knew he had a question, and then ask his question. Indeed, defendant did not claim he was unable to ask his question or that his question went unanswered. Nor did he claim that defense counsel failed to answer or acknowledge any other questions or comments he made during trial, notwithstanding that some of his questions or comments were initially misinterpreted. Defendant also did not claim that Interpreter Auelua misinterpreted any statements by the witnesses, the court, the prosecutor, his defense counsel, the court reporter, or anyone else who spoke during trial.
Thus, any error on the part of the court in failing to determine Interpreter Auelua's competency (rule 2.893), either before or after trial, was harmless beyond a reasonable doubt (People v. Rodriguez, supra, 42 Cal.3d at p. 1014 [appointment of one interpreter as personal interpreter for two codefendants was harmless beyond a reasonable doubt, given there was no showing that either defendant's ability to communicate with his counsel or comprehend the proceedings was impeded by the use of the single interpreter]). In sum, defendant has not articulated any discernable reason to believe his rights to due process, to confrontation, to be present at trial, or to effective assistance of counsel were in any way compromised by the court's failure to determine Interpreter Auelua's competency in accordance with rule 2.893. (People v. Rodriguez, supra, at pp. 1011-1012.)
Defendant has also failed to demonstrate that his trial counsel rendered ineffective assistance in failing to request a hearing, after trial, on Interpreter Auelua's competency during trial. Even if counsel's omission fell below an objective standard of reasonableness, it is not reasonably probable that defendant would have realized a more favorable result at trial had the hearing been requested and conducted. (Strickland v. Washington (1984) 466 U.S. 668, 684-686; People v. Ledesma (1987) 43 Cal.3d 171, 215.) Indeed, given the paucity of defendant's complaints, the court's observation that it saw nothing to indicate that Interpreter Auelua did not "do a competent job," defendant's "functioning" knowledge of English, and the entire record, it is not reasonably probable that the court would have found defendant was in any way prevented from being fully present and fully participating in his trial based on any deficiencies in Interpreter Auelua's qualifications or performance during trial. B. The Life Term and Use Enhancement on Count 1 Were Properly Not Stayed
Defendant claims the court erroneously failed to stay imposition of his life term on count 1 for kidnapping to commit rape or oral copulation (§ 209, subd. (b)(1)), together with his 10-year personal use enhancement on count 1 (§ 12022.53, subd. (b)), because the court "used the kidnapping" to impose both the life term on count 1 under section 209, subdivision (b), and the 25-year-to-life terms in counts 2 through 5 under the one strike law (§ 667.61, subd. (d)(2)). We disagree there was any error.
1. Background
For his conviction in count 1 for kidnapping to commit rape or oral copulation (§ 209, subd. (b)(1)), defendant was sentenced to life with a minimum parole eligibility period of seven years, doubled to 14 years based on his prior strike conviction, plus 10 years for the personal use enhancement. A life term is required to be imposed for kidnapping to commit rape or oral copulation, among other crimes (id., subd. (b)(1)), "if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense" (id., subd. (b)(2)).
In counts 2 through 5, defendant was sentenced to 25 years to life under the one strike law (§ 667.61) doubled to 50 years based on his prior strike conviction. In these counts, defendant was convicted of oral copulation by force, sexual penetration by force, sodomy by force, and rape. (§§ 288a, subd. (c)(2), 289, subd. (a)(1), 286, subd. (c)(2), 261, subd. (a)(2).) In each count, the jury found that defendant kidnapped Doe, the victim of the underlying offenses, and the movement of the victim "substantially increas[ed] the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense" within the meaning of section 667.61, subdivision (d)(2) of the one strike law.
2. Analysis
Under section 209, subdivision (d), "a person may not be punished under [section 209,] subdivision (b) and section 667.61 for the same act that constitutes a violation of both subdivision (b) and Section 667.61." (Italics added.) Relying on this provision, defendant argues that his life term and use enhancement on count 1 must be stayed because the life term was imposed based on the "same act" that constituted a violation of both section 209, subdivision (b) and section 667.61, namely, the kidnapping of Doe with movement substantially increasing her risk of harm over the risk inherent in the underlying offenses. (§ 209, subd. (d).)
Defendant is mistaken. Under section 667.61, subdivision (a), a term of 25 years to life is required to be imposed on a person convicted of the offenses in counts 2 through 5, under one or more of the circumstances specified in subdivision (d) of section 667.61. The kidnapping enhancement was a circumstance described in subdivision (d)(2) of section 667.61. In addition, the court found that defendant had a prior conviction for continuous sexual abuse of a child (§ 288.5) within the meaning of section 667.61, subdivision (d)(1). Thus, the offenses in counts 2 through 5 were committed under two circumstances described in section 667.61, subdivision (d).
This triggered the application of section 667.61, subdivision (f), which requires the court to impose the maximum possible punishment authorized by law for sex offenses committed under more than one circumstance described in subdivision (d). As pertinent, the statute states: "If only the minimum number of circumstances specified in subdivision (d) . . . that are required for the punishment provided in subdivision (a) . . . to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) . . . rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or the punishment under another provision of law can be imposed in addition to the punishment provided by this section. However, if any additional circumstance or circumstances specified in subdivision (d) . . . have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a) . . . and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other provision of law." Section 209, subdivision (d) states that "[s]ubdivision (b) shall not be construed to supersede or affect Section 667.61."
Thus, here, the court was required to use the prior conviction finding to impose the 25-year-to-life terms in counts 2 through 5 and to impose the life term on count 1 based on the increased risk of harm to Doe that was part of the kidnapping offense in count 1. C. The Matter Must Be Remanded for Clarification of the Sentence
In his opening brief, defendant claimed the court erroneously imposed consecutive terms on counts 2 through 5. Relying on section 667.61, subdivision (i), he claimed the court was required to find he committed the crimes on separate occasions in order to impose consecutive terms, but the court did not make this finding, and no reasonable trier of fact could have made the finding.
In response, the People conceded that the crimes "involve[d] the same victim on the same occasion" but argued that consecutive terms on counts 2 through 5 were both authorized and properly imposed under section 667.6, subdivision (c), even though the court did not mention the statute in pronouncing sentence.
In a supplemental opening brief, defendant claims that, even though the sentencing minute order and the abstract of judgment indicate that consecutive terms were imposed on counts 1, 3, 4, and 5, the court did not impose any consecutive terms in orally pronouncing judgment. Instead, defendant claims that, in pronouncing judgment, the court did not impose any consecutive terms. (People v. Mesa (1975) 14 Cal.3d 466, 471 [oral pronouncement of judgment controls over minute order and abstract of judgment].) Thus, defendant argues, the sentencing minute order and the abstract must be corrected to reflect that concurrent terms were imposed on counts 1 through 5, consistent with the court's oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [court has inherent authority to correct clerical errors in its records].)
In a letter in response to defendant's supplemental opening brief, the People argue it is clear from the entire record that the court intended to impose consecutive terms to the fullest extent authorized by law, even though the court did not use the word "consecutive" in pronouncing judgment, did not designate count 2 as the principal count, and did not announce an aggregate sentence. We disagree.
Section 669 states, in pertinent part: "Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently." Thus, if a court fails to indicate that sentences are to run consecutively, they are deemed to run concurrently. (People v. Downey (2000) 82 Cal.App.4th 899, 912-915.) If, however, a court clearly indicates its intent to impose consecutive terms, section 669 does not apply. (People v. Edwards (1981) 117 Cal.App.3d 436, 451-452 & fn. 4.)
Here, the record is ambiguous as to whether the court intended to impose concurrent or consecutive terms, and on what counts. The court said nothing about consecutive terms in orally pronouncing judgment, but both the sentencing minute order and the abstract of judgment indicate that consecutive terms were imposed on counts 1, 3, 4, and 5. We therefore remand the matter for clarification of the sentence.
To be sure, the probation officer's sentencing recommendation, which the court acknowledged it had read, included two "exposure calculation[s]" based on the assumption that consecutive terms would be imposed. The defense waived argument on sentencing, and the People submitted on the report. Then, after defendant addressed the court, the court told defendant that, given his prior conviction for violating section 288.5 and his current offenses, he was a "very substantial danger to the community to commit other sex [offenses]" and pronounced judgment.
But in orally pronouncing judgment, the court said:
"Now, with regard[] to Count 1, the kidnapping for the sex offense, it's seven years to life, doubled because of the strike, so it would be 14 years to life. The . . . use of [a] firearm enhancement[] will be the full upper term of ten years.
"With regard to Count 2, oral copulation by force with the enhancement of kidnapping, which makes it then a 25 to life offense, and that [is] double[d] for 50 years to life. And I believe the enhancement for the kidnapping, which is what makes it doubled, that can't be imposed because it's already used, but the [personal use] enhancement of ten years will be imposed, plus the [section] 667[, subdivision (a)](1) enhancement, that's serious prior felony of five years.
"As to Count 3, it will be the same exact sentence as to Count 2. And as to Count 4, it will be the same exact sentence as to Counts 2 and 3. And also Count 5, same exact sentence. So you'll be sentenced to prison for that term." (Italics added.)
Thus here, the record is ambiguous as to whether the court intended to impose consecutive terms on any counts.
We observe that full, consecutive terms on counts 2 through 5, but not count 1, were authorized under section 667.6, subdivision (c). Under the statute, the court has discretion to impose "full, separate, and consecutive term[s]" in lieu of partial consecutive terms under section 1170.1 for "each violation" of a sex offense listed in subdivision (e) "if the crimes involve the same victim on the same occasion" (§ 667.6, subd. (c)) and the defendant has a prior conviction for an offense listed in section 667.6 subdivision (e) (id., subd. (a)); see also People v. Quintanilla (2009) 170 Cal.App.4th 406, 411, fn. 3.)
Defendant's prior section 288.5 conviction for continuous sexual abuse of a child is a sex offense listed in section 667.6 subdivision (e), as are each of the current offenses in counts 2 through 5, namely, oral copulation by force, sexual penetration by force, sodomy by force, and rape. (§§ 288a, subd. (c)(2), 289, subd. (a)(1), 286, subd. (c)(2), 261, subd. (a)(2).) His section 209, subdivision (b) conviction in count 1 is not an offense listed in section 667.6 subdivision (e).
Section 667.6 is "a separate and alternative sentencing scheme for offenses that fall within its ambit. Thus, . . . if 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)." (People v. Belmontes (1983) 34 Cal.3d 335, 346.) Thus, here, the court could have designated count 1 as the principal count and imposed full consecutive terms on counts 2 through 5 under section 667.6, subdivision (c). The record tends to indicate that this was the court's intention, but the record is ambiguous.
Alternatively, the court could have designated count 2 as the principal count under section 1170.1 and imposed consecutive terms of one-third the middle term on counts 1, 3, 4, and 5 under section 1170.1 If the court intended to impose consecutive terms under section 1170.1, it was required to designate count 2 as the principal term because it carried "the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements." (§ 1170.1, subd. (a).) Additionally, the court was required to impose one-third the middle term on counts 1, 3, 4, and 5 as the subordinate counts if it sentenced defendant to consecutive terms under section 1170.1 (Ibid.)Because the court imposed full terms on all counts, it appears it did not intend to impose consecutive terms under section 1170.1.
Defendant also argues that the court erroneously failed to state a reason for imposing consecutive terms on counts 2 through 5. The applicable rule is aptly summarized in People v. Quintanilla, supra, 170 Cal.App.4th at page 411:
"'"It is well settled that in making sentencing choices pursuant to section 667.6, subdivision (c), sexual assault offenses, the trial court must state a reason for imposing a consecutive sentence and a separate reason for imposing a full consecutive sentence as opposed to one-third the middle term as provided in section 1170.1." [Citation.] . . . [H]owever, the court may "repeat the same reasons." (Cal. Rules of Court, rule 426(b)[, now rule 4.426(b)].)' (People v. Osband (1996) 13 Cal.4th 622, 729 [55 Cal.Rptr.2d 26, 919 P.2d 640].) 'What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c). The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c).' (People v. Belmontes (1983) 34 Cal.3d 335, 348 [193 Cal.Rptr. 882, 667 P.2d 686], fn. omitted.) In making this determination, '[t]he sentencing judge is to be guided by the criteria listed in rule 4.425, which incorporates rules 4.421 [(aggravating circumstances)] and 4.423[ (mitigating circumstances)], as well as any other reasonably related criteria as provided in rule 4.408 [(enumerated criteria not exclusive)].' (Cal. Rules of Court, rule 4.426(b).)"
On remand, the court must clearly indicate whether it is sentencing defendant to concurrent or consecutive terms, and if it imposes consecutive terms it must designate a principal term and subordinate terms and impose the subordinate terms in accordance with either section 667.6, subdivision (c) or section 1170.1. D. Corrections to Court Records and Abstract of Judgment
At the sentencing hearing on January 28, 2011, the court awarded defendant 941 days of custody credits based on 627 days of actual custody, plus 314 days of conduct credits under section 4019.
At a subsequent hearing on February 4, 2011, conducted by a different judge, the court corrected the credits and reduced them to 721. (§ 2933.1.) The parties agreed that the total number of local custody credits should have been 94, calculated under section 2933.1, not section 4019. The court corrected the sentence to award defendant 721 in total custody credits, comprising 627 in actual credits plus 94 in local custody credits calculated under section 2933.1 (15 percent of 627 equals 94). However, both the February 4, 2011, minute order and the abstract of judgment indicate that the 94 days in local conduct credits were calculated under section 4019, not section 2933.1.
Defendant claims, and the People agree, that the February 4, 2011, minute order and the abstract of judgment must be corrected on remand to reflect that he was awarded 94 days of local conduct credit under section 2933. 1, not section 4019. (People v. Mitchell, supra, 26 Cal.4th at p. 185.) Rather than correct its February 4, 2011, or January 28, 2011, sentencing minute orders, following clarification of the sentence on remand, we will direct the court to issue a new sentencing minute order superseding its prior ones and issue a new abstract of judgment. The new order and abstract must show that the 94 days of local conduct credits were calculated under section 2933.1, not section 4019.
IV. DISPOSITION
The matter is remanded to the trial court with directions to clarify whether defendant's terms are to run concurrently or consecutively as authorized by law. The court is also directed to issue new sentencing minute orders correcting and superseding its prior minute sentencing orders and issue a new abstract of judgment showing that defendant was awarded 94 days of local custody credits under section 2933.1, not section 4019. The court is further directed to forward a copy of the new abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
KING
J.
We concur: RAMIREZ
P. J.
HOLLENHORST
J.