Opinion
F072871
01-26-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEWIS SORENSEN, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F12908766)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Robert Lewis Sorensen was convicted by a jury of sodomy with a child 10 years or younger (Pen. Code, § 288.7, subd. (a); count 1), oral copulation or sexual penetration of a child 10 years or younger (§ 288.7, subd. (b); count 2), and three counts of committing a lewd act on a child. (§ 288, subd. (a), counts 3-5). The trial court vacated defendant's sentence on count 2. Defendant was sentenced to an aggregate term in state prison of 35 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends (1) defense counsel rendered ineffective assistance of counsel for failing to object to the testimony of a witness at trial and by failing to successfully argue for the admission of another witness's testimony, (2) his sentence on count 3 must be stayed pursuant to section 654, (3) the trial court failed to understand the scope of its sentencing discretion, and (4) the abstract of judgment must be corrected.
We reject defendant's claims that ineffective assistance of counsel compels reversal of his convictions. However, we agree with defendant's claim his sentence on count 3 must be stayed. Because the instant matter must be remanded for resentencing as a result, we find moot defendant's claim the abstract of judgment must be corrected.
FACTUAL AND PROCEDURAL HISTORY
In 2012, defendant was in the Navy and traveled often. At that time Alexis and her siblings, all minor children, lived with their guardian, M.P. When defendant was in town, he visited them often.
During the weekend of October 20th and 21st, 2012, defendant took the children to his sister's house where he was staying. He returned the children to M.P.'s house on Sunday evening and stayed for a while to visit. During this time, nine-year old Alexis said she "'need[ed] to tell [M.P.] something,'" but she could not do so until defendant left. Alexis acted "very scared, very nervous, [and] very upset."
When defendant left, Alexis told M.P. defendant had touched her. She explained defendant called her into the bathroom, pulled down her pants, "put some goop on his thing and stuck it in her rear-end." Alexis was crying and upset. M.P. notified law enforcement.
On October 23, 2012, Katherine Lanting, a registered nurse at Fresno Community Hospital, performed a forensic examination on Alexis. Alexis told Lanting she had been visiting defendant and playing video games when defendant called her over, took her by the arm into the bathroom, and pulled down her pants. She stated, "'he put some stuff all over [her] bottom, then put his body part inside of [her].'" Lanting clarified the body part Alexis was referring to was defendant's penis.
Alexis stated she did not have any pain, bleeding, trouble urinating, or trouble with bowel movements as a result of the incident. When Lanting attempted to examine the area Alexis said had been penetrated, Alexis became very upset and would not allow Lanting to conduct an examination.
On October 24, 2012, Caroline Dower of the Family Healing Center interviewed Alexis. In the interview, Alexis told Dower defendant called her into the bathroom, insisting that she come despite her refusal. She stated defendant locked the door, told her to pull down her pants, and then pulled down his pants. He put jelly from a blue tube on the inside of Alexis's buttocks and inserted his penis into her anus. Alexis told defendant to stop, pulled her pants up, and ran out of the bathroom.
After defendant's sister came home, Alexis took a shower and washed off the gel. Defendant told Alexis "'[he was] not going to do anything else, that's the last time, I promise.'" He gave her a $20 bill for a Cold Stone gift card. He also told her not to tell M.P. anything or "he would not give [her] anymore birthday presents" and he would "get really mad at [her]."
On more than five occasions between October 1, 2011, and October 10, 2012, while defendant was visiting at M.P.'s place, he would hold Alexis and squeeze her buttocks. During the hugs, he would tell Alexis he loved her and would ask her if she loved him. On two or three occasions, defendant held Alexis on his lap and would not let her get up. She could feel defendant's erect penis through his clothing because "it would always stick up."
Defendant's act of touching Alexis's buttocks supported count 4 and the lap incidents supported count 5.
On October 25, 2012, Officer Joshua Johnson arrested defendant. During police questioning, defendant admitted he had called Alexis into the bathroom, locked the door, and took her pants off. He put lubricant on her buttocks, and his penis touched her "butt-cheek." Defendant denied putting his penis or his fingers inside of Alexis's anus. After Alexis left the bathroom, defendant told her, "I'm sorry. And I won't do it again." He threw the tube of lubricant in the trash.
Defendant admitted previously touching Alexis's buttocks over her clothing approximately 10 times within the previous year. He sometimes had kids on his lap and had erections for unrelated reasons.
On November 1, 2012, Margie Jessen, a family nurse practitioner and forensic nurse, conducted a follow-up examination of Alexis. Jessen examined Alexis's vaginal and anal area, but did not find any physical signs of trauma.
At trial, Alexis testified defendant called her into the bathroom. While inside, defendant took off Alexis's pants, put some jelly on his "private area," and put his private area in the private area she uses to go "poo." When he did so, it was painful. Alexis opened the door and ran out of the bathroom. Alexis testified that when she sat on defendant's lap on previous occasions, he would touch her "down there" and his private part would be hard.
Defense's Case
Defendant testified at trial. He admitted he put a tube of lubricant in his pocket before calling Alexis into the bathroom. When Alexis reluctantly came, defendant locked the door behind her and removed her pants and underwear. After he took off his pants, defendant spread lubricant on Alexis's buttocks. Although he admitted his penis had touched her buttock cheek, he denied penetrating Alexis. He could not recall whether Alexis said anything, but she looked scared.
On previous occasions, defendant would have Alexis on his lap when he had an erection. Defendant claimed he became aroused because of a television show he was watching or because he was thinking of a previous experience. He would remove Alexis from his lap when this occurred. However, on one occasion he held her on his lap, although he could not recall whether he "had achieved an erection at that particular moment."
Defendant claimed that when he hugged Alexis and touched her buttocks, he did not do so in a sexual manner. He admitted there were times when he touched Alexis that could have made her uncomfortable.
DISCUSSION
I. Defense Counsel Did Not Render Ineffective Assistance of Counsel
Defendant contends his defense counsel rendered ineffective assistance of counsel on two grounds. First, defense counsel failed to object to Lanting's testimony that it was not unusual for a victim to show no physical symptoms of a sexual assault, even when a sexual assault has occurred. Second, defense counsel failed to lodge a meritorious argument that Alexis's brother, J., should be permitted to testify as a character witness. We find no error.
A. Ineffective Assistance of Counsel
To prove ineffective assistance of counsel, defendant must show (1) defense counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance resulted in prejudice by depriving the defendant of a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To determine whether trial counsel's performance fell below an objective standard of reasonableness, we look to the record to see if there is any explanation for the challenged aspects of representation. If the reasons for defense counsel's actions are not readily apparent from the record, we will not assume constitutionally inadequate representation and reverse a conviction unless the record discloses "'"no conceivable tactical purpose"' for counsel's act or omission." (People v. Lewis (2001) 25 Cal.4th 610, 674-675.) "If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
B. Defense Counsel Did Not Render Ineffective Assistance of Counsel
1. Defense Counsel Did Not Err by Failing to Object to Lanting's Testimony
a. Lanting's Testimony
At trial, Lanting testified Alexis told her she did not have any pain, bleeding, or trouble urinating or having bowel movements as a result of the incident. The prosecutor asked Lanting, "Based on your training and experience, is that unusual to not have any of those symptoms, even if the allegations are true?" Lanting responded, "[I]t's not unusual for them not to have symptoms, even though, you know, the allegation could be true."
Defense counsel asked Lanting whether physical symptoms of trauma were more likely to manifest in adults following a consensual act of anal penetration, versus a 94-pound child. Lanting replied, "Every case is different. There [are] too many deciding factors. You know, I can't say, yes, I expect it, no, I don't expect it, because science is unpredictable, and the human body is unpredictable." Lanting further explained, "It depends on the history. It depends if the sphincter was previously dilated. It depends if lubricant was used. I can't answer. I can't give you a definite answer to that question. I don't have all the facts."
Defense counsel pressed Lanting further as to why she could not answer whether a nonconsenting child would likely show physical symptoms of trauma over a consenting adult. Lanting explained, " I have seen it both ways. I can't answer that question honestly to you, I can't. I have seen it both ways. I have seen an adult with trauma and no trauma, and I have [s]een kids with trauma and no trauma. I don't know. I can't make a guess, because it would just be a guess." Following further questioning, Lanting added, "I can't tell you, yes, that a 94-pound person would come in and likely to have trauma. I can't confirm that."
b. Defense Counsel Was Not Incompetent for Failing to Object to Lanting's Testimony
Defendant contends Lanting improperly opined it was not unusual for a victim of sexual assault involving anal penetration not to show physical symptoms of the assault. According to defendant, Lanting also testified improperly as to why anal penetration may or may not cause physical injuries. The problem with Lanting's testimony, according to defendant, is that Lanting was not qualified as an expert in the causes and rates of injuries from sexual assaults, and she did not rely on any scientific method in rendering her opinion.
An expert may testify regarding "a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) "[T]he qualifications of an expert must be related to the particular subject upon which he is giving expert testimony." (People v. Hogan (1982) 31 Cal.3d 815, 852, overruled on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.)
Here, the record shows Lanting's testimony was based on her experience conducting forensic examinations of sexual assault victims. "The foundation required to establish the expert's qualifications is a showing that the expert has the requisite knowledge of, or was familiar with, or was involved in, a sufficient number of transactions involving the subject matter of the opinion." (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1115; see Evid. Code, § 802 [a testifying witness may state the reasons for his or her opinion, including, as in the case of an expert, the expert's experience, training, and education].) Contrary to defendant's assertion, Lanting based her opinion on her personal experience rather than unsupported assumptions, factors that are speculative, remote, or conjectural, or "junk science." (See Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 597.)
Defendant further complains, "Lanting's testimony that the evidence was consistent with the allegations being true was an opinion on [Alexis's] credibility and was therefore inadmissible." "Lay opinion about the veracity of particular statements by another is inadmissible on that issue." (People v. Melton (1988) 44 Cal.3d 713, 744; see People v. Sergill (1982) 138 Cal.App.3d 34, 39 [finding reversible error where two officers testified child victim was telling the truth when she reported defendant had sexually molested her]; Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 737 [denial of fundamental fairness occurred where expert testified "that 99.5% of children tell the truth and that the expert, in his own experience with children, had not personally encountered an instance where a child had invented a lie about abuse"].)
In the instant case, the prosecutor asked Lanting, "Based on your training and experience, is that unusual to not have any of those symptoms, even if the allegations are true?" Lanting responded, "[I]t's not unusual for them not to have symptoms, even though, you know, the allegation could be true." We reject defendant's assertion Lanting's opinion amounted to vouching for the credibility of the victim. Lanting never testified the evidence was consistent with Alexis's allegations, nor did she render an opinion on whether she believed Alexis was telling the truth. Lanting merely testified a victim of sexual assault may not manifest physical symptoms of trauma from the assault. Accordingly, we conclude defense counsel did not err by failing to object to the challenged testimony.
2. Defense Counsel Did Not Fail to Adequately Argue for the Admission of J.'s Testimony
Defendant further contends trial counsel was ineffective for failing to make a meritorious argument for the admission of J.'s testimony regarding his knowledge of Alexis's character for truth and veracity. He does not otherwise challenge the trial court's ruling excluding the admission of J.'s testimony. We find no error, nor prejudice assuming error.
a. Background
During trial, defense counsel obtained a recording of J.'s police interview. Defense counsel told the trial court she intended to call J. to testify on defendant's behalf and, depending on the nature of J.'s testimony, she would be playing the interview for the jury. The prosecutor asked for an offer of proof, arguing there was nothing exculpatory in J.'s interview. Defense counsel disagreed, noting J. had stated in the interview that he never observed defendant hug Alexis inappropriately. The prosecutor argued J. had no knowledge as to what occurred in the bathroom between Alexis and defendant, and insofar as defendant had allegedly hugged Alexis inappropriately, J.'s testimony would be only minimally relevant unless the defense could establish J. was always present when defendant hugged Alexis.
The court concluded the interview did not constitute exculpatory or impeachment material under Brady v. Maryland (1963) 373 U.S. 83 (Brady). The court noted J.'s interview corroborated statements by Alexis and admissions by defendant that Alexis and defendant were in the bathroom together. Given defendant's admissions to some of the bathroom-related allegations, the interview did not help the defense at all. The court further explained:
"[U]nless there is some other offer of proof as to how this child's testimony would be relevant in this case, I just don't see the point of forcing this child to come into court, and inevitably, what will happen is he'll end up testifying against [defendant], because the evidence he has corroborates what [Alexis] said, so I don't see the reason to put this child through that, when he really has nothing exculpatory to say, based on this interview. He
might come in and say he never saw [defendant] do anything inappropriate with Alexis, but given your client's admissions, I don't see how that happens."
Defense counsel argued Alexis's statements that the hugs may have been inappropriate could have been subjective. The court reiterated that it did not see the relevance of J.'s testimony because defendant admitted he had held Alexis on his lap when he had an erection. It stated that because J. had no relevant testimony to offer, it would not allow him to testify.
b. Defense Counsel Did Not Err By Failing to Argue J.'s Testimony Was Relevant Character Evidence
Defendant asserts defense counsel erred by failing to make a meritorious argument for the admission of J.'s testimony. According to defendant, J. could have been called as a witness for purposes of questioning him as to Alexis's character for truth and veracity, or lack thereof. Defendant contends J. could have offered testimony showing Alexis was generally dishonest. (Evid. Code, §§ 780, subd. (e) [credibility of a witness may be attacked by evidence his or her general reputation for honesty or veracity is bad], § 1100 [evidence of person's character or a trait of character is relevant when offered as circumstantial evidence of conduct in conformity with such character or trait of character].) We find defendant's argument wholly unpersuasive.
J. told detectives Alexis had been known to lie in the past to avoid getting into trouble. He explained Alexis had previously lied about having a social media account.
We find these statements to have little probative value, if any, on Alexis's general character for truthfulness. Although J. told Detective Johnson Alexis "used to lie a lot," he also stated she did not "mak[e] up stories," and when she had lied, "it was never anything about [defendant]." Given the balance of J.'s statements to detectives, his testimony may likely have harmed defendant's case. The jury could reasonably have inferred from these statements Alexis was generally honest and her allegations against defendant were likely truthful. We reject defendant's claim defense counsel erred by failing to make a meritorious argument for the admission of J.'s testimony.
II. The Sentences Imposed on Counts 1 and 3 Violate Section 654
Defendant contends his sentence on count 3 violates section 654. The Attorney General asserts the trial court could reasonably infer defendant had a separate intent when he committed both counts. We conclude the record does not support the Attorney General's assertion. The evidence shows defendant's act of rubbing lubricant on the victim's buttocks, an act which supported count 3, immediately preceded and directly facilitated the commission of count 1. Accordingly, count 3 must be stayed pursuant to section 654's prohibition against multiple punishment.
A. Background
During the instructional conference, the court explained its understanding of the acts supporting count 1, 2, and 3. If the jury found defendant penetrated Alexis's anus with his penis, that act would support count 1. If the jury found defendant penetrated Alexis with his finger rather than with his penis, that would support count 2. Finally, if the jury found defendant had not penetrated Alexis, but he had touched her buttocks with his penis, consistent with his claim, that act would support count 3. The court further noted there were additional acts which would support count 3, including defendant's act of rubbing lubricant on Alexis's buttocks. Neither defense counsel nor the prosecutor corrected the court's understanding.
In her closing statement, the prosecutor argued the following with respect to the act supporting count 3:
"So for count 3, ... that's for what happened in that bathroom, so pulling her pants down, pulling his pants down and touching her with his hands, if you believe he just rubbed lube on her, and that was the extent of it, or he rubbed lube on her, penetrating her, all of those would be acts that rise to a 288, and in this case, the elements are different. So for a 288, what's required is the defendant willfully touched any part of a child's body, either on bare skin or through the clothing. So, again, we have a situation here of rubbing and touching her with the lube, which even he admits to, although he won't go farther. The second [element], the defendant committed the act with the intent of arousing, appealing to, or the gratifying the lust, passions or sexual desires of himself or the child. In this case, the evidence supports the fact that he was intending to arouse himself .... [¶] ... Preparing,
putting the lube in his pocket, getting [Alexis] in [the bathroom], getting her pants down, there can be no doubt, no doubt what his intent was in that bathroom. And then, again, you don't have to actually prove that he was aroused or appealed to the lust of the perpetrator or the child, and it's also not a defense that the child may have consented to the act."
During her closing statement, defense counsel conceded defendant's admissions established the requisite elements to support count 3. She explained while the elements of count 3, a lewd act upon a child, were indisputably met, the evidence did not support the conclusion defendant had committed count 1 or 2.
B. Legal Principles
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." This statute "prohibits punishment for two crimes arising from a single, indivisible course of conduct." (People v. Islas (2012) 210 Cal.App.4th 116, 129, citing People v. Latimer (1993) 5 Cal.4th 1203, 1208.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor" (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another ground in People v. Correa (2012) 54 Cal.4th 331, 334.) Whether a defendant harbored a separate intent and objective for each criminal offense is a factual determination for the trial court, and its conclusion will be sustained on appeal if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.)
It has long been held that section 654 does not bar imposition of multiple punishments for multiple sex acts on the same victim. (People v. Perez (1979) 23 Cal.3d 545, 553.) "A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act." (Ibid.) Thus, a defendant who commits a number of different sex acts may be separately punished for each act where "[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other." (Id. at pp. 553-554.)
In People v. Madera (1991) 231 Cal.App.3d 845, 855, the defendant was separately punished for rubbing the victim's penis and then, shortly thereafter, committing oral copulation and/or sodomy. In determining whether section 654 required one of the imposed sentences to be stayed, this court held the threshold question was the defendant's intent: Was the defendant's act of touching the victim's penis "to commit a separate base criminal act or to facilitate the oral copulations and sodomies that shortly followed." (Madera, supra, at p. 854.) If the defendant's initial act of touching the victim's penis was preparatory in the sense that it was intended to sexually arouse either himself or the victim, section 654 does not apply. (Madera, at p. 855.) The former act would be a separate criminal act. (Id. at p. 854.) If, however, the defendant's initial act was intended to directly facilitate the commission of the oral copulations or sodomies, section 654 would prohibit separate punishment for the crimes. (Madera, at p. 855.)
Our reasoning was based on the following:
"The distinction for punishment purposes between undefined acts designed generally to arouse and those intended directly to facilitate defined sex acts recognizes the relatively greater culpability of the defendant who commits the former. The reason for the distinction is readily evident. The undefined act is a separate insult to the body—and the spirit—of an unwilling victim or a victim who is statutorily protected by law because of his or her minority, or both. The culpability of the perpetrator is not diminished by the fact the intrusion is 'undefined' in the law." (People v. Madera, supra, at 231 Cal.App.3d p. 855.)
C. Legal Analysis
Defendant claims rubbing lubricant on Alexis's buttocks directly facilitated the act of sodomy (count 1), and as a result, count 3 must be stayed. We agree. Even considering the record in the light most favorable to the judgment (People v. Lindberg (2008) 45 Cal.4th 1, 37), there is insufficient evidence to support the conclusion defendant's act of rubbing lubricant on the victim was, in itself, a means to achieve sexual gratification. Rather, the evidence supports the conclusion defendant's act was intended to facilitate the act of sodomy.
The Attorney General argues "[t]he trial court could reasonably determine that [defendant's] use of lubricant was designed to sexually arouse himself or [Alexis]." There is insufficient evidence in the record to support such a conclusion. There was no evidence, for example, of a significant interval of time between defendant's act of rubbing lubricant on Alexis and penetrating her. Nor was there any evidence defendant moved Alexis after rubbing the lubricant on her, which could permit us to infer that count 1 and count 3 are two separately punishable acts. From the record, it appears the initial act was a means of accomplishing or facilitating the latter act. This is so even though the jury was instructed that multiple acts could support count 3.
The record supports the conclusion count 3 could be sustained if the jury found defendant's penis had touched Alexis's buttocks or if defendant had rubbed lubricant on Alexis. However, in finding defendant guilty of count 1, the jury found he had also penetrated Alexis. This means one of the acts supporting count 3 was incidental to count 1. Insofar as the jury may have found defendant guilty on count 3 based on his act of rubbing lubricant on Alexis, there is insufficient evidence to conclude this act was intended as a means to achieve sexual gratification. As discussed, it appears this act was intended to facilitate count 1.
Although defendant's conduct was unquestionably reprehensible and a violation of section 288, subdivision (a), we are compelled to conclude, under the facts of this case, he cannot be separately punished for counts 1 and 3. We will therefore order count 3 stayed pursuant to section 654. Because the trial court designated count 3 as the principal determinate term, we must remand the matter for resentencing consistent with section 1170.1.
III. The Trial Court's Failure to Impose Concurrent Sentences
Defendant contends the instant matter must be remanded for resentencing because the trial court failed to recognize or exercise its discretion to impose concurrent rather than consecutive sentences. As the matter must be remanded for resentencing pertaining to count 3 and the designation of a different count as a principal term, we discuss this issue only to provide guidance to the court during resentencing.
A. Background
The probation officer's report recommended defendant be sentenced to a determinate term of 10 years for the commission of counts 3 through 5, followed by an indeterminate term of 25 years to life for the commission of count 1.
At sentencing, the trial court stated the following:
"The determinate term would be on count 3, a 288(a), that would be the principal term, mid-term of 6 years. Count 4, 288(a), one-third the mid-term, for two years consecutive to count 1. Pursuant to ... Section 1170.12(a)(7) consecutive sentencing if one or more of the current felonies is a violent or serious felony. Count 5, a 288(a), one-third the middle term of two years, to run consecutive. Total determinate term is 10 years, and then a determinate term of 10 years followed by an indeterminate term for count 1 of 25 to life, for a total term of 30 years to life." (Italics added.)
The trial court misspoke as to defendant's total prison term. After the prosecutor pointed out the court's error, the court clarified defendant's aggregate prison term was 35 years to life.
B. Waiver
The Attorney General argues defendant has failed to preserve his claim for appellate review because he did not lodge a timely and specific objection below. As noted in part II, ante, this matter must be remanded for resentencing. We therefore discuss the merits of defendant's claim to provide potential guidance to the lower court.
C. Legal Analysis
From the record, it appears the trial court, at a minimum, misspoke when it noted it was imposing consecutive sentences pursuant to section 1170.12, rather than section 1170.l.
During sentencing, the trial court stated it was relying on section 1170.12, subdivision (a)(7) to impose consecutive sentences. Section 1170.12, subdivision (a)(7) provides:
"(a) Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious and/or violent felony convictions, as defined in subdivision (b), the court shall adhere to each of the following: [¶] ... [¶]
"(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section.
"(7) If there is a current conviction for more than one serious or violent felony as described in subdivision (b), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law."
As can be seen, section 1170.12, subdivision (a)(7) applies to defendants sentenced under the so-called Three Strikes law. Here, as the Attorney General concedes, there is no evidence defendant suffered any prior strike convictions. We note section 1170.1 sets the general sentencing scheme for multiple convictions. It is possible the court intended to reference section 1170.1 when it was explaining why it was imposing consecutive sentences. Regardless, the court's error is affirmatively shown by the record.
Here, not only did the court inexplicably rely on an inapplicable statute in sentencing defendant consecutively, it did not state any other reason for imposing a consecutive sentence. Although the probation report noted at least two factors which could support the imposition of a consecutive sentence, it also noted one mitigating factor present. As such, we believe prudence compels us to remand the instant matter for resentencing as to counts 4 and 5.
IV. The Abstract of Judgment
In his final claim on appeal, defendant contends the abstract of judgment must be corrected to reflect a total determinate term of 10 years, rather than 35 years. The Attorney General does not object.
The trial court imposed a 10-year determinate term to run consecutively to the 25-year indeterminate term, for an aggregate prison term of 35 years to life. There are two abstracts of judgment. The first abstract reflects the 25-year-to-life indeterminate sentence on count 1 plus an "[a]dditional determinate term." The second abstract reflects the six-year term on count 3 and one-third consecutive two-year terms on counts 4 and 5, but states the "TOTAL TIME ON ATTACHED PAGES" is 25 years and the "TOTAL TIME" is 35 years.
Thus, it appears the trial court added defendant's determinate term and indeterminate term in concluding defendant's total determinate time to be served is 35 years. While this is defendant's aggregate prison sentence, the manner in which the abstract of judgment was completed suggests defendant is serving a total determinate term of 35 years. Because the instant matter must be remanded for resentencing consistent with our conclusions in parts II and III, ante, we need not order amendment of the abstract of judgment.
DISPOSITION
The judgment is reversed solely for resentencing consistent with this opinion. The court is ordered to stay defendant's sentence on count 3.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.