Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050402842.
Marchiano, P.J.
The trial court convicted defendant Jose Aparicio of five sexual offenses and sentenced him to 18 years in prison. He contends the court committed sentencing error by imposing a full consecutive sentence for an offense not enumerated in Penal Code section 667.6, subdivisions (c) and (e). The Attorney General essentially agrees. Accordingly, we remand for resentencing.
I. FACTS
The matter was tried to the court on the basis of police reports, a written stipulation regarding the testimony of the victim, Jane Doe, and the audiotape of defendant’s statement to the police. We take the substantive facts from the probation report.
Defendant is married to the mother of Jane Doe, but is not Jane Doe’s biological father. From December 31, 1999, when Jane Doe was apparently 12 years old, defendant had continuous sexual contact with her until January 2002.
Defendant’s wife would usually leave for work at 5:30 a.m. Defendant would then go into Jane Doe’s room, remove her from her bed, and take her into his. At a frequency of once or twice a week for about 10 months, defendant told Jane Doe to lie next to him in bed and remove her pants and underwear. He told her he wanted to “teach her how to say no to someone who wanted to have sex with her.”
On at least one occasion, with Jane Doe on her back, defendant climbed on top of her, rubbed his finger back and forth on her vagina, licked and sucked her nipples, and tried to penetrate her vaginally.
On several occasions, defendant masturbated behind Jane Doe’s back and ejaculated on her buttocks. On other occasions, he removed her clothing, placed her on her hands and knees on the bed, and sodomized her until he ejaculated. Jane Doe felt a “ ‘slippery substance’ ” on the inside and outside of her rectum.
Defendant was charged as follows:
Subsequent statutory citations are to the Penal Code.
Count 1 – Section 288, subdivision (a), lewd act upon a child under 14, committed February 2001;
Count 2 – Section 288.5, continuous sexual abuse, committed between March 2001 and January 2002;
Count 3 – Section 288, subdivision (a), lewd act upon a child under 14, committed February 2002;
Count 4 – Section 288, subdivision (a), lewd act upon a child under 14, committed February 2002; and
Count 5 – Section 288, subdivision (a), lewd act upon a child under 14, committed January 2003.
The trial court found defendant guilty on all counts.
The trial court sentenced defendant to 18 years in state prison. The court selected count 2, violation of section 288.5, as the base term and imposed a sentence on that count of the middle term of 12 years. The court then imposed a full, separate consecutive term of six years on count 1, violation of section 288, subdivision (a). The court sentenced defendant concurrently on counts 3, 4, and 5.
II. DISCUSSION
Defendant contends that the trial court erred by imposing a full, separate and consecutive sentence on count 1. Defendant is correct. Section 667.6, subdivision (c) authorizes full, separate and consecutive terms for certain enumerated offenses committed on the same victim on the same occasion. Those enumerated offenses are set forth in section 667.6, subdivision (e). The parties agree that section 288, subdivision (a), the offense involved in count 1, is not an enumerated offense under the statute and may not be used to impose a full, separate and consecutive term.
While agreeing with defendant on the merits, the Attorney General contends that defendant has waived the issue by failing to object in the trial court. We disagree because a full, separate and consecutive sentence on count 1 is an unauthorized sentence which may be challenged on appeal in the absence of an objection below. (See People v. Scott (1994) 9 Cal.4th 331, 354.)
We do not feel it appropriate to correct the sentence by modifying the abstract of judgment. In our view, this matter should be remanded for resentencing. We express no opinion on the appropriate sentence for defendant.
Since defendant will be resentenced, we need not reach his additional claims that the trial court improperly employed dual use of facts and did not make a sufficient statement of reasons for imposing a full, separate and consecutive sentence on count 1.
The parties agree that the current abstract of judgment incorrectly states that counts 3, 4, and 5 were committed in 1999. After resentencing, the trial court will issue a new or amended abstract of judgment. That second abstract of judgment shall reflect the correct years in which counts 3, 4, and 5 were committed.
III. DISPOSITION
The matter is remanded to the trial court for resentencing.
We concur: Swager, J., Margulies, J.