Opinion
F084253
03-18-2024
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ACOSTA CASTILLO, JR., Defendant and Appellant.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, 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NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF171537A John D. Oglesby, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, 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.
OPINION
MEEHAN, J.
INTRODUCTION
Defendant Miguel Acosta Castillo, Jr. was convicted by jury of a lewd or lascivious act with a child 14 or 15 years of age (Pen. Code, § 288, subd. (c)(1); count 2), sexual penetration by force or fear (§ 289, subd. (a)(1)(C); (count 3), and annoying or molesting a child (§ 647.6, subd. (c); count 8). A prior conviction under section 288, subdivision (a) (section 288(a)), was found true in a bifurcated proceeding, which had been alleged as a circumstance in aggravation under the "One Strike" law (§ 667.61), and as a prior serious or violent felony within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and as a prior serious felony within the meaning of section 667, subdivision (a) (section 667(a)).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced defendant to an indeterminate term of 25 years to life on count 3 (§ 667.61, subd. (a)), plus five years for a prior serious conviction enhancement (§ 667(a)); on count 2, the court imposed the middle term of four years, plus five years for the prior serious conviction enhancement (§ 667(a)), both of which were stayed under section 654; and on count 8, the court imposed the middle term of eight years (§§ 647.6, subd. (c)(2), 667, subd. (e)(1) (section 667(e)(1)). The aggregate term of incarceration was 13 years determinate, followed by one consecutive term of 25 years to life.
Defendant appeals, asserting claims of sentencing error that we will address in turn. As discussed post, the sentence is unauthorized in multiple respects with regard to counts 2 and 3. As such, the sentence must be vacated, and remand is required for a full resentencing consistent with this opinion.
We forego a detailed summary of the evidence presented at trial as it is unnecessary to the sentencing issues on appeal.
Defendant was charged with sexual offenses related to two victims, Jane Doe 1 and Jane Doe 2. As to Jane Doe 1, defendant was charged with various sexual offenses over a course of years (counts 1-7). As to Jane Doe 2, defendant was accused of one sexual offense (count 8). At trial, the jury found defendant not guilty on counts 1, 5, 6 and 7, but found him guilty as to counts 2, 3 and 8. The jury deadlocked on the lesser offenses for counts 1 and 5, and deadlocked on count 4; a mistrial was declared as to those deadlocked counts.
In a bifurcated court trial regarding an alleged prior offense under section 288(a), a certified record of conviction was admitted, and the trial court found the prior conviction true beyond a reasonable doubt. The trial court indicated that prior conviction was related to a different enhancement, One Strike and Three Strike allegations, and articulated the prior conviction was true for those purposes.
DISCUSSION
I. Count 3: Unauthorized Sentence
We directed the parties to submit supplemental briefs regarding whether the 25-year-to-life sentence imposed on count 3 was unauthorized for failure to double the sentence under section 667(e)(1). Defendant argues the sentence is not unauthorized because the trial court had discretion to strike/dismiss the prior serious felony conviction allegation under section 288(a) that was found true. The People indicate the sentence is unauthorized because it was not doubled under the Three Strikes law, as required under section 667(e)(1).
A. Indeterminate Sentence on Count 3
On count 3, defendant was convicted of one count of forcible sexual penetration on a minor who is 14 years of age or older. (§ 289, subd. (a)(1)(C).) This offense is a violent felony under section 667.5, subdivision (c)(11), and it was alleged to be a serious felony under section 1192.7, subdivision (c)(25), within the meaning of the Three Strikes law. Attached to count 3 was an aggravating-circumstance allegation under the One Strike law that defendant has suffered a prior conviction under section 288(a) within the meaning of section 667.61, subdivision (d)(1) (section 667.61(d)(1)). That One Strike allegation was found true by the trial court in a bifurcated proceeding. It was also alleged and proven true that the prior conviction under section 288(a) was a serious felony conviction within the meaning of section 667(a), and that this same prior conviction was also a serious felony within the meaning of the Three Strikes law.
The trial court sentenced defendant to 25 years to life under the One Strike law due to the true finding on the section 667.61(d)(1) allegation (id., subds. (a), (d)), plus five years for the prior serious felony conviction under section 667(a). However, because defendant suffered a prior serious and/or violent conviction (i.e., a strike), he was subject to mandatory punishment under the Three Strikes law as a second strike offender. (§§ 667(e)(1), (f)(1); People v. Acosta (2002) 29 Cal.4th 105, 128 [One Strike law does not apply to the exclusion of the Three Strikes law].)
Section 667(e)(1) provides that "If a defendant has one prior serious or violent felony conviction ... that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." As the trial court did not strike the prior strike conviction found true, count 3 was subject to mandatory punishment under the Three Strikes law (§ 667, subd. (f)(1)), requiring a sentence of 50 years to life under section 667(e)(1), resulting in a sentence of 50 years to life on that count, plus five years determinate for the enhancement under section 667(a). (People v. Acosta, supra, 29 Cal.4th at pp. 128-132 [proper to use prior strike conviction as a basis for referencing One Strike law in calculating term under Three Strikes law]; see Couzens &Bigelow, Cal. Practice Guide: California Three Strikes Sentencing (The Rutter Group 2023) § 7:1.)
B. Legal Principles
An unauthorized sentence is one that "'could not lawfully be imposed under any circumstance in the particular case'" regardless of the facts. (In re G.C. (2020) 8 Cal.5th 1119, 1130, quoting People v. Scott (1994) 9 Cal.4th 331, 354.) This "commonly occurs where the court violates mandatory provisions governing the length of confinement." (People v. Scott, supra, at p. 354, fn. omitted.) In such a circumstance, the sentence is "subject to judicial correction whenever the error [comes] to the attention of the trial court or a reviewing court," even if the correction increases the sentence originally imposed. (People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved on a different ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) In contrast, "claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (People v. Scott, supra, at p. 354.)
C. The Sentence on Count 3 was Unauthorized
The trial court may dismiss a prior strike conviction under section 1385, subdivision (a) (section 1385(a)). (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.) The discretion afforded the trial court under section 1385(a) to dismiss a prior strike conviction is limited. (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) Such a determination must be made "in furtherance of justice" under section 1385(a), considering the nature and circumstances of the current crime, the particulars of the defendant's background, and whether the defendant is outside the spirit of the Three Strikes law. (Williams, supra, at p. 161.) The trial court's decision to dismiss the prior strike conviction must be stated orally on the record and, if requested by a party or where the sentencing hearing is not recorded, placed in an order on the minutes. (§ 1385(a).) If a prior strike conviction under the Three Strikes law is alleged and found true, application of the Three Strikes sentencing scheme is mandatory (§ 667, subd. (f)(1)) unless the trial court exercises discretion under section 1385(a) to dismiss or strike the prior strike conviction. (See People v Strong (2001) 87 Cal.App.4th 328, 337338 [noting the Three Strikes law establishes a sentencing requirement that must be applied unless the court concludes that the defendant falls outside the spirit of the law].)
The trial court has a duty to impose sentence in accord with the law. (People v. Bradley (1998) 64 Cal.App.4th 386, 390.) It has long been recognized that a trial court's failure to either impose punishment for an enhancement pleaded and found true or dismiss or strike the enhancement under a statute permitting such discretion results in an unauthorized sentence-the trial court may not elect not to impose punishment on a pleaded and proven enhancement allegation where it has not exercised its discretionary authority to strike or dismiss the enhancement. (See, e.g., People v. Benton (1979) 100 Cal.App.3d 92, 100, 102 [trial court's failure to either impose sentence for enhancements under § 667.5, former subd. (b), or strike the additional punishment under § 1170.1, former subd. (g), rendered sentence unauthorized]; People v. Irvin (1991) 230 Cal.App.3d 180, 191-192 [failure to impose one-year enhancement for prior prison term enhancement or strike it pursuant to § 1170.1, former subd. (h), rendered sentence unauthorized]; People v. Bradley, supra, at pp. 391-392 [failure to impose sentence or strike prior prison term enhancement under § 1385, former subd. (a), or § 1170.1, former subd. (h), rendered sentence unauthorized].)
This has also been extended to a trial court's failure to either strike a properly pleaded and proven prior strike conviction under section 1385(a) or impose sentence under the Three Strikes law. (People v. Vizcarra (2015) 236 Cal.App.4th 422, 436 (Vizcarra) [failure to impose enhancement and double sentence under Three Strikes law or exercise discretion under § 1385 to strike the prior resulted in unauthorized sentence]; People v. Morales (2003) 106 Cal.App.4th 445, 454-456 [reversing where trial court failed to double terms for current offense despite serious prior felony conviction or to exercise discretion to strike prior conviction].)
Defendant argues that because the trial court has discretion under section 1385(a) to strike the prior strike conviction, the court could have lawfully imposed the 25 years to life sentence on count 3; thus, the sentence was not unauthorized. Defendant contends older cases, such as Vizcarra, that held sentences to be unauthorized where the trial court failed to either strike a prior strike conviction under section 1385 or impose the punishment on it have been undermined by the 2015 amendment to section 1385(a).According to defendant, although strict compliance with section 1385(a) has long been required (see, e.g., People v. Bonnetta (2009) 46 Cal.4th 143, 150), strict compliance is no longer mandatory under the amended version of the statute, and any defects under section 1385(a) are now forfeitable sentencing errors.
Prior to 2015, section 1385, former subdivision (a), required that the "reasons for the dismissal must be set forth in an order entered upon the minutes." (See Stats. 2000, ch. 689, § 3.) Currently, section 1385(a) provides, in relevant part, "The judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record...."
We disagree. The is not an issue of whether the trial court strictly complied with section 1385(a)-the trial court did not make any dismissal under the statute. Section 1385(a) does not require the trial court to take any action when it declines to make its own motion and order a dismissal under the statute. Here, the trial court never invoked section 1385(a) or gave any indication whatsoever that it was dismissing the prior strike conviction, nor did either party ask the trial court to exercise its discretion to do so. (See People v. Bradley, supra, 64 Cal.App.4th at p. 392 [in addition to the fact no statement was entered in the minutes dismissing under § 1385, former subd. (a), the trial court never stated orally it was dismissing or striking enhancements; thus, no dismissal occurred].) The trial court discussed aggravating and mitigating circumstancesregarding its selection of the middle term for counts 2 and 8 (which were subject to determinate terms selected from statutory sentencing triads), but this discussion was not aimed at, nor did it address, section 1385(a)'s furtherance of justice standard which requires consideration of factors establishing defendant is outside the spirit of the Three Strikes law. (See Williams, supra, 17 Cal.4th at p. 161.)
The trial court granted defendant's demurrer to the aggravating circumstances alleged for purposes of imposing upper term sentences under section 1170, subdivision (b)(2), on determinate counts. The trial court subsequently considered factors in aggravation and mitigation for purposes of selecting between the low or middle terms. Initially, the trial court noted defendant's performance on felony probation was appropriate, defendant has suffered childhood trauma, and his prior conviction was more than five years old. Later in the sentencing, however, the court observed defendant had previously violated his conditions of probation and the circumstances in aggravation outweighed the circumstances in mitigation.
That is not to say the mitigating factors identified by the court are wholly irrelevant to a section 1385(a) determination, but it is clear the trial court was not weighing the nature and circumstances of defendant's present felonies and the prior serious and/or violent felony conviction in light of his particular background, character and prospects to determine whether he falls outside the spirit of the Three Strikes law. (See Williams, supra, 17 Cal.4th at p. 161.).
Because the trial court took no action with respect to section 1385(a), this constitutes a decision not to strike or dismiss the prior strike conviction. As such, defendant's sentence under count 3 was required to be imposed under the Three Strikes sentencing scheme as a second-strike sentence. (§ 667, subd. (f)(1).) The term of 25 years to life was imposed due to the aggravating circumstance alleged and proven true under section 667.61(d)(1), and it was subject to mandatory doubling under the Three Strikes law, but that did not occur. (§ 667(e)(1); People v. Acosta, supra, 29 Cal.4th at pp. 128-132 [proper to use prior strike conviction as a basis for referencing One Strike law in calculating term under Three Strikes law]; see Couzens &Bigelow, Cal. Practice Guide: California Three Strikes Sentencing (The Rutter Group 2023) § 7:1.) Because imposition of sentence under the Three Strike law was mandatory under these circumstances, the failure to impose sentence under section 667(e)(1) rendered the sentence unauthorized. (Vizcarra, supra, 236 Cal.App.4th at p. 436.)
This is not a situation where the trial court dismissed the prior strike conviction but failed to state any reasons orally on the record or otherwise stated those reasons inadequately.
As it stands, the sentence on count 3 constitutes an unauthorized leniency, and is subject to correction whenever the error is detected. (People v. Serrato, supra, 9 Cal.3d at p. 763.) This unauthorized sentence constitutes changed circumstances and warrants full resentencing. (People v. Hill (1986) 185 Cal.App.3d 831, 834 ["When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme[] ... [and] may reconsider all sentencing choices."].) The trial court is free to reconsider all of its discretionary choices upon resentencing (including whether to strike or dismiss the prior strike conviction under § 1385(a) with respect to any of the counts) so long as any subsequent increase in the aggregate sentence from the original is due solely to correction of the unauthorized portion of the sentence on count 3. (People v. Price (1986) 184 Cal.App.3d 1405, 1413 ["If an increase in penalty has no nexus to the original illegality in the sentence, . . . [t]he general rule applies that in California a harsher penalty may not be imposed after a successful appeal."]; see People v. Trammel (2023) 97 Cal.App.5th 415, 486 [only correction of unauthorized leniency may increase original aggregate sentence under Serrato exception].)
II. Count 8: Section 647.6
The parties dispute whether the trial court's finding that the prior conviction was true was ineffective with respect to count 8 because the trial court did not explicitly reference section 647.6, subdivision (c)(2) (section 647.6(c)(2)) in making that finding.
A. Background
A violation of section 647.6, subdivision (a), for annoying or molesting a child under the age of 18 years is a misdemeanor. However, section 647.6(c)(2) renders the offense a felony if the defendant has suffered a prior conviction under section 288(a), among others.
Section 647.6(c)(2) provides, "Every person who violates this section after a previous felony conviction under Section 261, 264.1, 269, 285, 286, 287, 288.5, or 289, or former Section 288a, any of which involved a minor under 16 years of age, or a previous felony conviction under this section, a conviction under Section 288 , or a felony conviction under Section 311.4 involving a minor under 14 years of age shall be punished by imprisonment in the state prison for two, four, or six years." (Italics added.).
Here, in charging count 8, the prosecutor expressly alleged defendant's conduct violated section 647.6(c)(2), and that defendant had a prior conviction under section 288(a). The same prior conviction was also alleged for purposes of a prior serious conviction enhancement under section 667(a) on counts 2 and 3, as a serious and/or violent offense conviction under the Three Strikes law on counts 3 and 8, and as a One Strike aggravating circumstance on counts 2 and 3.
The prosecutor motioned the court to amend the information to include a Three Strikes allegation under section 667(e), as to counts 4 through 8, and sought to add aggravating circumstance allegations under counts 1 through 8. During court proceedings, the prosecutor made an oral motion to amend the information with respect to count 2 to include an allegation under the Three Strikes law based on the prior conviction under section 288(a), and to include a prior serious felony conviction enhancement allegation under section 667(a). The trial court granted the prosecutor's requests for amendment and ordered the information amended so that count 2 was amended "to add in the allegations that are contained in Count 1 ._" Count 1 alleged an aggravating circumstance under section 667.61(d)(1) of the One Strike law.
The jury found defendant guilty of annoying or molesting a child in violation of section 647.6(c)(2). Defendant agreed to a bifurcated court trial on the prior conviction allegation, which was relevant to allegations regarding enhancements and the One Strike and Three Strikes laws. After reviewing the prior conviction evidence submitted by the prosecution, the trial court found as follows:
"We're back on the record at this time in the Castillo matter. Mr. Castillo is present. Both counsel are present. The Court has had a chance to review the exhibits that have been submitted on the issue of the priors. There are three counts before the court where the defendant was convicted in which there are prior [sic] alleged Count 2, Count 3, and Count 8. [¶] The prior conviction that is in play is the prior conviction from August 30th, 2001, [Kern Superior Court] Case Number BF095347A, for a previous conviction of [section] 288(a) on or about August 30th of 2001. There have been numerous documents submitted on that particular prior conviction and the Court has evidence before it that persuades the Court beyond a reasonable doubt that the defendant did suffer a legal conviction for that offense.
"And, with that, the Court does find that allegation to be true. And it is true in several different ways. On Count 2 there's an allegation under [section] 667.61(d)(1) which alleges that prior. So the Court finds that prior to be true. There's an allegation as a strike under [section] 667(e) and a serious felony under [section] 667(a). Those likewise would be true since they all rely on the same prior conviction.
"On Count 3 the same allegations are alleged, the [section] 667.61(d)(1), the [section] 667(e), and the [section] 667(a) as I've already recited, all relying on this same prior conviction. The Court does find those to be true.
"Finally, on Count 8 that has an allegation of [section] 667(e) and the Court finds that allegation to be true."
At the sentencing hearing, the trial court explained the following with respect to count 8:
"On Count 8, the [section] 647.6(c)(2) with the ... [section] 667(e), the Court would note for the record and probation commented on this. There was no specific finding by the Court or the jury that the defendant had suffered that strike allegation. The Court made findings on the same offense as to the other counts which the Court has sentenced him on and as the probation office pointed out, under our sentencing law that oversight by the Court and/or the jury does not eliminate it from the sentencing scheme and the Court will impose it as if there had been a true finding made by a jury or by myself on that prior allegation because it has been found in this proceeding on other charges that that actual prior allegation is true...."
The court proceeded to impose a middle term felony sentence of eight years under section 667(e)(1), which doubled section 647.6(c)(2)'s middle term of four years.
B. Analysis
Defendant argues the trial court's failure to expressly reference section 647.6(c)(2) in finding the prior conviction true renders the finding ineffective with respect to count 8. Drawing on In re Candelario (1970) 3 Cal.3d 702 (Candelario) and People v. Farias (2023) 92 Cal.App.5th 619 (Farias), review granted September 27, 2023, S281027, defendant maintains the trial court's silence as to section 647.6(c)(2) in making the prior conviction finding must be treated as an implicit act of leniency, which renders the felony sentence unauthorized. Relying on People v. Chambers (2002) 104 Cal.App.4th 1047 (Chambers), the People contend the trial court's imposition of the felony punishment under section 647.6(c)(2) is an implicit finding the prior conviction was found true for the purposes of section 647.6(c)(2).
In Candelario, the defendant was charged with selling heroin, and it was alleged the defendant had suffered a prior conviction for drug possession. (Candelario, supra, 3 Cal.3d at p. 704.) At the arraignment, the defendant admitted the prior conviction allegation and was subsequently found guilty of the drug charge at trial. (Ibid.) Neither the minutes from sentencing nor the abstract of judgment mentioned the prior conviction allegation, or imposition of sentence thereon. (Ibid.) About a month after judgment was pronounced, the trial court filed an amended abstract of judgment, which imposed sentence for the prior conviction. (Ibid.) On review, our Supreme Court explained that "[r]eference to the prior conviction must be included in the pronouncement of judgment for if the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court." (Id. at p. 706.) As no sentence was imposed for the prior conviction during pronouncement of judgment, the subsequent amendment of the judgment was invalid and ineffective as the failure to impose sentence could not be attributed to clerical inadvertence. (Id. at p. 707.)
Candelario is distinguishable from the facts presented here. Unlike in Candelario, the trial court here made an express finding during the bifurcated portion of the trial that the alleged prior conviction under section 288(a) was true beyond a reasonable doubt in a manner that complied with both section 1158 and section 1167. Further, at sentencing, the trial court imposed sentence on count 8 by express reference to section 647.6(c)(2)- which elevates a violation of section 647.6, subdivision (a), to a felony if committed by a person with a prior conviction under section 288(a). The term imposed was the felony middle term prescribed under section 647.6(c)(2), which was then doubled under section 667(e)(1), in relation to the allegation the prior conviction was a serious and/or violent felony under the Three Strikes law.
Section 1158 states, "Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. The verdict or finding upon the charge of previous conviction may be: 'We (or I) find the charge of previous conviction true' or 'We (or I) find the charge of previous conviction not true,' according as the jury or the judge find that the defendant has or has not suffered such conviction. If more than one previous conviction is charged a separate finding must be made as to each." Section 1167 provides, "When a jury trial is waived, the judge or justice before whom the trial is had shall, at the conclusion thereof, announce his findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered upon the minutes."
On this record, there is no silence from which to imply leniency-having found the prior conviction true beyond a reasonable doubt, there can be no implication the trial court simultaneously found the same prior conviction not true because it did not reference section 647.6(c)(2) in making the finding. Additionally, because the trial court sentenced defendant to the felony middle term and expressly referenced section 647.6(c)(2) in doing so, there was no silence at sentencing that could be inferred as an act of leniency.
Moreover, even if the trial court's express true finding as to the prior conviction under section 288(a) was insufficient for purposes of count 8 absent explicit reference to section 647.6(c)(2) in making the finding, People v. Clair (1992) 2 Cal.4th 629 (Clair) governs the outcome. There, the trial court altogether failed to make a finding on a firearm enhancement, but unlike in Candelario, expressly imposed sentence on the firearm enhancement when it pronounced judgment, which the high court deemed a sufficient implied finding of true on the enhancement. (Clair, supra, at p. 691, fn. 17.)
Chambers presented nearly identical circumstances to Clair. In Chambers, the defendant was convicted of robbery during a bench trial, but the court did not mention the attached firearm enhancement allegation; the minutes stated simply that the defendant was found guilty. (Chambers, supra, 104 Cal.App.4th at pp. 1048-1049.) At the sentencing hearing, counsel and the court proceeded as if a true finding on the personal use of a firearm allegation had been made. (Ibid.) On review, the appellate court relied on Clair and held the trial court impliedly-but sufficiently-rendered a finding of true as to the firearm enhancement allegation when it imposed sentence for that enhancement. (Chambers, supra, at p. 1050 ["Here the record is not 'silent' as the oral pronouncement of judgment 'speaks' to impliedly affirm the truth of the use of a firearm allegation."].)
Defendant differentiates Clair and Chambers by pointing out only one enhancement finding was at issue in those cases so the reviewing court could confidently conclude the imposition of sentence on the enhancement implied an underlying true finding on the enhancement, whereas here the prior conviction finding on count 8 related not just to the penalty provision under section 647.6(c)(2), but also to the prior strike allegation for purposes of section 667(e); the same prior conviction was also the basis for other enhancements and application of One and Three Strike sentences on other counts.
We are not convinced. The trial court's express reference to section 647.6(c)(2) and imposition of the felony sentence under section 647.6(c)(2) eliminated any possibility for confusion. Also, Farias is distinguishable on this ground, and we are not persuaded by defendant's reliance on it. In Farias, the trial court found prior conviction allegations true; in doing so, however, the trial court indicated the prior convictions were true for the purposes of the section 667(a) enhancement allegations, but did not mention whether the same prior convictions were also true for purpose of the prior strike allegations under section 667, subdivisions (d) and (e). (Farias, supra, 92 Cal.App.5th at p. 635, review granted.) Additionally, while imposing Three Strike sentences at the sentencing hearing, the trial court did not make any express connection between the prior convictions found true and the Three Strike provisions by referencing "'strike'" or "'violent,'" nor did the court cite section 667, subdivisions (d) or (e), or section 1170.12 at sentencing or in the abstracts of judgment. (Farias, supra, at p. 635.) Differently here, the trial court expressly referenced section 647.6(c)(2) in imposing sentence on count 8, which enhances a section 647.6, subdivision (a) offense to a felony if it is committed by a person with a prior conviction under section 288(a).
We express no opinion whether Farias is persuasive or correct in its application of Candelario.
In sum, there was no error in making the prior conviction finding; and, even if the prior conviction finding was not properly made with respect to count 8, the sentence imposed sufficiently implied such a finding. The prior conviction allegation under section 288(a) was pleaded in the information under count 8, which explicitly referenced section 647.6(c)(2) and gave defendant notice the felony penalty would be sought based on that prior conviction; the trial court expressly found the section 288(a) prior conviction to be true beyond a reasonable doubt; that true finding was made in conformance with sections 1158 and 1167; and section 647.6(c)(2) was explicitly cited in sentencing on count 8, and the sentence required under section 647.6(c)(2) for such a prior conviction was expressly imposed.
III. Remaining Issues Related to Count 2
The parties agree the section 667(a) prior serious conviction enhancement on count 2 was unauthorized. The parties also agree the trial court's reference to a One Strike allegation under section 667.61(d)(1) in relation to count 2 was erroneous, and thus it should be stricken. We concur.
A. Background
Under count 2, the information alleged a violation of section 288, subdivision (c), which prohibits the commission of a lewd or lascivious act described in section 288(a) committed with the intent described in subdivision (a), upon a victim 14 or 15 years old, where the offender is at least 10 years older than the victim. (§ 288, subd. (c)(1).) Pertaining to count 2, the information was amended on February 8, 2022, to include a prior strike conviction allegation for purposes of section 667(e), and a prior serious felony enhancement allegation under section 667(a). In addition, a minute order issued on that date reflects the court granted the People's motion to add a prior conviction allegation under section 667.61(d)(1) on count 2.
At the bench trial on the prior conviction allegations, the trial court found as follows: "On Count 2 there's an allegation under [section] 667(d)(1) which alleges that prior [under section 288(a)]. So the Court finds that prior to be true. There's an allegation as a strike under [section] 667(e) and a serious felony under [section] 667(a). Those likewise would be true since they all rely on the same prior conviction." At sentencing, the trial court imposed the following with respect to count 2: "On Count 2, the [section] 288[, subdivision] (c) with the [section] 667.61(d)(1) prior with the strike under [section] 667(e), as well as the [section] 667(a) prior having been found true, the defendant is sentenced to the Department of Corrections for the mid-term of four years." The sentencing minute order does not refer to section 667.61(d)(1).
B. Section 667(a) Enhancement
The parties agree, and we concur, the imposition of the prior serious felony enhancement under section 667(a) on count 2 is unauthorized.
Section 667(a)(1) provides, "A person convicted of a serious felony who previously has been convicted of a serious felony in this state ... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.. . ." Section 667(a)(4) states that, "As used in this subdivision, 'serious felony' means a serious felony listed in subdivision (c) of Section 1192.7."
Defendant's current offense under count 2 is for a violation of section 288, subdivision (c). As the People concede, this is not a serious felony under section 1192.7, subdivision (c). As such, the section 667(a) prior serious felony enhancement does not apply, and the five-year enhancement imposed on count 2 under section 667(a) is unauthorized.
C. Section 667.61(d)(1) Finding as to Count 2 Shall be Stricken
The parties further agree, and we again concur, that the court's true finding as to section 667.61(d)(1) on count 2 should be stricken, or alternatively, the allegation should be dismissed.
The One Strike law under section 667.61 applies only to a current conviction for a qualifying offense listed in section 667.61, subdivision (c), and where that offense is committed under one or more specifically pleaded and proven aggravating circumstance(s) enumerated in section 667.61(d) or (e). A violation of section 288, subdivision (c), is not a qualifying offense under section 667.61, subdivision (c). Thus, the One Strike law does not attach to defendant's current conviction for a violation of section 288, subdivision (c), and an aggravating-circumstance allegation under section 667.61(d)(1) attached to this count cannot be sustained.
This error may stem from possible confusion about the scope of the prosecutor's amendment request that was granted on February 8, 2022.
D. Section 290.3 Fine as to Count 2
As to count 3, defendant was ordered "to pay a fine of $500 pursuant to [section] 290.3 ..., plus a penalty assessment of $1,550. Both sides waiving the reading of that assessment the Court will not break that down further." On count 2, the court also ordered defendant, in relevant part, "to pay the following fines and fees. That would be $500 under ... Section 290.3, plus a penalty assessment of $1,550." On count 8, the court again ordered defendant "to pay a fine of $500 pursuant to Section 290.3 ..., as well as the penalty assessment of $1,550."
Defendant argues the fines imposed under section 290.3 are punitive, and punitive fines cannot be imposed on stayed counts. As such, defendant maintains the section 290.3 fines imposed on count 2 must also be stayed under section 654.
The People agree that section 290.3 fines are punitive and cannot be imposed on counts that are stayed under section 654. However, the People maintain fines and fees totaling $6,150 on these three counts is not reflected in the abstract of judgment, and reducing the fine and fees associated with count 2 "would not result in a fine consistent with that shown in the abstract of judgment." For this reason, respondent contends the matter should be remanded to the trial court for a clear breakdown of the fines.
The parties are correct: the section 290.3 fines imposed on count 2 should have been imposed and then stayed. (People v. Gonzales (2017) 16 Cal.App.5th 494, 504 [a fine under § 290.3 is punitive, it may not be "imposed on counts that are stayed pursuant to section 654"].) As full resentencing is required, this issue shall be addressed at the resentencing hearing, and an amended abstract of judgment will be prepared. The parties may present any arguments they may have to the trial court in the first instance about how the fines are to be calculated and/or how they will be reflected on the amended abstract of judgment issued upon resentencing.
DISPOSITION
The sentence is vacated, but the judgment is otherwise affirmed. The case is remanded for a full resentencing consistent with this opinion.
WE CONCUR: POOCHIGIAN, Acting P. J., DeSANTOS, J.