Opinion
A143701
12-14-2017
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL JASON CAVAZOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC073539A)
Appellant Gabriel Jason Cavazos appeals from his convictions on multiple sexual offenses against three victims and his sentence to eleven years four months in state prison, plus two years six months in county jail. He argues that he received ineffective assistance of counsel at sentencing, the trial court erred in denying his motion to continue sentencing, the trial court failed to give unanimity instructions sua sponte on several counts, and his sentence on several counts violated Penal Code section 654. For the reasons that follow, we reverse Cavazos's conviction on count three and remand for resentencing.
All further statutory references are to the Penal Code unless otherwise designated.
I. Factual Background
Cavazos was born September 12, 1980, making him age 29 at all times relevant to the charged offenses. He was convicted of sexual offenses committed against three teenaged girls—ages 17, 16, and 14—on separate occasions. A. Offenses against M.M. on September 25, 2009
M.M. was age 17 and in high school in September 2009. On September 23, 2009, M.M. met Cavazos through her friend Cynthia. Cavazos gave M.M. and Cynthia a ride in his car. When Cavazos told M.M. she was pretty, M.M. said she had a boyfriend. Cavazos responded that M.M. should leave her boyfriend because he could do better. Cavazos said he was a "model promoter."
That night, Cynthia called M.M. and added Cavazos on a three-way call. They discussed modeling and Cavazos suggested M.M. view his Myspace page to see his modeling business. M.M. gave Cavazos her cell phone number so he could text his Myspace site to her. M.M. also gave Cavazos access to her Myspace page. M.M. told Cavazos she had just turned 17; Cavazos's Myspace page said he was 24 years old. M.M. asked Cavazos by text what she had to do to become a model. Cavazos responded she had to send him nude pictures of her intimate parts. M.M. did not send him pictures.
The next day, Cavazos picked M.M. up to take her to school. Instead of driving her to school, Cavazos drove to his home to get something. M.M. said she would wait in the car, but Cavazos told her to come inside. When they went inside, Cavazos closed the door, told M.M. to sit down, and turned the television on to music videos. No one else was in the home. Cavazos told M.M. they could start the modeling now. He instructed her to stand in the living room while he took photographs with his cell phone. M.M. declined because it did not look professional.
Cavazos sat next to M.M. on the couch and started kissing her on the neck. He said she had to loosen up. M.M. told Cavazos to stop. He responded that she was just being shy; after he did what he was going to do, she would not be shy any more. Cavazos then began taking M.M.'s shirt off. He got on top of her and said he wanted to be intimate with her. Cavazos unbuckled her pants and pulled them down. M.M. tried to pull her pants back up and told Cavazos to stop. After Cavazos removed M.M.'s shirt and pants, he said he was going to take pictures of her in her bra and panties. At that point, Cavazos received a phone call.
After the call, Cavazos got back on top of M.M., unfastened her bra, and touched her breast. Cavazos moved his face toward her private parts and tried to remove her underwear. M.M. resisted and they struggled over her underwear for three or four minutes. Cavazos became angry because she would not take her clothes off. He stood up, instructed her to put her clothes back on, and told her she was going to lose her spot to become a model. M.M. went to the bathroom, started crying, and got dressed. When she came out, Cavazos told her to sit on his lap. She wanted to leave, but Cavazos stood by the door and told her she could not leave until she gave him a kiss. M.M. sat back down on the couch without kissing him. At that point, a woman (apparently Cavazos's aunt) arrived at Cavazos's house. She asked Cavazos what he was doing. Cavazos responded that he was not doing anything; he was just going to take M.M. to school.
As Cavazos drove M.M. to school, he held her hand and told her that, once she turned 18, he wanted to have children with her. Upon arriving at the school, Cavazos locked the car doors and told M.M. she could not get out of the car until she gave him a kiss. M.M. tried to get out, but could not open the door. She kissed Cavazos so he would let her out. As she got out, Cavazos told her not to tell anyone what had happened. B. Offenses against E.P. on December 24, 2009
E.P. was age 16 in December 2009. On December 24, 2009, E.P. went with a friend to a party at Cavazos's cousin's house. While there, she met Cavazos, who asked E.P. and her friend to give him a lap dance. They declined. E.P. later went to use the bathroom, where she closed, but did not lock, the bathroom door. As she was in the bathroom, Cavazos entered, locked the door, and turned off the light. E.P. asked, "What the fuck are you doing?" Cavazos pushed her down onto the floor and started pulling her pants and underwear off. E.P. struggled to get up, but Cavazos held her down with his body weight. E.P. repeatedly yelled at Cavazos to get off of her. Cavazos raped E.P. When he was finished, E.P. got dressed and ran out of the bathroom. C. Offenses against S.P. between November 29 and December 24, 2009
S.P. was 14 years old when she and her older sister C.P. met Cavazos between Thanksgiving and Christmas 2009. Cavazos asked for their phone numbers. S.P. did not have a cell phone, so she gave Cavazos C.P.'s cell phone number. S.P. later communicated with Cavazos by telephone, text messages, and Myspace. Cavazos would tell S.P. he wanted to "get with her," meaning have a romantic relationship with her, despite the fact that she informed him she was 14. S.P. would ignore him or say no to the relationship.
One day between Thanksgiving and Christmas, S.P. and C.P. visited Cavazos at his house. S.P., C.P., and Cavazos went into his bedroom. Cavazos asked S.P. and C.P. if they would have "sister sex" with him. C.P. walked out of the bedroom. When S.P. tried to follow her out, Cavazos closed the bedroom door before she could get out. S.P. said to Cavazos, "What are you doing? I want to get out." Cavazos responded that they were just going to talk. Cavazos pulled her toward the bed as she tried to get to the door. Cavazos started touching S.P.'s breasts and unbuttoning her pants. S.P. said "No" or "I don't want to do this." He kept touching her and she kept repeating "No." Cavazos unbuttoned her pants and pulled the zipper down while S.P. tried to push his hand away. S.P. eventually was able to zip up her pants and leave the bedroom.
II. Procedural Background
The San Mateo County District Attorney charged Cavazos with attempting to dissuade a witness (M.M.) in violation of section 136.1, subdivision (b)(1) (count one); misdemeanor sexual battery of M.M. in violation of section 243.4, subdivision (e)(1) (count two); misdemeanor false imprisonment of M.M. in violation of section 236 (count three); rape of E.P. in violation of section 261, subdivision (a)(2) (count four); felony false imprisonment of E.P. in violation of section 236 (count five); communicating with a minor (S.P.) to commit a specified sex act in violation of section 288.3, subdivision (a) (count six); lewd and lascivious act on a child (S.P.) age 14 or 15 in violation of section 288, subdivision (c)(1) (count seven); misdemeanor false imprisonment of S.P. in violation of section 236 (count eight); and communicating with a minor (C.P.) to commit a specified sex act in violation of section 288.3, subdivision (a) (count nine). The information also alleged Cavazos had served two prior prison terms within the meaning of section 667.5, subdivision (b).
Cavazos's trial began on April 30, 2012. At the close of the People's case, the trial court dismissed counts one and nine pursuant to section 1118.1. On May 16, 2012, the jury found Cavazos guilty on all remaining counts.
On March 16, 2013, the trial court denied Cavazos's motion for a new trial. The court then proceeded to sentencing. The court imposed the upper term of eight years in state prison on count four (the rape of E.P.), four months consecutive on count six (communications with S.P.), and eight months consecutive on count seven (lewd act with S.P.), plus one year consecutive for each of Cavazos's two prior prison terms. On count five, the court stayed an unspecified term of imprisonment pursuant to section 654. Thus, the total state prison sentence initially imposed was 11 years. In addition, the court imposed consecutive county jail terms of six months on count two (sexual battery of M.M.), one year on count three (false imprisonment of M.M.), and one year on count eight (false imprisonment of S.P.), for a total county jail sentence of two years six months.
Appellant failed to file a timely notice of appeal. However, after this court issued an Alternative Writ of Mandate, the trial court found that counsel was ineffective for failing to file a notice of appeal and ordered the clerk to accept a notice of appeal. Cavazos filed his notice of appeal on December 1, 2014.
On May 29, 2015, the trial court filed a supplemental abstract of judgment that changed the sentence on count six from four to eight months in state prison, resulting in a total state prison sentence of eleven years four months.
III. Analysis
A. The Trial Court Abused Its Discretion by Denying Cavazos's Motion to Continue Sentencing
Cavazos was represented at trial by appointed counsel Jeffrey Jackson. The jury returned its verdicts on May 16, 2012 and the matter was set for sentencing on June 25, 2012. Sentencing memoranda were filed by both the prosecutor and Jackson. On June 5, 2012, Cavazos filed in pro. per. a motion to have Jackson replaced by another appointed attorney. After a hearing on June 25, 2012, the trial court denied Cavazos's motion. Cavazos then asked for a continuance so he could hire private counsel. The trial court granted his motion.
On July 11, 2012, Cavazos moved to substitute retained counsel Steve Whitworth as his attorney of record. His motion was granted. Whitworth immediately requested that a trial transcript be prepared so he could file a motion for a new trial on behalf of Cavazos. Once the transcripts were prepared, the court on January 18, 2013 set a hearing on Cavazos's motion for a new trial for March 1, 2013. The minute order setting the hearing date contains no reference to sentencing. When the case was called on March 1, 2013, the court announced the matter was on "for motion for new [trial] hearing," with no mention of sentencing. The court heard testimony on the new trial motion and continued the hearing to March 6, 2013. On March 6, 2013, the court heard argument on the new trial motion and denied the motion. Immediately upon denying Cavazos's new trial motion, the trial court announced it intended to move on to sentencing. Whitworth advised the court he was not prepared for sentencing and sought a continuance; he had not yet received the entire file from Jackson, and Cavazos had additional paperwork to present to the court. Because he had not tried the case, Whitworth wanted to talk with Jackson to see how Jackson would have approached sentencing. The trial court, observing that months had elapsed since the verdicts had been returned, denied Whitworth's motion to continue sentencing. The court gave Whitworth a brief recess to talk with his client before sentencing. Whitworth again objected, advising the court he had been given no notice that the matter was scheduled for sentencing that day. The court responded, "We don't give notice for sentencing. It's what occurs." The prosecutor argued in detail that the court should impose the maximum sentence on all counts. When Whitworth was given an opportunity to address the court regarding an appropriate sentence, he simply requested an opportunity to come back to court to make any corrections to the calculation of custody credits granted to Cavazos. Cavazos, in his personal allocution to the court, stated he was not aware he would be sentenced that day, so his family and all the people he wanted to have present for sentencing were not in court.
Cavazos argues he was deprived of his right to counsel and his right to the effective assistance of counsel at sentencing because Whitworth was not prepared for sentencing and made no substantive arguments on his behalf. On a related issue, Cavazos argues the trial court abused its discretion in denying Whitworth's motion to continue sentencing.
A trial court has broad discretion to determine whether good cause exists to grant a motion to continue. The court's decision to deny a motion to continue is reviewed for abuse of discretion. " '[O]nly an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for delay" violates the right to the assistance of counsel.' " (People v. Alexander (2010) 49 Cal.4th 846, 934, quoting Morris v. Slappy (1983) 461 U.S. 1, 11-12.)
In the present case, Whitworth was not given notice that the matter would proceed to sentencing on March 6, 2013. From the date he entered into the case, the only hearings set by the court and addressed by the parties related to the new trial motion. Although the prosecutor and the court knew the case originally had been set for sentencing on June 25, 2012, there was no reference to a sentencing hearing when Whitworth substituted in on July 11, 2012, or when the new trial motion was calendared on January 18, 2013 to be heard March 1, 2013. Nor was there any mention of sentencing on March 1, 2013 when the new trial motion was continued to March 6, 2013. One cannot expect Whitworth to be prepared on March 6, 2013 for sentencing on a multiple-count case when he had been given no notice that a sentencing hearing would occur that day. As will be seen below, the sentencing issues in this case were quite challenging. We find the trial court abused its discretion in proceeding to sentencing without giving Whitworth the opportunity to prepare. Therefore, the sentence imposed on March 6, 2013 is vacated and the matter shall be remanded for sentencing anew. B. Cavazos's Ineffective Assistance of Counsel Issue Is Rendered Moot by Our Remand for Resentencing
We have concluded the trial court abused its discretion in denying Cavazos's motion to continue sentencing. In light of the fact that the trial court will be resentencing Cavazos ab initio on remand, Cavazos's argument that counsel rendered ineffective assistance at sentencing is moot. C. No Unanimity Instruction Was Required on Count Two
Cavazos was charged in count two with the sexual battery of M.M. on September 25, 2009, the day he drove her to his apartment rather than directly to school, in violation of section 243.4, subdivision (e)(1). Trial counsel did not request a unanimity instruction. Cavazos argues the trial court erred by failing to give a unanimity instruction sua sponte as to count two.
Section 243.5, subdivision (e)(1) provides, "Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery
A defendant in a criminal case is entitled to a unanimous verdict. When a single crime is charged and the evidence suggests that more than one act may have constituted the offense, then either the prosecution must elect the specific act upon which it relies to prove the charge or the trial court must instruct the jury that it may convict only if all 12 jurors unanimously agree that the defendant committed the same specific act. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo); People v. Percelle (2005) 126 Cal.App.4th 164, 181-182.) Even absent a request, the trial court has a sua sponte duty to instruct on unanimity when the circumstances warrant the instruction. (People v. Davis (2005) 36 Cal.4th 510, 561 (Davis).) A unanimity instruction is not required, however, " 'when the acts alleged are so closely connected as to form part of one transaction.' " (People v. Benavides (2005) 35 Cal.4th 69, 98 (Benavides), quoting People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
The acts comprising the sexual battery charged in count two—that Cavazos touched M.M.'s breasts and pulled her underpants down against her will—all took place in a short span of time in Cavazos's home. They were part of a continuing course of conduct and constituted a single transaction. Nothing that occurred later in Cavazos's car when he dropped M.M. off at school—the fact that he held her hand and required that she kiss him—could constitute sexual battery because these acts did not involve touching an intimate part of M.M. The prosecutor in closing argument did not suggest to the jury that count two could be satisfied by any conduct other than the touching that occurred in Cavazos's home. Thus, no unanimity instruction was required as to count two. (Benavides, supra, 35 Cal.4th at p. 98; People v. Mota (1981) 115 Cal.App.3d 227, 233.) D. The Trial Court Was Required Sua Sponte to Give an Unanimity Instruction on Count Three
By contrast, the evidence at trial showed that Cavazos twice refused to allow M.M. to leave until she kissed him: once in his apartment and once in his car when he eventually dropped her off at school. Count three charged Cavazos with false imprisonment in violation of section 236, which is "the unlawful violation of the personal liberty of another." While in the apartment, after he molested M.M., Cavazos blocked the door and told M.M. she could not leave until she gave him a kiss. His plan to extort a kiss from M.M. was foiled when Cavazos's aunt came home and asked Cavazos what he was doing with M.M. Cavazos then left with M.M. and drove her to school. As he dropped her off near her school, Cavazos held M.M.'s hand, locked the car doors, and told her she could not leave until she kissed him. M.M. attempted to get out of the car, but could not open the door. Once she kissed him, Cavazos let her out.
At trial, the prosecutor argued that the jury could convict Cavazos on count three either because he held her in his apartment against her will, or because he would not allow her to get out of his car until she kissed him: "So there's a couple different acts that relate to this Count 3 and [M.M.]. Because one, you have the incident in the apartment where she tries to leave and he blocks her; he won't let her go. He wants a kiss was the testimony . . . . [¶] The second one as it relates to M.M. or what happens in the car when they get to the school. He will not let her out of the car." Based on this argument, it is possible that six jurors believed Cavazos held M.M. against her will in the apartment, while the other six concluded he did so in the car. Under these circumstances, the trial court was required sua sponte to give a unanimity instruction. (Davis, supra, 36 Cal.4th at p. 561.)
The People argue any failure to give a unanimity instruction was harmless beyond a reasonable doubt because the jury credited M.M.'s testimony. (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) However, this is not the type of case where the jurors necessarily believed either both acts of false imprisonment must have occurred or none. Because M.M. was allowed to leave Cavazos's home without kissing him shortly after his first demand, some jurors may have concluded the evidence was insufficient to convict Cavazos of false imprisonment for that conduct, while finding that his refusal to allow her to get out of the car until she kissed him was sufficient. Other jurors may have convicted Cavazos based only on the restraint in his home. The failure to instruct on unanimity as to count three was error and we cannot say beyond a reasonable doubt that the error was harmless. (Davis, supra, 36 Cal.4th at pp. 561-562; People v. Thompson, at p. 853.)
As noted, we are remanding for a new sentencing hearing on all counts. However, because of the complexity presented by sentencing on multiple counts involving multiple victims, for the future guidance of the trial court we address below all sentencing issues raised in this appeal by Cavazos. E. Application of Penal Code Section 654 to Counts Two and Three Is Moot
Because we have reversed Cavazos's conviction on count three, the issue whether the trial court was required under section 654 to stay Cavazos's sentence on count three is moot. If, however, the court for any reason is called upon to sentence Cavazos on count three in the future, our discussion in section G below would suggest that any sentence imposed on count three should be stayed under section 654. F. No Unanimity Instruction Was Required on Count Six
Cavazos was charged in count six with contacting or communicating with a minor with intent to commit a specified sexual offense in violation of section 288.3, subdivision (a). Cavazos again argues the trial court was required sua sponte to give the jury a unanimity instruction as to count six because the evidence showed he was in contact with S.P. multiple times between November 26 and December 24, 2009.
Section 288.3, subdivision (a) states, "Every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, . . . with intent to commit [a specified] offense" is guilty of a felony. Subdivision (b) of section 288.3 elaborates: "As used in this section, 'contacts or communicates with' shall include direct and indirect contact or communication that may be achieved personally or by use of an agent or agency, any print medium, any postal service, a common carrier or communication common carrier, any electronic communications system, or any telecommunications, wire, computer, or radio communications device or system."
The crime of communicating with a minor for a specific sexual purpose could be committed by a single act of communicating, or by a series of communications that form a continuing course of conduct over a period of time. In Russo, supra, 25 Cal.4th 1124, our Supreme Court instructed how to determine when a unanimity instruction must be given: "The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a 'particular crime' [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Id. at pp. 1134-1135.)
In the present case, Cavazos was charged in a single count with communicating with S.P., a minor, for the purpose of committing a lewd act during the period between November 26 and December 24, 2009. The evidence showed that Cavazos and S.P. communicated with each other multiple times by telephone, text messages, and Myspace during that time period. The testimony was generic; S.P. described the communications as a group, rather than by individual acts of communication. On cross-examination, Cavazos's counsel elicited the fact that S.P. had initiated many of the communications with Cavazos. In closing argument, both the prosecution and the defense described the series of communications as a whole, rather than focusing on particular calls or texts. The contention between the parties was not whether Cavazos had contacted S.P., but whether he had engaged in a lewd act with her in his bedroom, which was the specific sexual act he was accused of intending to commit when he contacted S.P.
We conclude the trial court did not err in failing to give a unanimity instruction as to count six. The information alleged one violation of section 288.3, subdivision (a) between two specified dates. Under analogous circumstances, courts have stated " '[t]he issue before the jury [is] whether the accused was guilty of the course of conduct, not whether he had committed a particular act on a particular day.' " (People v. Napoles (2002) 104 Cal.App.4th 108, 116 (Napoles), quoting People v. Ewing (1977) 72 Cal.App.3d 714, 717.) The allegation in count six notified the jury that Cavazos was charged with a single course of conduct, to be proved by evidence of more than one act. (Napoles, at p. 117.) The evidence consisted of generic testimony of a series of communications initiated by both Cavazos and S.P. over the time period alleged. Neither the prosecution nor the defense elicited discrete calls, texts, or communications. The issue at trial was not whether Cavazos communicated with S.P., how often, or when; but whether he did so with the intent to commit a specified sex act. Under these circumstances, there was no danger the jury would disagree on which of two or more discrete occasions Cavazos communicated with S.P.; the only question was whether his communications were accompanied by an intent to commit a sexual offense. Under these circumstances, a unanimity instruction would not have served the purpose for which it is intended. (Russo, supra, 25 Cal.4th at p. 1134; Napoles, at pp. 116-117.) G. The Sentences on Counts Six and Eight Must Be Stayed Pursuant to Penal Code Section 654
Counts six, seven, and eight all related to S.P. Count six, as discussed, charged that Cavazos communicated with S.P. with the intent to engage in a lewd act with her. Count seven accused Cavazos of engaging in that lewd act. Count eight charged Cavazos with false imprisonment of S.P.; that is, not letting her out of his bedroom while he molested her as charged in count seven. Cavazos argues that all three counts were based on an indivisible course of conduct and incident to one objective and, therefore, that the sentences on counts six and eight must be stayed pursuant to section 654. He is correct.
The People concede count eight must be stayed because Cavazos restrained S.P. in his bedroom only so he could molest her. We agree. (People v. Walker (1983) 146 Cal.App.3d 34, 41; People v. Wall (1979) 95 Cal.App.3d 978, 990.)
The People argue that section 654 does not bar separate terms for counts six and seven because Cavazos's messages asking S.P. to "get with him" evinced an intent to commit one of the specific sexual offenses listed in section 288.3 separate from count seven. After the briefing was filed in this case, however, the Second District Court of Appeal held in People v. Medelez (2016) 2 Cal.App.5th 659 that a defendant can be convicted of both contacting a minor with intent to engage in oral sex and attempting to engage in oral sex, but that section 654 prohibits punishment on both counts because the contact was initiated for the purpose of engaging the same conduct that was attempted. (Id. at pp. 663-664.) We agree, and we conclude that the same principle applies here. At trial, the prosecutor argued that Cavazos's conduct of molesting S.P. in his bedroom demonstrated his intent in communicating with her. Because Cavazos committed the offenses charged in counts six and seven for the same purpose, section 654 applies.
Of the three counts, count seven carried the longest potential sentence. Therefore, the sentences on counts six and eight must be stayed pursuant to section 654. H. The Trial Court Erred in Increasing Cavazos's Sentence on Count Six
At the sentencing hearing, the trial court imposed on count six a consecutive term of four months in state prison, which was one-third of the middle term for a violation of section 288.3, subdivision (a), communicating with a minor for a specified sexual offense. After the sentencing hearing, the trial court received from the Department of Corrections and Rehabilitation a letter suggesting that the correct sentence for a consecutive term on count six would have been eight months in state prison. The trial court—without a hearing or notice to Cavazos—amended the Felony Abstract of Judgment to change the consecutive sentence on count six from a term of four months to eight months in state prison.
Cavazos argues the trial court violated his Fifth, Sixth, and Fourteenth Amendment due process rights and right to counsel by increasing his sentence without giving Cavazos notice or an opportunity to be heard. He also argues the increased sentence was illegal because the only consecutive sentence authorized by statute was the four months originally imposed. The People concede the original sentence imposed was the correct sentence under the statute and that the increased sentence was illegal. We agree that the only legally authorized consecutive sentence on count six was four months in state prison, so we need not address Cavazos's constitutional arguments.
Section 288.3, subdivision (a) provides that the sentence for a violation of that section is imprisonment in state prison for the term prescribed for an attempt to commit the intended offense. As discussed above, the intended offense was the lewd act upon a child aged 14 or 15 in violation of section 288, subdivision (c)(1), as charged in count seven. The sentence for a violation of section 288, subdivision (c)(1) is imprisonment in the state prison for one, two, or three years, or in county jail for up to one year. The punishment for an attempt to commit a violation of section 288, subdivision (c)(1)—and, therefore for the corresponding violation of section 288.3—is defined in section 664, subdivision (a) as imprisonment for one-half of the term prescribed for a completed violation of section 288, subdivision (c)(1). Therefore, the available triad for count six was six, twelve, or eighteen months in state prison for a concurrent sentence, or one-third the middle term (four months) if consecutive. By increasing Cavazos's sentence on count six to eight months in state prison, the court imposed an illegal sentence.
Cavazos's sentence on count six is vacated. On remand, the trial court may select among the statutorily authorized sentencing options, but any sentence imposed shall be stayed pursuant to section 654. I. The Trial Court Must Impose a Sentence on Count Five and Stay It
On count five, the trial court correctly concluded that any sentence it imposed must be stayed under section 654 because the false imprisonment of E.P. was committed for the purpose of raping her, as charged in count four. As the People point out, the trial court erred, however, by failing to impose a sentence and then staying its execution under section 654. "[W]hen a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence . . . . The sentencing court should stay execution of sentence pending completion of service of sentence upon the greater offense, with the stay to become permanent upon completion of that sentence." (People v. Duff (2010) 50 Cal.4th 787, 796, original italics.)
On remand, the trial court shall impose a sentence authorized by statute and stay its execution pursuant to section 654.
IV. Conclusion
Cavazos's conviction on count three, the false imprisonment of M.M. in violation of section 236, is reversed. The sentences imposed on all counts are vacated. If the People elect to retry Cavazos on count three, or if the parties reach a plea agreement on count three, the trial court shall resentence Cavazos after the completion of the retrial or resolution. If the People elect to dismiss count three, the trial court shall resentence Cavazos on the remaining counts. Any sentences imposed on counts five, six, and eight shall be stayed pursuant to section 654. The matter is remanded to the trial court for further proceedings consistent with this opinion.
/s/_________
Kennedy, J. We concur: /s/_________
Ruvolo, P. J. /s/_________
Rivera, J.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------