Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF029049, Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted Jaime Ayala Delgado of two counts of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) and found true that he committed felony sex offenses against multiple victims (§ 667.61, subd. (e)(5)). Defendant argues the trial court erred in a number of respects when it sentenced him, consecutively rather than concurrently, to a determinate term of six years on the substantive charges and an indeterminate term of 15 years to life on the multiple-victim enhancement. As discussed below, we conclude that the trial court intended to and did sentence defendant to consecutive terms. However, because the trial court expressed a belief that it had no discretion to impose concurrent terms, we order a limited remand so the trial court can exercise its discretion on whether to impose the terms concurrently or consecutively.
All further statutory references are to the Penal Code unless otherwise indicated.
Section 667.61 has since been revised so that the multiple victim allegation is now found at subdivision (e)(4).
Procedural Background
On November 5, 2009, a jury convicted defendant of two counts (counts 1 and 2) of committing a lewd act on a child under the age of 14. The jury acquitted defendant of oral copulation on a child under the age of 10 and the lesser included offense of attempted oral copulation on a child under the age of 10 (§ 288.7, subd. (b)). The jury found true that defendant committed a felony sex offense against more than one victim.
The two counts reflect separate offenses defendant committed against his five-or-six-year-old daughter in 2003 and her 8-year-old friend in 2008.
On December 4, 2009, the trial court purported to sentence defendant to the middle term of six years on the substantive counts, to be followed by 15 years to life on the multiple-victim finding: “The defendant is sentenced to state prison as follows: [¶] With regard to Count 1, the Court is sentencing the defendant pursuant to Penal Code section 1170.1 to the midterm of six years in state prison. Since this is a determinant term, then the defendant must serve his term on Count 1 before he commences his sentence on Count 2. The Court deems Count 1 to be the principal term. [¶] Now, with respect to Count 2, the defendant is sentenced to an indeterminate sentence of 15 years to life under Penal Code section 667.61(b).”
The trial court refers to the multiple-victim enhancement as “Count 2” because it believed the enhancement “only attaches to Count 2.”
Section 667.61, subdivision (b), provides “Except as provided in subdivision (a) [aggravating circumstances warranting a 25-years-to-life sentence]... any person who is convicted of an offense specified in subdivision (c) [including lewd or lascivious act on a person under age 14] under one of the circumstances specified in subdivision (e) [including multiple victims] shall be punished by imprisonment in the state prison for 15 years to life.”
None of the parties objected to the sentence. The minute order for the sentencing hearing reads “Count 2 to Run Consecutive to count 1.” The abstract of judgment filed December 7, 2009, shows that the two sentences are consecutive. This appeal followed.
Discussion
Defendant raises four alternative grounds of error regarding what is in effect a 21-years-to-life term: 1) the record transcript indicates the trial court actually sentenced defendant to concurrent terms; 2) remand is required because the record transcript and clerk’s transcript are in conflict as the whether the terms are consecutive or concurrent; 3) remand is required because the trial court mistakenly believed it had no discretion to impose the sentences concurrently; and 4) the trial court failed to provide a statement of reasons for imposing consecutive terms. We need only address the first and third of these grounds.
1. The Trial Court Sentenced Defendant to Consecutive Terms
As set forth above, the trial court at the sentencing hearing explained that the sentences would have to be served consecutively, in that defendant would have to serve the six-year determinate term before beginning the 15-years-to-life indeterminate term: “Since this is a determinant term, then the defendant must serve his term on Count 1 before he commences his sentence on Count 2.” While the trial court did not specifically use the phrase “consecutive, ” the meaning of “must serve his term on Count 1 before he commences his sentence on Count 2” is perfectly clear as indicating consecutive sentences. If this were not enough, the People provide a citation to case law supporting this common-sense understanding of the sentence imposed. “‘[A] sentence which runs consecutively is one which “shall commence at the termination of the first term of imprisonment to which [the defendant] has been sentenced, or at the termination of the second or subsequent term of imprisonment to which he has been sentenced, as the case may be.’”” (People v. McCracken (1945) 68 Cal.App.2d 574, 576.)
2. Discretion to Impose Concurrent Terms
Defendant argues, and the People concede, that the trial court mistakenly believed it was required to impose consecutive terms. As explained below, we agree and remand the matter to the trial court for the limited purpose of exercising its discretion as to whether to impose the sentences concurrently or consecutively.
The trial court imposed consecutive sentences under the misapprehension that the one strike law (§ 667.61) mandated full, consecutive sentencing. At the time defendant committed the underlying offenses, the one strike law did not explicitly mandate either consecutive or concurrent sentencing, leaving that decision to the trial court’s discretion. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262 (Rodriguez) [Fourth Dist., Div. Two].) In Rodriguez, this Court explained that section 669 sets forth the general rule that sentencing courts have discretion to impose consecutive or concurrent sentences; however, it noted the presumption in favor of discretion applies “[a]bsent an express statutory provision to the contrary....” (Rodriguez, at p. 1262.)
Section 288, subdivision (a) has long provided that nonforcible lewd act offenses shall be punished by terms of three, six, or eight years. (People v. Hammer (2003) 30 Cal.4th 756, 765.) In 1994, however, the Legislature enacted section 667.61, otherwise known as the one strike law. Section 667.61 provides for indeterminate terms of either 15 years to life or 25 years to life for violation of section 288, subdivision (a) and certain other sex offenses if certain circumstances apply, regardless of whether the defendant has prior convictions. (Stats. 1993-1994, 1st Ex. Sess., ch. 14, § 1, p. 8570; People v. Wutzke (2002) 28 Cal.4th 923, 929-930.)
As both parties agree, the trial court clearly retained discretion to impose either consecutive or concurrent terms. (Rodriguez, supra, 130 Cal.App.4th at pp. 1262-1263.) If a court is unaware of its sentencing discretion, the matter must be remanded except where remand would be “an idle and unnecessary, if not pointless, judicial exercise.” (People v. Coelho (2001) 89 Cal.App.4th 861, 889; People v. Deloza (1998) 18 Cal.4th 585, 599-600.) The record shows that the court mistakenly believed it was obliged to impose consecutive terms. During the Marsden hearing held on October 30, 2009, the trial court explained that the plea deal which counsel had advised him to make and which carried a determinate sentence of ten years, would be a better outcome than if he were convicted of all counts and the multiple-victim enhancement. Although the trial court primarily referred to the enhancement as running consecutive to the 15-years-to-life term that would be imposed on count three (oral copulation, of which defendant was ultimately acquitted), this still shows the court erroneously believed the term on the enhancement would have be served consecutive to the term for any other count of which he could be convicted. “Those two counts by operation of law have to run what’s called consecutively, meaning in addition to each other. So if you got convicted of those two counts, sir, your sentence alone would be an indeterminate life sentence with a minimum of 30 years.” “Mr. Delgado, do you understand what I said about your maximum exposure here? In other words, what the sentence would be if you get convicted? Because I don’t have discretion. That’s a mandatory sentence. That’s an indeterminate sentence, two life terms, with a minimum 30 years. I don’t have discretion. If you get convicted, that’s the sentence plus—plus the time that you could be receiv[ing] on Counts 1 and 2.”
People v. Marsden (1970) 2 Cal.3d 118.
The trial court further showed that it misapprehended its sentencing discretion when it set forth its indicated sentence at the beginning of the sentencing hearing, without the 15-years-to-life term on count 3, of which the jury acquitted defendant: “With regard to Count 1, the Court will deem that to be the principal count and sentence the defendant to a determinant term of... the midterm of six years in state prison. [¶] Now, because that is a determinant term, then he has to serve that time and complete his sentence before he begins his indeterminate sentence on Count 2. According to 667.61, the sentence for a conviction for the multiple victim’s enhancement is a sentence to state prison indeterminate 15 years to life. And so on Count 2, then, the sentence will be a sentence of 15 years to life.”
Finally, when the trial court actually sentenced defendant on counts 1 and 2, it again confirmed its understanding that the consecutive sentences were mandatory: “The defendant is sentenced to state prison as follows: [¶] With regard to Count 1, the Court is sentencing the defendant pursuant to Penal Code section 1170.1 to the midterm of six years in state prison. Since this is a determinant term, then the defendant must serve his term on Count 1 before he commences his sentence on Count 2. The Court deems Count 1 to be the principal term. [¶] Now, with respect to Count 2, the defendant is sentenced to an indeterminate sentence of 15 years to life under Penal Code section 667.61(b).” We also agree with the parties that there is no indication in this record that remand would be an idle act.
Disposition
The imposed sentence is reversed. The trial court is directed to conduct a new sentencing hearing where it may exercise its discretion in selecting between a consecutive or concurrent sentence on the multiple-victim enhancement. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.