Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA062053. Michael K. Kellogg, Judge.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Fred DiPaolo (defendant) appeals from the judgment imposed by the trial court following his conviction of three counts of oral copulation/sexual penetration with a child under 10 years of age, in violation of Penal Code section 288.7, subdivision (b). The trial court sentenced defendant to 15 years to life as to count 1, a consecutive 15-year-to-life term as to count 2, and a concurrent term of 15 years to life as to count 3. Defendant was accorded 335 days of presentence custody credit, consisting of 335 days of actual custody and no conduct credit.
All further statutory references are to the Penal Code.
Defendant contends the sentence imposed constitutes cruel and unusual punishment because it is grossly disproportionate to the offenses and because it is grossly excessive and beyond his life expectancy. He asks this court to find the sentence imposed by the trial court unconstitutional as applied and to reduce the sentence to either a determinate sentence not to exceed 12 years or a concurrent 15-year-to-life sentence as to all three counts.
Both defendant and respondent agree the matter should be remanded for resentencing because the trial court did not believe it had discretion to sentence defendant concurrently as to count 2. Defendant and respondent also agree that defendant is entitled to an additional four days of actual presentence custody credit and an additional 50 days of conduct credit.
We remand the matter to the trial court for resentencing only and direct the court to exercise its discretion and determine whether the sentence imposed as to count 2 is consecutive or concurrent and to accord defendant an additional 54 days of presentence custody credit. In all other respects, the judgment is affirmed.
Since this appeal does not raise any issue regarding the facts of the underlying offense, we omit a statement of facts. (People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
At the sentencing hearing, the trial court concluded that a consecutive sentence for defendant’s conviction under count 2 was mandated by People v. Jimenez (2000) 80 Cal.App.4th 286 (Jimenez). The trial court stated: “[M]andatory consecutive sentencing in this matter has already been established by case law. The issue that the court had is count 1, 2 and 3 is whether or not count 2 and 3 merged in to one code of conduct. And the case... I read yesterday is People v. Jimenez cited officially at 80 Cal.App.4th 286. It just went, in comparison to the 269s, 288s and 667.6 whether or not consecutive sentencing is applicable, even though it’s absent from the statute and Court of Appeals by analogy said absolutely yes.”
The trial court then sentenced defendant to a 15-year-to-life term as to count 1, a consecutive 15-year-to-life term as to count 2, and a concurrent 15-year-to-life term as to count 3. This appeal followed.
DISCUSSION
I. Consecutive Sentencing
A. Applicable Law
Two statutes that are potentially applicable to the instant case mandate consecutive sentences for certain sexual offenses -- section 667.6 and section 269. Section 667.6, subdivision (d) requires the imposition of a separate, consecutive sentence for specified sexual offenses that involve either separate victims, or the same victim on separate occasions: “A full, separate, consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.” (§ 667.6, subd. (d).)
Subdivision (e) of section 667.6 specifies the offenses for which consecutive sentences must be imposed. It states in relevant part: “This section shall apply to he following offenses: [¶]... [¶] (4) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of Section 286. [¶] (5) Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶] (6) Continuous sexual abuse of a child, in violation of Section 288.5. [¶] (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k) of Section 288a. [¶] (8) Sexual penetration, in violation of subdivision (a) or (g) of Section 289.”
Section 269 provides that certain sexual offenses against children constitute a separate substantive offense punishable under that statute. Subdivision (a) of section 269 states in part: “Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶]... [¶] (3) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286. [¶] (4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a.”
Subdivision (c) of section 269 mandates the imposition of a consecutive sentence for each offense that results in a conviction under that statute if the crimes involve separate victims or the same victim on separate occasions: “The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.”
B. Consecutive Sentence Was Not Mandatory
Defendant was not convicted of any of the offenses specified in section 667.6, subdivision (e) or in section 269, subdivision (a). He was convicted of three counts of violating section 288.7, subdivision (b), a crime that is not listed under either of those statutes. Consecutive sentences were therefore not mandated under section 667.6 or section 269.
The statute under which defendant was convicted, section 288.7, subdivision (b), does not require consecutive sentences for multiple convictions. It provides as follows: “Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life.” Consecutive sentences were therefore not mandated by statute in this case.
A consecutive sentence was not mandated by Jimenez, which the trial court erroneously believed applied here. In Jimenez, the defendant was convicted of two counts of forcible sodomy with a person under the age of 14 and more than 10 years younger than the accused, in violation of former section 269. The version of that statute in effect at the time stated in relevant part: “(a) Any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child: [¶]... [¶] (3) Sodomy, in violation of Section 286, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” (Former § 269, subd. (a)(3), bolding added.)
Section 269 was amended in 2006. Among other changes, the 2006 amendment added subdivision (c), which imposes a consecutive sentence for each conviction under the statute that involves separate victims or the same victim on separate occasions. (Stats. 2006, ch. 337, § 6.)
The defendant in Jimenez was sentenced, pursuant to section former 667.6, subdivision (d), to two consecutive 15-year-to-life terms for the sodomy counts. (Jimenez, supra, 80 Cal.App.4that pp. 288, 290.) At the time, section 667.6, subdivision (d) stated in relevant part: “A full, separate, and consecutive term shall be served for each violation of... sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person if the crimes involve separate victims or involve the same victim on separate occasions.” (Former § 667.6, subd. (d), bolding added.)
On appeal, the defendant argued that section 667.6, subdivision (d) was inapplicable because he had been convicted under section 269, and a violation of section 269 was not one of the offenses listed in section 667.6, subdivision (d). He argued that the trial court therefore had discretion to sentence him to concurrent terms for the sodomy counts. (Jimenez, supra, 80 Cal.App.4th at p. 290.) The court in Jimenez rejected this argument, finding that the mandatory consecutive sentencing imposed by section 667.6, subdivision (d) applied to violations of section 269, subdivision (a)(3) because violation of section 286 and force or fear of injury were necessary elements of a violation of section 269, subdivision (a)(3). (Jimenez, at p. 290.) The court reasoned that the jury, in convicting the defendant of violating section 269, subdivision (a)(3), necessarily found that the defendant had also violated section 286 by force or fear, thus satisfying the factual predicate necessary to apply section 667.6, subdivision (d). (Jimenez, at p. 291.)
The Jimenez court’s reasoning does not apply here because the defendant in this case was not convicted of violating section 269. Instead, defendant was convicted for a violation of section 288.7, subdivision (b). Section 288.7, subdivision (b) is not a listed offense in section 667.6, subdivision (e), or in section 269, subdivision (a), nor is it a predicate offense of any of the crimes listed in those statutes. Defendant’s conviction under section 288.7 therefore did not result in a finding that he had violated section 667.6 or section 269. The trial court erred by concluding that consecutive sentences were mandated in this case.
Because defendant’s sentence is vacated and the matter remanded for resentencing, we need not address defendant’s constitutional challenge to the sentence imposed by the trial court as cruel and unusual punishment.
II. Custody Credit
The trial court awarded defendant 335 days of presentence custody credit, consisting solely of 335 days of actual custody. Defendant was accorded no conduct credit. Defendant and respondent agree that defendant should have been accorded an additional four days of actual presentence custody credit and 50 days of conduct credit.
Defendant was arrested on May 17, 2009, and sentenced on April 20, 2010. The record does not indicate that he was out of custody at any time during this period. He is therefore entitled to 339 days of actual custody credit.
Defendant’s conviction under section 288.7, for a felony punishable by imprisonment in the state prison for 15 years to life qualifies as a conviction for a “violent felony” as defined in section 667.5, subdivision (c). Under that statute, a “violent felony” includes “[a]ny felony punishable by death or imprisonment in the state prison for life.” (§ 667.5, subd. (c)(7).) A 15-year-to-life term is the equivalent of a life sentence for purposes of section 667.5, subdivision (c). (See People v. Thomas (1999) 21 Cal.4th 1122, 1127, 1130.)
A person convicted of a violent felony as defined in section 667.5 is entitled to conduct credit equal to 15 percent of the actual days of custody. (§ 2933.1.) Defendant is therefore entitled to 50 days of conduct credit. (§ 2933.1; People v. Ramos (1996) 50 Cal.App.4th 810, 815-816.)
DISPOSITION
The judgment is reversed only as it pertains to the sentence imposed on defendant as to count 2 and as to the presentence custody credit accorded to defendant. The sentence imposed is vacated. On remand, the trial court is directed to exercise its discretion and determine whether defendant’s sentence on count 2 is consecutive or concurrent. The trial court is further directed to correct defendant’s presentence custody credit to reflect 339 days of actual custody and 50 days of conduct credit. In all other respects, the judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.