Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF099277. Edward Webster, Judge.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Lilia E. Garcia, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, Acting P. J.
Defendant and appellant John Anthony Garcia appeals after he was convicted of multiple sex offenses. He contends that the admission of other crimes evidence under Evidence Code section 1108 violated his right to due process of law by lessening the prosecution’s burden of proving each element of the offense beyond a reasonable doubt. He further contends that the trial court erred in certain aspects of his sentence. We modify the sentence and otherwise affirm.
FACTS AND PROCEDURAL HISTORY
In May 2001, defendant lived with his mother in a mobilehome park. The victim, called John Doe at trial, was a 13-year-old boy who lived with his family in the trailer next door. Defendant, who was approximately 35 years old at the time of the incidents, befriended the victim and they would sometimes do things together.
On May 4, 2001, the victim and his two sisters were being cared for by defendant’s mother. The children stayed overnight in defendant’s mother’s trailer while their parents were away. During the evening, the victim was helping defendant clean up his bedroom and discovered some pornographic magazines. The victim started asking defendant about the sex acts depicted in the magazines. Ultimately, defendant and the victim engaged in several acts of sexual conduct. Acts of oral copulation and masturbation took place on the bed and in the bathroom (the basis of count 1). Two or three acts of sodomy took place (the basis of counts 2 and 3). The next day, defendant gave the victim a videotape depicting sexual acts (the basis of count 4). Defendant also gave the victim some methamphetamine (the basis of count 5).
A day or so later, the victim visited defendant again. They went into defendant’s bedroom where the victim orally copulated defendant (the basis of count 6). A few days after that, the victim was helping defendant retrieve a dead animal from under defendant’s mobilehome. While they were together in the crawl space, they masturbated one another (the basis of count 7).
Counts 8 and 9 concerned defendant’s failure to comply with sex offender registration laws.
The jury convicted defendant on all nine counts. The court dismissed the misdemeanor charge in count 4 (provision of pornography to a minor) for insufficiency of the evidence: The victim’s father had smashed the videotape with a hammer and it was not proven what the actual content of the damaged videotape was.
The information alleged that defendant had suffered a prior sex offense conviction for purposes of the one-strike law (Pen. Code, § 667.61, subd. (d)(1)), that defendant had suffered a prior serious felony conviction pursuant to Penal Code section 667, subdivision (a) (five-year enhancement), and eight prior serious felony convictions for purposes of the “Three Strikes” law (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)).
After the jury verdicts, the priors were to be tried to the court. Defendant ultimately admitted all the prior conviction allegations.
The court sentenced defendant as follows: On count 1 (lewd and lascivious act on a minor under age 14, in violation of Pen. Code, § 288, subd. (a)), the one-strike sentence of 25 years to life was trebled under the Three Strikes law, or 75 years to life, plus five years for the enhancement under Penal Code section 667, subdivision (a), for a total indeterminate term of 80 years to life. Count 1 was deemed the principal term.
On count 2 (sodomy with a child under age 14, in violation of Pen. Code, § 288, subd. (c)(1)), the court imposed a Three Strikes indeterminate sentence of 25 years to life, to run concurrently to count 1.
On count 3 (same offense as count 2), the court imposed a Three Strikes indeterminate sentence of 25 years to life, to run concurrently to count 1.
On count 5 (furnishing methamphetamine to a minor in violation of Health & Saf. Code, § 11353), the court imposed an indeterminate Three Strikes term of 25 years to life, concurrent to count 1.
On count 6 (violation of Pen. Code, § 288, subd. (a), on a different date), the court imposed a term of 80 years to life, consecutive to the sentence on count 1.
On count 7 (violation of Pen. Code, § 288, subd. (a), on a different date), the court imposed a term of 80 years to life, consecutive to count 6.
On count 8 (violation of annual birthdate registration requirement, Pen. Code, § 290, subd. (a)(1)(D)), the court imposed an indeterminate Three Strikes term of 25 years to life, consecutive to count 7.
On count 9 (violation of sex offender registration requirements, Pen. Code, § 290, subd. (a)(1)(A)), the court imposed an indeterminate Three Strikes term of 25 years to life, to be served consecutively to count 8. The court then imposed a five-year enhancement (Pen. Code, § 667, subd. (a)) to be served consecutively to count 9.
The court’s total aggregated indeterminate term was thus calculated at 295 years to life.
Defendant appeals.
ANALYSIS
I. Defendant’s Sentence Must Be Modified
Defendant contends that the trial court erroneously imposed the final five-year enhancement (Pen. Code, § 667, subd. (a)) without tying it to a specific new serious felony conviction.
Penal Code section 667, subdivision (a)(1), provides in relevant part that, “any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, 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. The terms of the present offense and each enhancement shall run consecutively.”
In People v. Williams (2004) 34 Cal.4th 397, the California Supreme Court held that the five-year enhancement under Penal Code section 667, subdivision (a), must be added to each new serious felony conviction. (Williams, at pp. 404-405.)
Here, the trial court properly imposed a five-year enhancement on each of the new serious felony convictions: counts 1, 6 and 7. The additional five-year enhancement, stated to run consecutively to count 9, was not tied to any particular offense.
The Attorney General argues that the additional five-year enhancement was proper, because there were two qualifying Penal Code section 667, subdivision (a), enhancements. The Attorney General is mistaken. There was only one qualifying five-year enhancement alleged. Defendant correctly asserts that the additional five-year enhancement must be stricken.
Defendant further asserts that his sentence was improperly rendered as a wholly indeterminate term of 290 years to life (295 less the five-year enhancement just stricken). The five-year enhancements, which were properly added to counts 1, 6 and 7, are in themselves determinate terms, not indeterminate sentences. (In re Cervera (2001) 24 Cal.4th 1073, 1081-1082 [“A ‘determinate’ term is of fixed duration”].)
The Attorney General argues that the five-year enhancements were properly aggregated as part of an overall indeterminate sentence: “There is nothing in Williams that suggests the five-year enhancement should have been imposed as a determinate term instead of being added to the indeterminate term.” Unfortunately for the Attorney General, footnote 3 of the Williams opinion suggests precisely that: “More precisely, the sentence consisted of a determinate term of 20 years [i.e., four five-year enhancements] to be followed by two consecutive indeterminate life sentences, each having a minimum term of 25 years. (See [Pen. Code,] § 669 [requiring that determinate terms under [Pen. Code,] § 667 be served before consecutively imposed life sentences].)” (People v. Williams, supra, 34 Cal.4th 397, 401, fn. 3.)
Defendant’s sentence should be modified to reflect that the five-year enhancements imposed under Penal Code section 667, subdivision (a), comprise a determinate term of 15 years, followed by a consecutive aggregate indeterminate term of 275 years to life.
II. The Prior Crimes Evidence Was Properly Admitted
Defendant next contends that the admission, pursuant to Evidence Code section 1108, of his record of eight prior convictions of molestation (violations of Pen. Code, § 288, subd. (a)) lessened the prosecution’s burden of proving the new offenses beyond a reasonable doubt.
The gist of defendant’s contention is that “[a]dmission of the prior offense evidence violates due process because its admission to prove his criminal disposition rendered [his] trial fundamentally unfair.”
As defendant recognizes, this issue has been determined by the California courts contrary to his position. (People v. Falsetta (1999) 21 Cal.4th 903, 917.) Falsetta is controlling; we reject defendant’s contention.
DISPOSITION
Defendant’s sentence must be modified to strike the five-year enhancement imposed consecutive to count 9. Defendant’s sentence consists of a 15-year determinate term, followed by a consecutive aggregate indeterminate term of 275 years to life. In all other respects, the judgment is affirmed.
We concur: RICHLI, J., GAUT, J.