Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Los Angeles Superior Court No. LA045944, Kathryne A. Stoltz, Judge.
Joanna McKim, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Rama R. Maline, Deputy Attorneys General, for Respondent.
BIGELOW, J.
In the summer of 1996, Wade Morman sexually assaulted two women in separate attacks. In 2006, a jury found Morman guilty of six sex crimes arising from the attacks, and also found that Morman had a prior first degree burglary conviction. In 2007, the trial court sentenced Morman to state prison under a combination of the “One Strike” law (Pen. Code, § 667.61) and the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). The court sentenced Morman on one count involving one victim to an indeterminate term of 50 years to life, and sentenced Morman on one count involving the second victim to a consecutive indeterminate term of 50 years to life, for a total indeterminate term of 100 years to life. The trial court further sentenced Morman to a consecutive determinate term totaling 48 years on the four remaining counts. We affirm Morman’s convictions, modify his sentence, and remand the cause with directions to the trial court to prepare a corrected abstract of judgment.
All further section references are to the Penal Code.
FACTS
A. The Crimes
On July 24, 1996, Morman tackled Laura L. as she was entering her bedroom in her Van Nuys home. Morman forced Laura outside and into her car, drove Laura to an alley, and then dragged her out of the car and into a garage where he sexually assaulted her. Following the attack, Laura was transported to a local hospital where medical personnel collected vaginal swab samples for a rape kit.
On August 31, 1996, Morman grabbed Carolyn S. as she was entering her kitchen in her Van Nuys home. Morman dragged Carolyn into a bedroom where he sexually assaulted her. Following the attack, Carolyn was transported to a local hospital where medical personnel collected vaginal swab samples for a rape kit.
B. The Investigation
In July 2004, Los Angeles Police Department Detective Gregory Stone collected a saliva sample from Morman. Subsequent testing showed that DNA obtained from the saliva sample collected from Morman in 2004 matched DNA obtained from the vaginal swab samples collected in 1996 following the attacks on Laura and Carolyn.
In August 2004, Los Angeles Police Department Detective Deana Stark prepared a six-pack photograph line-up to show to Carolyn and Laura. Detective Stark placed Morman’s photograph in the number 5 position in the six-pack. Carolyn identified Morman’s photograph. Laura identified two photographs, indicating that the person in the photograph in the number 6 position was “possibly” her attacker, but that she was “leaning towards 5.”
C. Trial
In April 2006, the People filed a second amended information charging Morman with the following crimes: rape by force of Laura (count 2; Pen. Code, § 261, subd. (a)(2)); sodomy by force of Laura (count 3; § 286, subd. (c)); oral copulation by force of Laura (count 4; § 288a, subd. (c)); kidnapping to commit rape of Laura (count 5; § 208, subd. (d)); oral copulation by force of Carolyn (count 6; § 288a, subd. (c)); and rape by force of Carolyn (count 7; § 261, subd. (a)(2)).
All further references are to the Penal Code unless otherwise indicated.
The second amended information was corrected at the sentencing hearing to reflect this section, rather than section 209, subdivision (b)(1), which was originally alleged. The change was made to reflect the section applicable in 1996.
The information further alleged that the following one strike circumstances applied to counts 2, 3, and 4: that Morman committed those offenses during the course of a kidnapping within the meaning of section 667.61, subdivision (a) and (d). As to counts 2, 3, 4, 6 and 7: that Morman committed those offenses during the course of a burglary within the meaning of section 667.61, subdivision (a) and (d); and that there were multiple victims within the meaning of section 667.61, subdivisions (a), (b), and (e). The information alleged that Morman had a prior strike conviction for first degree burglary. (§ 1170.12, subds. (a) through (d) and § 667, subds. (b) through (i).) The information alleged that the burglary conviction also qualified as a prior serious conviction. (§ 667, subd. (a)(1).) Further, that he had suffered two prior convictions within the meaning of section 667.5, subdivision (b).
In May 2006, the charges against Morman were tried to a jury. The prosecution presented substantial evidence establishing the facts outlined above.
Morman testified in his own defense and generally denied that he had attacked either Laura or Carolyn. Morman specifically testified that, on August 31, 1996, the day that Carolyn had been attacked, he was at his home in Santa Monica. Morman did not specifically testify about July 24, 1996, the day that Laura had been attacked. On cross-examination, Morman testified that the “only way” his semen could have been found in Laura or Carolyn was if it had been “planted” there. Morman admitted that he had been convicted of rape, oral copulation, forcible anal and genital penetration, and assault with a firearm, which occurred in September 1996 against Amy B., but he denied that he actually committed those crimes, and again claimed that the DNA evidence in that case must also have been planted by the police. Morman admitted that he had pled guilty in 1992 to a residential burglary charge.
On May 17, 2006, at 2:15 p.m., the jury began its deliberations. At 4:10 p.m., the trial court admonished the jurors and sent them home. On May 18, 2006, at 9:13 a.m., the jury resumed its deliberations. At 9:16 a.m., the jury advised the bailiff that it had reached verdicts on all counts. Shortly thereafter, the jury returned the following verdicts:
1 Count 2: guilty of rape by force of Laura (§ 261, subd. (a)(2)); with one strike circumstance findings as follows: the crime was committed during a kidnapping with the intent to commit rape or forcible oral copulation (§ 667.61, subds. (a) & (d)): the crime was committed during a burglary with the intent to commit rape or forcible oral copulation (§ 667.61, subds. (a) & (d)); Morman committed crimes against more than one victim (§ 667.61, subds. (a), (b) & (e)). The jury found not true the one strike circumstance that the crime was committed during a burglary (§ 667.61, subds. (a), (b) & (e));
2 Count 3: guilty of sodomy by use of force of Laura (§ 286, subd. (c)); with one strike circumstance findings as follows: the crime was committed during a kidnapping with the intent to commit rape or forcible oral copulation (§ 667.61, subds. (a) & (d)); the crime was committed during a burglary with the intent to commit rape or forcible oral copulation (§ 667.61, subds. (a) & (d)); and Morman committed crimes against more than one victim (§ 667.61, subds. (a), (b) & (e)). The jury found not true the one strike circumstance that the crime was committed during a burglary (§ 667.61, subds. (a), (b) & (e));
3 Count 4: guilty of forcible oral copulation of Laura (§ 288a, subd. (c)); with one strike circumstance findings as follows: the rape was committed during a kidnapping with the intent to commit rape or forcible oral copulation (§ 667.61, subds. (a) & (d)); the crime was committed during a burglary with the intent to commit rape or forcible oral copulation (§ 667.61, subds. (a) & (d)); and Morman committed crimes against more than one victim (§ 667.61, subds. (a), (b) & (e)). The one strike circumstance that the crime committed during a burglary was found not true (§ 667.61, subds. (a), (b) & (e));
4 Count 5: guilty of kidnapping to commit another crime of Laura (§ 208, subd. (d));
5 Count 6: guilty of forcible oral copulation of Carolyn (§ 288a, subd. (c)); with one strike circumstance findings as follows: the crime was committed during a burglary with the intent to commit rape or forcible oral copulation (§ 667.61, subds. (a) & (d)); and Morman committed crimes against more than one victim (§ 667.61, subds. (a), (b) & (e)). The one strike circumstance that the crime committed during a burglary was found not true (§ 667.61, subds. (a), (b) & (e)); and
6 Count 7: guilty of forcible rape of Carolyn (§ 261, subd. (a)(2)), with one strike circumstance findings: the crime was committed during a burglary with the intent to commit rape or forcible oral copulation (§ 667.61, subds. (a) & (d)); and Morman committed crimes against more than one victim (§ 667.61, subds. (a), (b) & (e)). The one strike circumstance that the crime committed during a burglary was found not true (§ 667.61 subds. (a), (b) & (e)).
The prior strike conviction was also found true.
D. Sentencing
On May 14, 2007, the trial court sentenced Morman on the counts involving victim Laura L. as follows: on count 2, an indeterminate term of 50 years to life, consisting of 25 years to life pursuant to the special one strike circumstance in section 667.61 subdivisions (a) and (d)), and doubled pursuant to the Three Strikes law, plus five years for the section 667, subdivision (a)(1) allegation. Sentence on the other one strike circumstance allegations was imposed, doubled and stayed. On count 3, an aggregate term of 16 years, comprised of the upper term of eight years, which was doubled pursuant to the Three Strikes law. The trial court ordered the sentence to run fully consecutive. Sentence on the remaining one strike circumstance allegations was likewise doubled, imposed and stayed. On count 4, the court imposed an aggregate term of 16 years, also comprised of the upper term of eight years doubled. Again, the court ordered the sentence to run fully consecutive. It then imposed, doubled and stayed the sentence on the one strike circumstance allegations. On count 5, the court imposed an aggregate term of 22 years, comprised of the 11-year high term, doubled. The court stayed imposition of sentence pursuant to section 654. On count 6, an indeterminate term of 50 years to life, consisting of 25 years to life pursuant to the special one strike circumstance in section 667.61 subdivisions (a) and (d), and doubled because of the Three Strikes law. Sentence on the other one strike circumstance allegations was imposed, doubled and stayed. On count 7, an aggregate term of 16 years, comprised of the upper term of eight years, which was doubled pursuant to the Three Strikes law. The trial court ordered the sentence to run fully consecutive. Sentence on the other one strike circumstance allegations was imposed, doubled and stayed.
The trial court described count 3 as a crime on the “same occasion and same place.”
The trial court described count 4 as a “separate offense involving the same victim.”
The trial court described count 7 as a “separate offense on the same occasion.”
Morman filed a timely notice of appeal.
DISCUSSION
I. Morman’s Pro Per Status
Morman represented himself during pretrial proceedings, and at trial. (See Faretta v. California (1975) 422 U.S. 806, 833-834 (Faretta).) Paul Cohen acted as Morman’s standby counsel. In May 2006, the jury returned its verdicts finding Morman guilty of all counts. Morman thereafter filed several motions, including a motion for new trial. At a hearing on Morman’s motions on January 2, 2007, the trial court revoked Morman’s pro per status based on the ground of misconduct, and Mr. Cohen thereafter represented Morman for the remainder of the case. On appeal, Morman contends his convictions must be reversed because the trial court committed reversible error by revoking his pro per status. We disagree.
A. Applicable Law
Although a criminal defendant has the right to represent himself under the Sixth Amendment, this right is not absolute, and a trial court “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct” or who “abuse[s] the dignity of the courtroom” or who does “not to comply with relevant rules of procedural and substantive law.” (Faretta, supra, 422 U.S. at pp. 834-835, fn. 46.) In short, a trial court retains discretion to determine when a defendant has become so disruptive, obstreperous, disrespectful or obstructionist in his actions or words so as to preclude the exercise of his right to self-representation. (People v. Welch (1999) 20 Cal.4th 701, 735.) The trial court’s decision to terminate a defendant’s pro per status will not be disturbed on appeal in the absence of a strong showing of a clear abuse of discretion. (Ibid.; see also People v. Carson (2005) 35 Cal.4th 1, 8-12.)
“When determining whether termination [of a defendant’s pro per status] is necessary and appropriate, the trial court should consider several factors in addition to the nature of the misconduct and its impact on the trial proceedings. One consideration is the availability and suitability of alternative sanctions. [Citation.] Misconduct that is more removed from the trial proceedings, more subject to rectification or correction, or otherwise less likely to affect the fairness of the trial may not justify complete withdrawal of the defendant’s right of self-representation. The court should also consider whether the defendant has been warned that particular misconduct will result in termination of in propria persona status . . . . [¶] Additionally, the trial court may assess whether the defendant has ‘intentionally sought to disrupt and delay his trial.’ [Citations.] In many instances, such a purpose will suffice to order termination; but we do not hold that an intent to disrupt is a necessary condition. . . . Ultimately, the relevance inheres in the effect of the misconduct on the trial proceedings, not the defendant’s purpose.” (People v. Carson, surpa, 35 Cal.4th at pp. 10-11.)
B. Analysis
The record shows that Morman disrupted the proceedings by speaking out of turn, yelling, making argument during his testimony, cursing at the prosecutor and the trial court, and calling the prosecutor and the court inappropriate names. The record further shows that the court warned Morman that his behavior was improper, that Morman did not heed the court’s warnings, and that, instead, Morman continued to act in a way which was both offensive to the court and disruptive to the proceedings. For example, in response to one of the court’s warnings, Morman responded, “You people are full of shit. Fucking liars. Liars.” Morman’s outburst prompted the trial court to give this warning: “You need to stop interrupting me. You cannot swear here in court. You cannot yell at people here. That is not appropriate conduct.” Morman continued to shout and antagonize the court by calling the prosecutor and the court liars. A moment later, when the court rejected Morman’s attempt to present evidence that did not pertain to the case at hand, he again became upset and accused the trial court of holding an unfair trial. The court again instructed Morman that his conduct was not appropriate, and that he was only to testify about the facts. Beyond these types of outbursts, the record also shows that Morman was confused about procedures, and asked the trial court for advice or help several times. He tried to present evidence which was not related to his current case, and became angered when the court refused to hear testimony about unrelated matters.
Given the nature of the record, there was no abuse of discretion in the trial court’s determination that Morman was unable to follow the rules of procedural and substantive law, and that he would remain disruptive, obstreperous, disobedient, and disrespectful during the remainder of the proceedings. (People v. Welch, supra, 20 Cal.4th at p. 735.)
Citing In re Little (1972) 404 U.S. 553, Morman contends that his pro per status should not have been revoked because his conduct did not rise to a level that impeded the “orderly administration of justice.” Not only does the record belie this contention, but Morman’s reliance on Little is also misplaced. In Little, the Supreme Court found that a pro se defendant’s statements during summation did not constitute a criminal contempt. Little has little to do with the question of when a court may terminate a defendant’s pro per status.
In Morman’s current case, his misbehavior continued despite several warnings, he refused to answer questions posed to him, and he made accusations instead of presenting cogent testimony. In short, the record supports the trial court’s conclusion that Morman was unable to follow the rules of procedural and substantive law, and that he would remain so disruptive, obstreperous, disobedient, and disrespectful during the proceedings that he had relinquished his right to represent himself. (People v. Welch, supra, 20 Cal.4th at p. 735.) We see no abuse of discretion.
II. The One Strike Circumstance Allegations
Morman acknowledges that the trial court properly imposed an indeterminate life sentence under the One Strike law on his conviction for the rape of Laura L. (count 2), and on his conviction for the forcible oral copulation of Carolyn S. (count 6). Beyond this, Morman contends the trial court erred by imposing and staying additional indeterminate life sentences under the One Strike Law on those counts and on counts 3, 4, and 7. In Morman’s words, he “should have been sentenced to only one indeterminate [life] term per victim under . . . section 667.61 . . .,” and the “rest of the indeterminate [life terms which were imposed and stayed] under . . . section 667.61 . . . should be stricken.” We disagree.
In 1996, when Morman committed his crimes against Laura L. and Carolyn S., former section 667.61, subdivision (a), provided: “A person who is convicted of [specified sex crimes under specified circumstances] . . . shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years . . . .” (Stats. 1994, ch. 447, § 1; Stats. 1993-1994, 1st Ex. Sess, ch. 14, § 1.) At the same time, former section 667.61, subdivision (g), provided: “The term specified in subdivision (a) . . . shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. . . . Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.” Combined, former section 667.61, subdivisions (a) and (g), provided that a defendant convicted of specified sex crimes under specified circumstances could be sentenced to “one life term per victim per occasion no matter how many offenses the defendant committed against a particular victim on a particular occasion.” (People v. Murphy (1998) 65 Cal.App.4th 35, 40.)
The Attorney General contends the trial court properly imposed and stayed the remaining special one strike findings because a 2006 amendment to section 667.61, subdivision (g), applies to this case and prohibits the court from striking the remaining one strike circumstance findings. That new section states: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegations, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section.” (§ 667.61, subd. (g).) The Attorney General claims this amendment should apply to Morman’s sentence even though his crimes occurred in 1996 because, contrary to Morman’s claim, its application does not amount to an ex post facto violation.
The issue of whether the 2006 amendment is an ex post facto application need not be resolved here. We find the parties’ arguments for striking or staying the “left over” one strike circumstances to miss the mark. We believe this issue should be resolved a bit differently. The one strike circumstances make a defendant eligible for one life sentence per victim per occasion. One can be eligible for that sentence based on true findings under more than one circumstance listing in subdivision (a). Those findings are not redundant or meaningless, and should not be stricken, because: (1) any or all of them make the defendant eligible for a single life sentence for the crimes committed against that victim on that occasion, and (2) should a reversal occur on one circumstance, the defendant would be eligible for a life term under the others.
On the other hand, it is not appropriate to impose and stay sentence on the one strike circumstances either. In People v. Gonzalez (2008) 43 Cal.4th 1118, the court resolved a conflict as to whether, after a trial court imposes punishment for a firearm enhancement for the longest term of imprisonment under section 12022.53, the remaining section 12022.53 firearm enhancements found true should be stayed or stricken. The court found that the remaining enhancements should be imposed and stayed. (Id. at p. 1123.) The court noted that section 12022.53, subdivision (f), expressly states that only the greatest enhancement may be imposed. The court found those words did not amount to a prohibition against imposing and staying, only against imposing and executing the sentence for multiple enhancements. (Id. at pp. 1126-1127.) The court went on to find that its interpretation of the statute “harmonizes” with section 654, which preserves “ ‘the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence.’ ” (Id. at p. 1128.)
The one-strike circumstances are not, as in Gonzalez, separate sentencing enhancements carrying separate sentences. Further, multiple one strike circumstance findings are not subject to being imposed and stayed, because there is only one life term for any or all of them. Thus, it appears the correct and practical approach is to have them remain on the judgment as findings supporting one life term per victim on the particular occasion. Accordingly, we believe the remaining one strike circumstances should neither be stricken or stayed, but instead remain unimposed special allegations found true by the jury.
III. Consecutive Sentences on Counts 2, 3, 4, 6, and 7
Morman next contends the trial court improperly ordered his sentences on count 2, 3, 4, 6, and 7 to run fully consecutive. Morman concedes that imposing consecutive life sentences on the counts 2 and 6, involving separate victims, was appropriate. On the counts involving the same victims, however, he contends that consecutive sentences were not mandatory. Further, though he acknowledges that the trial court had discretion to impose full consecutive terms pursuant to section 667.6 subdivision (c), he contends the trial court did not appropriately state reasons for doing so. We find the trial court properly acknowledged that imposing full consecutive sentences was an optional sentencing choice, and also gave reasons for imposing consecutive sentences as to each count. We do not believe the trial court erred, but even assuming it did, we find any error in failing to state further reasons was waived by failure to object and also harmless.
There is no dispute that the sex crimes committed by Morman fall within the purview of one strike sentencing.
As to sentencing on the multiple sex offenses Morman committed against the same victims, he contends full term consecutive sentences were not mandatory. On the other hand, the Attorney General contends section 667.6 subdivision (d), required full term mandatory consecutive sentencing even though they involved the same victim because they involved separate occasions. Statements by the trial court indicate it did not find the crimes were committed on separate occasions, and, though there may be an argument that they were, we do not find it persuasive here.
However, we still find the full consecutive sentences imposed were appropriate. Even Morman admits the court had discretion to impose a full, separate and consecutive sentences for the remaining multiple violent sex offenses pursuant to section 667.6, subdivision (c). Contrary to Morman’s claim, the record reflects that the trial court indicated it was choosing to impose sentence under this section and appropriately stated its sentencing reasons.
The decision to impose full term consecutive sentences is a sentencing choice that requires a statement of reasons. And although a separate statement is required from that which is used for the imposition of consecutive sentencing, the reasons for that sentencing choice may be the same. (People v. Belmontes (1983) 34 Cal.3d 335, 347-348.) “What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c). The crucial factor, in our view, is that the record reflects recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c).” (Id. at p. 348, fn. omitted.)
At the sentencing hearing, the trial court said it knew that full consecutive terms were optional, and that it was choosing to impose them. When it imposed consecutive sentencing on each count, the trial court stated why it was doing so. When sentencing on count 3, the trial court stated, “. . . that involves the same victim as count 2, and I believe it’s also, as I recall, the same occasion and same place. [¶] The court believes that full consecutive terms are optional, and the court believes that the full consecutive term is appropriate in this case. And the court is going to [sic] balancing the factors in aggravation and the factors in mitigation, because of the defendant’s prior criminal record, other than his prior strikes, the court finds that the factors in aggravation outweigh the factors in mitigation and will impose the high term in state prison.” With reference to count 4, she stated, “that is a separate offense involving the same victim as count 2, on the same occasion. It is optional to impose the full consecutive sentences. The court feels it’s appropriate in this case.” And, “[a]s to count 7, that is the same victim as count 6 but a separate offense on the same occasion. The court finds it’s appropriate to impose full consecutive sentences and imposes the high term because of the prior convictions other than the prior strike. . . .”
Accordingly, the trial court understood it was making a separate sentencing choice to impose full term consecutive sentences on each count, and so stated. The court made individual determinations as to each sex offense that such sentencing was appropriate under the facts of this case. Thus, the trial court recognized its choice and fulfilled what the California Supreme Court termed the “crucial factor” in imposing the sentences.
To the extent any further statement of reasons was required, it has been waived. It is now clear that a defendant who fails to object in the trial court cannot later claim the trial court erred in failing to state reasons for a sentencing choice. (People v. Scott (1994) 9 Cal.4th 331, 352-353.) As Morman’s counsel did not voice an objection before the trial court for failing to give any further statement of reasons for its sentencing choices, his argument is waived on appeal. (Ibid.) Contrary to Morman’s assertions, the waiver rule is applicable here. As in Scott, Morman had the benefit of the court’s announcing that it read the probation report and the parties’ sentencing memorandum. (Id. at p. 339.) Further, Morman knew before sentence was imposed that the prosecutor was requesting high term sentences wherever such a choice could be made. Morman had a meaningful opportunity to object but did not.
We note that even if the error were not waived, remand for a further statement of reasons is not required because it would be nothing more than an idle act. (People v. Williams (1996) 46 Cal.App.4th 1767, 1783; People v. Blessing (1979) 94 Cal.App.3d 835, 838-839.) Here, the record reflects the trial court felt it was appropriate to impose the maximum sentence for the crimes Morman committed. It noted Morman’s prior criminal record, which was lengthy. Indeed, Morman was convicted of receiving stolen property (§ 496) and first degree burglary in 1989 (§ 459); burglary in 1992 (§ 459); and felon or addict in possession of a firearm in 1993 (§ 12021(a)). During that time period, he violated both his probation and parole and was also found guilty of rape, oral copulation, forcible anal and genital penetration, and assault with a firearm.
The crimes Morman committed in this case were of the worse sort. Morman grabbed Laura’s jaw and hair and placed his penis inside her mouth, saying, “suck my dick harder.” When Laura tried to pull away and bit his penis, he told her if she wanted it rough he could make it real rough and punch her teeth in. When Morman sodomized Laura and she made noises from the pain, he vaginally raped her. When he assaulted Carolyn, he threatened to kill her and placed a blanket over her such that she could not breathe. When she was uncooperative in orally copulating him, he raped her then beat her on her jaw, face, chest and arms, and kept telling her he was going to kill her.
There can be no serious doubt that remand for a further statement of reasons would not change the result given the facts and circumstances here. It is simply unnecessary.
IV. Other Sentencing Corrections
Our independent review of the record reveals the sentence does require correction in other respects. The abstract of judgment needs to be corrected because it does not comport with the trial court’s pronounced sentence, or the trial court’s sentencing minute order, in several respects. First, the trial court sentenced Morman on his conviction for kidnapping (count 5) to a high term of 11 years under former section 208, subdivision (d), which was in effect at the time he committed his crimes in 1996, doubled to 22 years under the Three Strikes law, and then stayed. The abstract of judgment, however, shows Morman was convicted under section 209, subdivision (b)(1), the statute in effect in 2007, and shows an 11 year term which was stayed. Second, the abstract shows the five year sentence enhancement under section 667.6, subdivision (a)(1), which should be section 667, subdivision (a)(1).
Furthermore, the sentence is unauthorized in that it fails to include two additional five year terms for the prior conviction within the meaning of section 667, subdivision (a)(1). An unauthorized sentence can be raised for the first time on appeal. (People v. Scott, supra, 9 Cal.4th at p. 353.) In addition, when a defendant appeals, he subjects himself to a review of the proceedings below. When the court makes such a review and finds an unauthorized sentence, it must be vacated and a proper sentence imposed. (People v. Hickey (1980) 109 Cal.App.3d 426, 435.)
Imposition of a five-year enhancement is required where a person has been convicted of a serious felony in the current case, and it has been alleged and proved that the person also suffered a prior serious felony within the meaning of section 667, subdivision (a)(1). The trial court is without discretion in the matter as imposition of such term is mandatory. (People v. Valencia (1989) 207 Cal.App.3d 1042, 1045.) The five-year term under 667, subdivision (a)(1) is to be imposed once as to the determinate sentence and once as to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397, 401-405.) Here, Morman was sentenced to a determinate term and two indeterminate terms. The trial court imposed the five year prior only once, to one indeterminate term on count 2. The five-year enhancement must also be imposed on the indeterminate term in count 6 and again on the aggregate determinate term. (Ibid.) The matter is remanded to the trial court to modify Morman’s sentence in accordance with the aforementioned principles.
DISPOSITION
Morman’s convictions on counts 2, 3, 4, 5, 6 and 7 are affirmed. The trial court’s order revoking Morman’s pro per status is affirmed. The cause is remanded to the trial court to modify Morman’s sentence in accord with this opinion, and to prepare a corrected abstract of judgment.
We concur: COOPER, P. J. RUBIN, J.