Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 195480
Margulies, J.
Defendant Luther Peterson was convicted of sexual abuse of several young girls. He argues that the jury instructions were erroneous in several respects and that the trial court erred in enhancing his sentence on the basis of an alleged prior conviction because there was insufficient evidence that the conviction occurred before the criminal acts underlying his present convictions. While we find no error in the jury instructions, we agree there was insufficient evidence to support the sentence enhancement and remand for resentencing.
I. BACKGROUND
Defendant was charged in a second amended information, filed February 14, 2006, with four counts of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5) and four counts of aggravated sexual assault of a child through forcible oral copulation (§§ 269, 288a, subd. (c)(2)), involving four different victims. Defendant was also charged with three counts of oral copulation with a child under the age of 14 years, involving a fifth victim. (§ 288a, subd. (c)(1).) As sentence enhancements, the information alleged one prior strike conviction under sections 667, subdivisions (d) and (e) and 1170.12, subdivisions (b) and (c) and four prior convictions under section 667.5, subdivision (b). The prosecution ultimately dismissed counts 4 and 10, after the victim named in these counts failed to testify at trial.
All statutory references are to the Penal Code.
The four victims who testified were Shany., S.P., and A.P., defendant’s daughters, and L., the little sister of the mother of Shany. and S.P. Shany. and S.P. each testified that when she was between the ages of 6 and 10 years, defendant, on several different occasions, blindfolded her and, under the pretense of checking her teeth, inserted his penis in her mouth. L. testified that when she was between the ages of 9 and 11, defendant on several occasions entered her bedroom, placed his penis in her mouth, and moved it around until he ejaculated. A.P. testified that when she was in the fifth and sixth grades, defendant took her to a secluded place on several occasions, placed her hand around his penis, and moved it up and down.
The trial court gave CALCRIM No. 1123 on count 8, adapted to recite the elements of aggravated sexual assault of a child through forcible oral copulation under sections 269 and 288a, subdivision (c)(2). Consistent with the statutory language, the court instructed the jury, “To prove that a person is guilty of oral copulation by force, the People must prove, one, the defendant committed an act of oral copulation with someone else; two, the other person did not consent to the act; and three, the defendant accomplished the [act] by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone.” After retiring, the jury sent a note to the court asking for “a legal definition of: force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone.” The court concluded it had inadvertently omitted the explanatory jury instruction and, after consultation with counsel and without objection, gave the definitions from CALCRIM No. 1015, reading:
“An act is accomplished by force if a person uses enough physical force to overcome the [other] person’s will.
“Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and [the] relationship to the defendant.
“Retribution is a form of payback or revenge.
“Menace means a threat, statement, or act showing an intent to injure someone.
“An act is accomplished by fear if the other person is actually and reasonably afraid or is actually but unreasonably afraid and the defendant knows of the fear and takes advantage of it.”
Defendant was convicted of count 2, continuous sexual abuse of S.P., count 5, oral copulation of L., and count 8, aggravated sexual assault through forcible oral copulation of Shany. He was acquitted of the remaining counts.
Defendant waived his right to a jury trial of the prior convictions, and they were tried to the court. The court found that each of the alleged convictions occurred, but it made no findings about the relative timing of the prior convictions and the events on which defendant’s present convictions were based.
At sentencing, the trial court doubled defendant’s sentence terms on the basis of the prior strike conviction. (§§ 667, subds. (d), (e); 1170.12, subds. (b), (c).) Again, the court made no express factual finding regarding the relative timing of the strike conviction and defendant’s present criminal conduct. The doubling resulted in terms of 24 years on count 2, four years on count 5, and 30 years to life on count 8. The court ordered the two determinate terms to be served consecutively before commencement of the indeterminate term, resulting in a sentence of 58 years to life. The court stayed the four one-year prior conviction enhancements alleged under section 667.5, subdivision (b).
II. DISCUSSION
Defendant challenges several of the jury instructions and contends there was insufficient evidence that the prior strike conviction alleged as a sentence enhancement actually predated the acts of sexual misconduct for which he was convicted.
We note that defendant does not appear to have raised any of his instructional arguments in the trial court and may thereby have waived them. Because the Attorney General does not argue waiver, we do not address it further.
A. Definition of “Fear”
Defendant first contends that the trial court erred in defining “fear” for purposes of sections 269 and 288a in response to the jury’s note.
Section 288a, subdivision (c), which is incorporated in section 269, subdivision (a)(4), defines forcible oral copulation as oral copulation accomplished against the victim’s will “by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” As discussed above, when the jury requested a “legal definition” of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone,” the trial court read a portion of CALCRIM No. 1015, which contains definitions of the terms “accomplished by force,” “duress,” “retribution,” “menace,” and “accomplished by fear.” The definition of “accomplished by fear” reads, “[a]n act is accomplished by fear if the other person is actually and reasonably afraid or is actually but unreasonably afraid and the defendant knows of the fear and takes advantage of it.”
In defining the phrase “accomplished by fear,” CALCRIM No. 1015 does not repeat the statutory requirement that, under section 288a, the victim’s fear must be of “immediate and unlawful bodily injury on the victim or another person.” Defendant contends the supplemental instruction therefore permitted the jury to find defendant guilty if the oral copulation was accomplished by means of fear of something other than the bodily injury required by sections 269 and 288a.
Because the supplemental instruction was not a definition of the entire phrase “accomplished... by means of... fear of immediate and unlawful bodily injury on the victim or another person,” but only the first portion of that phrase, “accomplished by fear,” there was no error in its failure to mention bodily injury. The supplemental instruction, in stating that “[a]n act is accomplished by fear if the other person is actually and reasonably afraid or is actually but unreasonably afraid and the defendant knows of the fear and takes advantage of it,” did not purport to be a comprehensive statement of the elements of forcible oral copulation by fear. Rather, it purported to define only the first portion of the “fear” element: “accomplished... by... fear.” The supplemental instruction did not refer to, and was not required to refer to, bodily injury because the instruction did not purport to include that portion of the statutory element. Accordingly, the instruction did not incorrectly define the crime of forcible oral copulation. Further, there was no error in the court’s decision not to include a definition of “immediate and unlawful bodily injury on the victim or another person” because that phrase is not intended to be interpreted in a manner different from its commonly understood meaning. (See People v. Griffin (2004) 33 Cal.4th 1015, 1022–1023.)
Defendant must therefore contend that the jury would have concluded that the supplemental instruction was intended to delete the statutory requirement of fear of immediate bodily injury merely because the instruction did not mention it. There is no basis for such a conclusion. In defining only a portion of the statutory phrase, the court did not suggest that the remainder of the phrase was to be disregarded. Rather, the jury would have understood that the definition provided by the court referred only to the portion of the phrase actually defined, leaving the remainder of the phrase intact. There can be no doubt the jury was aware of the remainder of the phrase, since it included that portion in the note requesting further instructions. Taken as a whole, therefore, the instructions provided by the court properly informed the jury that it was required to find fear of immediate bodily injury.
B. Definition of “Force”
Defendant contends that the trial court erred in defining “force” for purposes of sections 269 and 288a.
Defendant’s argument is based on People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero), which addressed the definition of “force” as used in section 288. Subdivision (a) of section 288 prohibits “any lewd or lascivious act” upon a child under the age of 14. Subdivision (b) separately prohibits the commission of “an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” In Cicero, the court held that because the lewd act itself constitutes the “minimum proscribed conduct” under subdivision (a), the “force” required by subdivision (b) must be “substantially different from or substantially greater than that necessary to accomplish the lewd act itself” in order to distinguish the two crimes. (Cicero, at p. 474.) Defendant argues that the same definition of “force” should be applied to section 288a, subdivision (c), which defines “forcible oral copulation.”
Defendant also cites People v. Cochran (2002) 103 Cal.App.4th 8, which applied the Cicero standard in the context of section 269. Cochran is of limited precedential value, however, because it did not actually discuss the applicable standard for force but merely assumed that the Cicero standard applied. (Cochran, at p. 13.)
We agree with People v. Guido (2005) 125 Cal.App.4th 566, that the two statutes, sections 288 and 288a, are not parallel in this regard. As discussed in Guido, 125 Cal.App.4th at page 576, the gravamen of forcible oral copulation under section 288a, subdivision (c) is not the use of force but the violation of the victim’s will. The use of force is criminalized not as an end in itself, but as a means of overcoming the victim’s will. This is different from section 288, subdivisions (a) and (b), which separately prohibit lewd and lascivious conduct on a child and the same lewd and lascivious conduct involving force, without regard to the child’s will. As Guido reasoned, forcible oral copulation is therefore more analogous to rape, in which sexual penetration that would not be illegal if voluntarily permitted becomes so if accomplished against the victim’s will. (Id. at pp. 575–576.) In People v. Griffin, supra, 33 Cal.4th at pages 1022–1023, the Supreme Court held that the force necessary to accomplish rape need not be greater than the force necessary to accomplish the sexual act itself. Guido reasoned, and we agree, that the same rule should apply to forcible oral copulation, rather than the rule of Cicero. (Guido, at pp. 575–576.) Following Guido, the trial court committed no error in failing to instruct the jury that forcible oral copulation required force different from or greater than the force necessary for the act itself.
Section 288a, subdivision (c)(2) reads: “Any person who commits an act of oral copulation when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. ” (Italics added.)
Defendant also discusses the legislative history of section 269 at length. We have considered these materials and find them unpersuasive.
C. Lack of Unanimity Under Section 288.5
Section 288.5, subdivision (a), which defines the crime of “continuous sexual abuse of a child,” prohibits a person who has regular or recurring access to a child under 14 years from engaging in three or more acts of substantial sexual conduct with the child “over a period of time, not less than three months in duration.” Subdivision (b) of section 288.5 expressly provides that the jury need not agree on which three of the alleged sexual acts actually occurred: “To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred, not on which acts constitute the requisite number.” The trial court instructed the jurors consistently with the statute. Defendant contends the instruction violated his constitutional right to a finding of guilt beyond a reasonable doubt on each element of the crime.
The issue of the constitutionality of section 288.5 was addressed and settled in several decisions rendered 15 to 17 years ago, soon after section 288.5 was enacted. Because defendant’s argument largely plows the same ground, we discuss it only briefly.
Section 288.5 was enacted in response to a judicially created obstacle to the prosecution of resident child molesters. Due to the young age of the victims of such abuse and the repetitive nature of the abuse, the evidence of such molestation is frequently “generic”: victims can testify that the same general act of abuse occurred repeatedly, but they are unable to supply specifics about the time, place, or details of any particular event of molestation or to specify the exact number of incidents. (See People v. Jones (1990) 51 Cal.3d 294, 305 (Jones); People v. Higgins (1992) 9 Cal.App.4th 294, 299.) Prior to the enactment of section 288.5 in 1989, some California courts held that convicting a defendant of multiple counts of child molestation on the basis of such evidence conflicted with due process requirements of notice and jury unanimity. Section 288.5 was enacted to address these problems. (People v. Grant (1999) 20 Cal.4th 150, 155; Jones, at pp. 310–311.)
Once section 288.5 was enacted, several judicial decisions addressed the same issue of jury unanimity now raised by defendant. These cases found the statute constitutional on the basis of the “continuous course of conduct” exception to the requirement of jury unanimity, which holds that a jury need not agree on specific instances of criminal conduct to convict a defendant of a crime that is defined as a series of repeated instances of criminal conduct. The exception was well-established with respect to other crimes that featured a pattern of repeated, similar events, particularly child abuse. Extending it to the crime of resident child molestation presented no unique issues. (See People v. Whitham (1995) 38 Cal.App.4th 1282, 1296–1297; People v. Gear (1993) 19 Cal.App.4th 86, 92; People v. Avina (1993) 14 Cal.App.4th 1303, 1309–1311; People v. Higgins, supra, 9 Cal.App.4th at pp. 301–302.)
Defendant argues, in effect, that the continuous course of conduct exception is itself unconstitutional because the due process clause requires the jury to agree unanimously on every factual element of a crime. He relies primarily on three decisions, Apprendi v. New Jersey (2000) 530 U.S. 466, Richardson v. United States (1999) 526 U.S. 813 (Richardson), and Jones, supra, 51 Cal.3d 294. Jones, which held that a defendant’s conviction of multiple counts of child molestation on the basis of generic evidence is not unconstitutional (id. at pp. 320–321), had been decided by the time the decisions upholding section 288.5 were rendered. Most of these decisions discussed Jones, and they agreed that it did not require a finding that section 288.5 was unconstitutional. (E.g., People v. Gear, supra, 19 Cal.App.4th at pp. 93–94; People v. Higgins, supra, 9 Cal.App.4th at p. 301.) Indeed, Higgins concluded that Jones “is relevant, if not dispositive, to our analysis of the constitutionality of section 288.5. For if the Supreme Court is satisfied there is no constitutional infirmity to section 288 convictions predicated exclusively on generic testimony, then neither does the codification of generic proof in section 288.5 violate due process or the right to a unanimous verdict.” (Ibid.) We find nothing in defendant’s arguments that undermines this conclusion. Apprendi, which addresses the requirement that a jury find the facts on which a sentence enhancement is predicated, is irrelevant to this issue.
Defendant argues Jones affirmed the verdict only because the court gave a unanimity instruction and would not have permitted an instruction stating the jury was not required to agree on individual acts of abuse, as allowed by section 288.5. On the contrary, Jones affirmed the verdict because, given the generic nature of the victim’s testimony, the jury would not have been able to disagree about the commission of individual acts. (Jones, supra, 51 Cal.3d at p. 321.) As discussed in the text, the same type of testimony is typically present in section 288.5 cases and was present here.
That leaves Richardson, which post-dates the various decisions upholding section 288.5. Richardson considered the interpretation of a federal statute making it illegal to participate in a “ ‘continuing criminal enterprise.’ ” Somewhat parallel to section 288.5, the statute defined engaging in a continuing criminal enterprise to include (1) a violation of federal law, such as the anti-drug laws, (2) that was part of a continuing series of violations undertaken with other persons and producing substantial income. (Richardson, supra, 526 U.S. at pp. 815–816.) The issue before the Supreme Court was whether the statute required the jury to agree unanimously on the individual violations that constituted the continuing series. The court framed and decided the issue as one of statutory interpretation, rather than constitutional law. (Id. at p. 817.) According to the court, “The question before us arises because a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime.... [¶] In this case, we must decide whether the statute’s phrase ‘series of violations’ refers to one element, namely a ‘series,’ in respect to which the ‘violations’ constitute the underlying brute facts or means, or whether those words create several elements, namely the several ‘violations,’ in respect to each of which the jury must agree unanimously and separately.” (Id. at pp. 817–818.) The court ultimately concluded, as a matter of statutory interpretation, the jury was required to agree unanimously as to each violation. Contrary to defendant’s current claim, however, the court did not hold that this interpretation was required as a matter of constitutional law, nor did the court hold that all similar statutes must be interpreted in the same manner.
Richardson recognized the presence of a potential constitutional issue, noting, “this Court has indicated that the Constitution itself limits a State’s power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition.” (Richardson, supra, 526 U.S. at p. 820.) The court left unresolved, however, whether individual violations constituting a “continuing course of conduct” are an “element,” requiring unanimity, or “means,” which do not. Several decisions outside California have concluded that Richardson did not undermine the constitutionality of continuing course of conduct crimes that do not require jury unanimity for constituent violations. (See, e.g., Jefferson v. State (2006) 189 S.W.3d 305; State v. Ramsey (2005) 124 P.3d 756 [upholding a statute indistinguishable from section 288.5]; State v. Sleeper (2004) 846 A.2d 545; State v. Kelbel (2002) 648 N.W.2d 690; State v. Johnson (2001) 627 N.W.2d 455; Isabelle v. Mansfield (2008) 568 F.Supp.2d 85, 101.) Further, section 288.5 does not “risk[] serious unfairness [or] lack[] support in history or tradition.” (Richardson, at p. 820.) As discussed in the decisions upholding the statute, section 288.5 was enacted to balance the practical problems commonly associated with testimony in resident child molestation cases, the need to punish appropriately such conduct, and the defendant’s constitutional rights. The consensus is that the statute constitutes “a well designed accommodation of [those] competing interests” (People v. Higgins, supra, 9 Cal.App.4th at p. 304) and a “rational, fair reconciliation of these conflicting considerations.” (People v. Avina, supra, 14 Cal.App.4th at p. 1312.) Because the victim’s testimony necessarily will describe the pattern of molestation required by the statute, and because the jury is required to agree unanimously on the credibility of that testimony, there is little risk that a defendant will be convicted despite a lack of unanimity about particular incidents. In short, Richardson does not undermine the rationale of the various decisions that have upheld the constitutionality of section 288.5.
D. Instruction Regarding False Testimony
Defendant requested that the court give CALJIC No. 2.21.2, a traditional instruction informing the jury that it may disregard the entirety of the testimony of a witness if it concludes that a portion of the witness’s testimony was false. The court elected instead to give the parallel instruction from CALCRIM No. 226. Defendant contends that the choice of CALCRIM No. 226 was reversible error.
CALJIC No. 2.21.2 states, “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” The portion of CALCRIM No. 226 addressing this issue states, “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” Defendant contends he was prejudiced because the CALCRIM instruction does not contain the admonition that the witness’s testimony “is to be distrusted.”
Contrary to defendant’s claim, this is merely a matter of semantics. The CALJIC statement that a witness’s testimony is to be “distrusted” has a strongly pejorative tone; as defense counsel argued to the court, the CALJIC instruction “starts out with a very, very heavy punch.” Yet the phrase containing it, “is to be distrusted in others,” has exactly the same meaning as the parallel phrase in the CALCRIM instruction: “you should consider not believing anything that witness says.” To “distrust” means to view with suspicion; in other words, to “consider not believing.” The meaning of the two instructions is therefore the same. Assuming defendant had a right to an instruction on this general subject, he had no right to have that instruction delivered using any particular language. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1188.) In any event, because the CALCRIM instruction uses less emotionally weighted language, it is less likely to be misunderstood and is therefore a better statement of the concept.
Defendant believes the CALJIC instruction is more “potent.” Part of the potency of the CALJIC language is the ease with which the phrase “is to be distrusted” can be misunderstood as meaning “is to be disbelieved,” a stronger meaning that would improperly direct the jury to disregard the testimony of such a witness, rather than to view it with suspicion. Because of its plain, straightforward language, the CALCRIM instruction cannot be misunderstood in this manner.
Ironically, the court in People v. Warner (2008) 166 Cal.App.4th 653 was presented with a similar, but opposite, challenge to this portion CALCRIM No. 226. The defendant in Warner argued that the language of the CALCRIM instruction was inadequate because it was stronger, rather than weaker, than the parallel language of CALJIC 2.21.2. (Warner, at p. 658.) Warner’s conclusion was the same as ours: defendant “fails to persuade us that [the] semantic differences between CALCRIM No. 226 and CALJIC No. 2.21.2 are even material, let alone prejudicial.” (Id. at p. 659.)
E. Defendant’s Sentence Enhancement
The trial court doubled the sentence associated with each count on the basis of an alleged prior strike conviction. Defendant contends there was insufficient evidence to support the trial court’s implicit finding that this strike conviction was a “prior” strike—in other words, that it occurred before the events on which the present convictions are based. The Attorney General concedes this argument with respect to counts 5 and 8 and acknowledges that the sentences on those counts should not have been doubled. The Attorney General argues, however, that there was adequate evidence from which the trial court could have concluded that some of the conduct underlying count 2, which charged continuous sexual abuse of S.P. under section 288.5, occurred after the strike conviction.
Although no objection on this ground was made at trial, defendant’s present argument is that the trial court lacked discretion to impose the prior strike enhancement because there was insufficient evidence in the record to support imposition. Such a nondiscretionary defect creates an “unauthorized sentence,” which may be challenged for the first time on appeal. (E.g., People v. Mancebo (2002) 27 Cal.4th 735, 749-750, fn. 7; People v. Scott (1994) 9 Cal.4th 331, 354.) The Attorney General does not contend otherwise.
Each element of an alleged sentence enhancement must be proved beyond a reasonable doubt. (People v. Delgado (2008) 43 Cal.4th 1059, 1065.) A sentence enhancement based on a prior conviction can be imposed only if the prior conviction occurred before the commission of the charged offense. (People v. Rojas (1988) 206 Cal.App.3d 795, 802.) As a result, to impose a sentence enhancement on the basis of the prior strike conviction, the trial court was required to find beyond a reasonable doubt that at least some of the acts of sexual abuse of S.P. occurred after the date of the strike conviction.
Defendant and the Attorney General dispute whether all or just a portion of the acts constituting a continuous course of conduct must be committed after the prior strike conviction. Because we find insufficient evidence to support a finding that any of the acts of sexual abuse of S.P. occurred after the prior strike conviction, we need not resolve this issue. We assume for purposes of argument only that the Attorney General’s position is correct.
Defendant suffered the strike conviction on February 27, 2001. S.P. testified on direct examination that defendant’s sexual abuse began when she was “[a]bout six years old” and continued for “[a]bout two years,” which would have ended the abuse around her eighth birthday. S.P. was born in late August 1992. Accepting her testimony, the last act of abuse occurred around late August 2000, several months before the strike conviction. However, on cross-examination, in response to the question, “how old were you the last time that it happened,” S.P. said, “Around eight, going on nine.” The Attorney General argues that because S.P. did not turn nine until late August 2001, six months after the strike conviction, S.P.’s testimony on cross provides sufficient evidence to support the trial court’s finding.
To protect her privacy, we have not stated the exact date of S.P.’s birthday. Given the nature of these arguments, the exact date is not material.
S.P.’s testimony on cross cannot support a trial court finding beyond a reasonable doubt that the strike conviction occurred before the last act of sexual abuse. The trial court was required to find that the last act of abuse occurred during the final six months of S.P.’s eighth year, between late February and late August 2001. S.P.’s recollection on cross was that the abuse ended when she was “[a]round eight, going on nine.” While it is perhaps inadvisable to place too much weight on S.P.’s exact choice of words, her language does not suggest to us that, as the Attorney General argues, the last act of abuse was equally likely to have occurred at any point during her eighth year. Rather, S.P. said that the abuse stopped “around” her eighth birthday—in other words, during her eighth year, but closer to her eighth birthday than to her ninth birthday.
Yet even if we construe the statement as the Attorney General argues—that the abuse stopped at some unspecified time during S.P.’s eighth year—it would not permit the necessary finding beyond a reasonable doubt that the last act of abuse occurred in the final six months of that year. If the abuse stopped at some unknown time during S.P.’s eighth year, it was as equally likely to have stopped during the first six months of that year as during the last six months. Given that equal balance, the trial court could not even have concluded that the abuse was more likely than not to have occurred during the last six of those months. Necessarily, then, the evidence was insufficient to satisfy the more exacting beyond a reasonable doubt standard. As a result, it was error for the trial court to enhance the count 2 sentence on the basis of the “prior” strike conviction. Given the Attorney General’s concession with respect to the other two counts, none of the sentences should have been enhanced on the basis of the prior strike conviction.
Citing People v. Gutierrez (2001) 93 Cal.App.4th 15, 24, defendant contends that we are required to direct the trial court to enter an amended abstract of judgment correcting the sentencing errors, but otherwise to leave the sentence intact. The Attorney General requests that we remand for resentencing generally, permitting the trial court to reconsider other discretionary aspects of the sentencing. There is no hard-and-fast rule governing remand in these circumstances. Under section 1260, we have broad discretion in fashioning a remedy for error; as the statute states, we “may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.” As suggested in People v. Burns (1984) 158 Cal.App.3d 1178 (Burns), the appropriate remand depends on the nature of the sentencing error and its impact on the sentence. In Burns, the court remanded for resentencing in total because correcting the error would nearly halve the sentence, and the court was concerned that this change might affect the trial court’s judgment on other aspects of the sentence. (Id. at p. 1184.)
This situation resembles that in Burns. The trial court exercised its discretion to stay the one-year enhancements. While it did not explain its reasoning, it is likely that the court concluded defendant’s sentence, at 58 years to life, was already long enough. Because our decision requires the 58 years to be reduced by half, the trial court may take a different view of the proper disposition of the remaining sentence enhancements. It is a matter properly left to the discretion of the trial court, and we remand for the trial court to exercise that discretion.
III. DISPOSITION
Defendant’s sentence is reversed, and the matter is remanded for resentencing consistent with this decision. The judgment of the trial court is otherwise affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.