Opinion
E066082
06-07-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN JOSEPH SIXTA, Defendant and Appellant.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, Teresa Torreblanca, and Kathryn A. Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1400873) OPINION APPEAL from the Superior Court of Riverside County. Donal B. Donnelly, Judge. Affirmed in part as modified; reversed in part. Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, Teresa Torreblanca, and Kathryn A. Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted John Joseph Sixta on three counts of molestation of his two stepdaughters. (Pen. Code, § 288, counts 2, 5, 8; unlabeled statutory citations refer to this code.) For each offense, Sixta received a sentence of 15 years to life under section 667.61, commonly called the "One Strike" law, which provides a more severe penalty for lewd acts when the offender abuses multiple victims. (§ 667.61, subds. (b), (e).) Sixta argues and the People concede California lacked territorial jurisdiction to convict him on one of the counts because it occurred on the United States Marine Corps Base at Camp Pendleton, which is a federal enclave over which the federal government exercises exclusive jurisdiction. (People v. Renteria (2008) 165 Cal.App.4th 1108, 1115 (Renteria).)
Sixta also argues count 8 was time-barred by about two months because the People failed to charge him within a special limitations period for violations of section 288 in section 801.1. Following the holding in People v. Perez (2010) 182 Cal.App.4th 231 (Perez), we conclude One Strike offenses such as the one charged in count 8 are subject to the open-ended limitations period in section 799, which is applicable to offenses "punishable by . . . imprisonment in the state prison for life." (§ 799, subd. (a).) We will therefore reverse Sixta's conviction for the one count of molestation over which we lack territorial jurisdiction, and otherwise affirm the judgment.
I
FACTUAL BACKGROUND
Sixta served as a Marine for 21 years and was stationed in Fort Bragg, North Carolina and Camp Pendleton, California. His two stepdaughters, S (born in 1986) and her younger sister R (born in 1990), were adult women in their 20's when they testified at trial that he molested them throughout their childhood, in North Carolina and in California. The People charged Sixta with nine counts of committing a lewd act upon a child under 14 years of age and alleged the One Strike law's more severe penalty of 15 years to life applied to each offense because he committed the abuse against more than one victim. The jury convicted him of counts 2, 5, and 8 and found true the accompanying One Strike allegations, and hung on the remaining counts. The trial court sentenced him to indeterminate 15-year sentences for each count, for a total of 45 years to life in state prison.
A. Prosecution's Evidence
1. Molestation of S (count 8)
The victims' mother married Sixta, an active Marine, in North Carolina when her two daughters were young girls. When S was seven or eight years old, she would accompany Sixta when he went to work as a skydiving instructor in that state. At night, they would sleep in a tent in the field where the lessons took place. S recalled that, on more than one occasion, Sixta gave her cold medicine so she would fall asleep, then he rubbed her genitals under her clothing.
When S was about nine years old, the family moved to Temecula, California. Sixta began molesting S on a regular basis in the Temecula home when she was about 10 years old. Every other night or so, she would wake up early in the morning to Sixta kneeling by her bedside, touching her underneath her underwear very close to her vagina. She was scared and uncomfortable and would pretend to be asleep. On one occasion, Sixta made S watch pornography with him in his bedroom in the Temecula home. He touched the skin above her vagina and moved his hand in a circular motion, telling her that was what her mother liked. When S was 11 years old, Sixta made her take a bubble bath with him and touch his penis.
When S was in the fifth grade she learned during sex education it was inappropriate for anyone to touch her private areas. She reported Sixta's molestation to her mother, who responded by crying and telling her to lock her door when she went to bed at night. S recalls the abuse stopped at that point. Not long after, S moved to Georgia to live with her biological father.
The prosecution charged Sixta with three counts of molesting S (counts 7, 8, 9) and the jury convicted him of count 8.
2. Molestation of R (counts 2, 5)
R is four years younger than S. At trial, she recounted incidents of molestation that occurred when she was between about 8 and 10 years old. By then, the family had moved from Temecula to a home on the Camp Pendleton base. During that time, Sixta worked as a skydiving instructor in Lake Elsinore, and sometimes R would accompany him to work. R said Sixta molested her on multiple occasions during those car rides to and from Lake Elsinore, by touching her breasts and her vagina. She recalled one incident in particular when he pulled over to the side of the road during the drive home and masturbated himself and rubbed R's genitals underneath her clothes. He also had R touch his penis. Sixta ejaculated and R remembers having to get a rag from the back seat of his truck and clean it up. She was eight or nine years old at the time.
R also recalled an instance of molestation that occurred in their family home on Camp Pendleton when she was 10 years old. She and Sixta were alone in his bedroom and he played a pornographic video for her. He then had her masturbate him, showing her how to rub her hand up and down his penis. R recalls Sixta also licked her vagina on that occasion. R testified about multiple other occasions when Sixta molested her in Camp Pendleton. Most times it would happen when she was taking a nap on the couch in his office on the base. He would shut the office door and begin touching and licking her vagina. She recalled a time when one of Sixta's friends dropped by and Sixta quickly stopped and opened the door. R said she had always hoped that someone would discover the abuse so she didn't have to be the one to report it and "feel the guilt of ruining my family."
It was S who first reported Sixta's molestation of R. She told their mother when the three of them were sitting in the living room together. Their mother cried but did nothing to protect R, which made R "really start[] feeling alone and resentful." R brought up the abuse again with her mother a few years later, when she was about 12 or 13, and it started an argument. Their mother insisted R was lying and that S had "brainwashed" her into falsely accusing Sixta of molestation.
In 2006, when R was 16 years old, she told Sixta during an argument she was angry with him for "everything he's ever done with me or to me," and Sixta replied that she had asked for it. Around that time, R and S's mother moved to Yuma, Arizona with Sixta and let R live in their California home by herself. Years later, when R was 19 or 20, her mother called her and said Sixta wanted to apologize. Sixta told R he was "sorry for anything I've ever done to you" and he agreed when R told him he needed help.
The jury found Sixta guilty of two counts of molesting R—count 2, which the prosecution designated the pornographic video incident and count 5, designated the second California highway incident.
3. Molestation of M in Arizona
To demonstrate absence of mistake and Sixta's propensity to molest children, the prosecution presented evidence he had recently molested a friend's young daughter. (Evid. Code, § 1108.) The parties stipulated that two years earlier Sixta had pled guilty in Arizona to one count of sexual abuse of a minor. The victim in that case, M, testified at trial about the sexual abuse. M said her mother was friends with Sixta's wife—S and R's mother—and they would often spend time at the Sixtas' home in Yuma. She said when she was 11 or 12 years old and in the sixth grade, Sixta molested her on an evening when he was supposed to be babysitting her and her brother.
M recalled watching a movie with Sixta then falling asleep after drinking some hot chocolate he had given her. She woke up as he was carrying her into a bedroom. He took off her pajama bottoms, shirt, and bra, and began touching her breasts and vagina with his hands and his mouth. When he was done groping and kissing her he put her clothes back on and left the room. M pretended to be asleep the entire time because she feared Sixta would kill her if she said anything. The following morning M told her mother what had happened and her mother immediately picked her up from the Sixta's home and took her to a clinic for testing. Sixta's DNA was found on M's breast.
B. Defense Evidence
Sixta testified in his own defense and denied ever molesting his stepdaughters. He also denied molesting M. He claimed he pled guilty in Arizona only because he was afraid he would go to prison for a long time if he didn't, particularly in light of the charges in this case. He acknowledged his DNA had been found on M's breast and could not explain how it had gotten there.
II
DISCUSSION
A. California Lacks Territorial Jurisdiction Over Count 2
The prosecution charged Sixta with three counts of molestation occurring on the Camp Pendleton base—the pornographic video incident (count 2), plus an incident on R's bunk bed and another in Sixta's office. At the close of evidence, Sixta moved to dismiss all three counts, arguing Camp Pendleton is a federal enclave of California over which the federal government maintains exclusive criminal jurisdiction. The prosecutor argued California had territorial jurisdiction because child molestation is a violation of a state crime and because the Marine Corps had consented to the prosecution and had sent a representative to the courtroom to show they were "fully supportive of it." Later, the prosecution presented the court with a letter from a major in the Marine Corps Regional Trial Counsel Office stating he did not object to California's prosecution of Sixta. The court denied Sixta's motion on the ground there was no evidence the federal government desired to retain exclusive jurisdiction over the offenses. The jury convicted Sixta of the pornographic video molestation charged in count 2, but hung on the other two charges relating to Camp Pendleton.
On appeal, Sixta renews his argument California lacks territorial jurisdiction over count 2 because it occurred entirely inside the family home which was located in a federal enclave. The Attorney General agrees the conviction for count 2 must be reversed for lack of territorial jurisdiction.
"It long has been established that a state will entertain a criminal proceeding only to enforce its own criminal laws, and will not assume authority to enforce the penal laws of other states or the federal government through criminal prosecutions in its state courts." (People v. Betts (2005) 34 Cal.4th 1039, 1046 (Betts), citing Huntington v. Attrill (1892) 146 U.S. 657, 669 ["Crimes and offenses against the laws of any State can only be defined, prosecuted, and pardoned by the sovereign authority of that State"].) California has territorial jurisdiction over only those crimes committed "in whole or in part" in this state. (§ 27, subd. (a)(1).) "If a court is without jurisdiction, no amount of consent or estoppel can bestow it." (People v. Dethloff (1992) 9 Cal.App.4th 620, 625.)
"A federal enclave is land over which the federal government exercises legislative jurisdiction. [Citation.] The federal power over such enclaves emanates from article I, section 8, clause 17 of the United States Constitution, which gives Congress the power '[t]o exercise exclusive legislation in all cases whatsoever' over the District of Columbia and 'to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings.'" (Taylor v. Lockheed Martin Corp. (2000) 78 Cal.App.4th 472, 478 (Taylor).) "An enclave is created when the federal government purchases land within a state with the state's consent, which may be conditioned on the retention of state jurisdiction consistent with the federal use. [Citations.] Unlike those situations where the United States has a mere proprietary interest in a piece of land, the voluntary cession of land by a state to the federal government is an actual transfer of sovereignty." (Ibid.)
"In 1942 the United States condemned land in San Diego County, California, for the Camp Pendleton Marine Corps Training Base. [Citation.] California ceded exclusive jurisdiction to the United States and the Secretary of the Navy accepted the cession. [Citations.]" (U.S. v. Jenkins (9th Cir. 1983) 734 F.2d 1322, 1325, fn. 2.) At the time California ceded the land on which the base sits to the United States, former Political Code section 34 was in effect and it provided a blanket consent to exclusive federal jurisdiction (with certain reservations of authority to the state for the service of process and taxation, not relevant here). (Former Pol. Code, § 34, as amended by Stats. 1939, ch. 710, § 1, p. 2231 ["The Legislature consents to the purchase or condemnation by the United States of any tract of land within this State for the purpose of erecting forts, magazines, arsenals, dockyards, and other needful buildings . . . "].) "This blanket consent to federal jurisdiction rendered [Camp Pendleton] a federal enclave." (Taylor, supra, 78 Cal.App.4th at p. 480; Renteria, supra, 165 Cal.App.4th at p. 1115 ["Camp Pendleton is a federal enclave and the federal government exercises exclusive criminal jurisdiction over it"].)
For purposes of territorial jurisdiction, then, a federal enclave like Camp Pendleton is akin to another state or jurisdiction located inside California's borders, which raises the issue of interstate (or interjurisdiction) crimes. Sections 778 through 778b "establish territorial jurisdiction for specific types of interstate situations." (Betts, supra, 34 Cal.4th at p. 1047.) Relevant here, section 778a provides California has territorial jurisdiction when a person "with intent to commit a crime, does any act within this state in execution or part execution of that intent" and that act culminates in a crime outside of California. (§ 778a, subd. (a), italics added.) Betts is instructive as to what constitutes an in-state preparatory act in this context.
In Betts, the defendant, a long-haul truck driver who had recently married another long-haul truck driver, suggested to his new wife that they bring her nine-year-old granddaughter on a trucking trip (and de facto honeymoon) across the country. (Betts, supra, 34 Cal.4th at p. 1044.) In all, the couple took multiple interstate trucking trips with either the nine-year-old granddaughter or her slightly older sister and defendant molested the children on each of those trips while the wife was taking turns driving. (Id. at pp. 1044-1045.) Because the molestation occurred after the truck had crossed the state border, the defendant argued California lacked territorial jurisdiction over the crimes. (Id. at p. 1046.) Our high court rejected this argument, holding that California had jurisdiction under section 778a. The evidence demonstrated the defendant harbored an ongoing intent to molest his stepgranddaughters and that he took preparatory acts to further that intent by suggesting to his wife the victims accompany them on the trips and by driving them across the state—thereby "removing the girls from the protection of their mother" and providing him with opportunities to be alone with them. (Betts, at p. 1056.)
In contrast here, while the record establishes Sixta harbored an ongoing intent to molest his stepdaughters over a period of several years—in North Carolina and in California—the record does not contain evidence he committed any preparatory acts outside of Camp Pendleton to facilitate molesting R inside the base. Count 2 occurred entirely within Sixta's bedroom in his home on Camp Pendleton. Had there, for example, been any evidence Sixta rented or purchased the pornographic film he showed R outside of Camp Pendleton, our state courts would have jurisdiction over him. As the record stands, however, it contains no such evidence and therefore we must reverse his conviction for count 2 for lack of jurisdiction. (Cf. Renteria, supra, 165 Cal.App.4th at pp. 1118-1119 [California had territorial jurisdiction over defendant's evasion of peace officers because his evasive behavior began outside of Camp Pendleton and "merely continued" as he drove onto the base].)
Sixta further requests we direct the trial court to dismiss the charge "with prejudice." We will not do so. "Territorial jurisdiction establishes the court's authority to try the defendant, not the defendant's culpability. If territorial jurisdiction were lacking in California for a crime committed by a defendant, it generally would exist in another state [or federal jurisdiction]; the absence of territorial jurisdiction does not signify the defendant is not culpable. Although it is true that a defendant cannot be convicted of a crime unless territorial jurisdiction exists, neither should he or she be acquitted because territorial jurisdiction is lacking. Without jurisdiction, a court has no authority to act in the matter and cannot enter judgment either in favor of or against the defendant." (Betts, supra, 34 Cal.4th at p. 1050.) Because double jeopardy has not attached, the federal government may choose to prosecute Sixta for the child molestation he committed within Camp Pendleton depending on the applicable statute of limitations or any other prosecutorial concerns.
B. Count 8 Is Not Time-Barred
Sixta argues we must reverse his conviction for count 8 (molestation of S in Temecula) because the statute of limitations expired just shy of two months before the People filed the complaint in this action. He argues the applicable limitations period for count 8 is governed by a former version of section 801.1, which, at the time, required the People to begin prosecution by S's 28th birthday. (Former § 801.1, added by Stats. 2007, ch. 579, § 40, eff. Oct. 13, 2007.) Sixta argues the charge was time-barred because the People filed the complaint 59 days past that date. Citing Perez, the People argue section 799, not section 801.1, applies to count 8. Section 799 permits prosecution at "any time" for an offense "punishable by life imprisonment." Perez held section 799's open-ended limitations period applies to section 288 lewd act convictions with true multiple-victim findings under section 667.61 because such offenses are punishable by 15 years to life under the One Strike law. (Perez, supra, 182 Cal.App.4th at pp. 239-240.) We agree with the reasoning and holding in Perez and conclude the People were permitted to prosecute count 8 at any time.
Not long after S's 28th birthday, an amendment to section 801.1 took effect which extended the limitations period for lewd acts against a minor victim to the victim's 40th birthday. (Former § 801.1, added by Stats. 2014, ch. 921, § 1, eff. Jan. 1, 2015.) --------
In Perez, the defendant was charged with four counts of committing a lewd act on a child. Each charge named a different victim, and as a result the People alleged—as they did in this case—that the defendant fell under "the alternative, and more severe punishment scheme set forth in the 'One Strike' law (§ 667.61, subds. (b), (e))." (Perez, supra, 182 Cal.App.4th at p. 234.) The jury found the defendant guilty of three of the four counts and found true the accompanying section 667.61 multiple-victim allegations for each count. (Perez, at p. 234.) On appeal, the defendant argued two of the counts were time-barred because the applicable statute of limitations had expired before the People filed the complaint. (Ibid.) Relying on recent California Supreme Court precedent regarding the distinction between enhancements and alternative penalties, the Perez court concluded the open-ended limitations period in section 799 applied to the counts instead because the jury had found the One Strike allegations true. (Perez, at p. 237.)
The relevant penal code provisions on limitations periods are as follows. Section 801.1 establishes special limitations periods for certain sex crimes, including violations of section 288. As noted, under the former version of that section applicable to this case, prosecution could have begun any time prior to the victim's 28th birthday. (Former § 801.1, added by Stats. 2007, ch. 579, § 40, eff. Oct. 13, 2007.) Section 799 provides in relevant part, "Prosecution for an offense punishable by death or by imprisonment in the state prison for life . . . may be commenced at any time." Additionally, section 805 states, "For the purpose of determining the applicable limitation of time [for commencing a criminal action] . . . An offense is deemed punishable by the maximum punishment prescribed by statute for the offense . . . [and a]ny enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense." (§ 805, subd. (a).)
The maximum punishment for a violation of section 288 is eight years. (§ 288, subd. (a); People v. Ortega (2013) 218 Cal.App.4th 1418, 1428.) However, under section 667.61, otherwise known as the One Strike law, an offender who suffers convictions of section 288 violations "in the present case" against "more than one victim" is subject to a sentence of life imprisonment. (§ 667.61, subds. (b), (c)(4), (e)(4).)
Sixta argues, as did the defendant in Perez, that section 799 applies only to offenses which are themselves punishable to life imprisonment and not to offenses subject to alternative penalties like the One Strike law. Relying on our Supreme Court's companion cases of People v. Jones (2009) 47 Cal.4th 566 (Jones) and People v. Brookfield (2009) 47 Cal.4th 583 (Brookfield), Perez rejected this argument. Perez held that Jones and Brookfield "make clear that determining whether an offense is punishable by life imprisonment must take into account an alternative sentencing scheme that applies to the offense based on other criminal conduct that the trier of fact has found to have occurred." (Perez, supra, 182 Cal.App.4th at p. 237, italics added.)
As our high court explained in Jones, an alternative penalty provision "'sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.'" (Jones, supra, 47 Cal.4th at p. 578.) In other words, alternative penalties "provide for a different term of imprisonment for the substantive offense itself under certain circumstances." (Perez, supra, 182 Cal.App.4th at pp. 238-239, citing Jones, at p. 578, italics added.) Jones concluded section 186.22, subdivision (b)(4), which imposes a more severe sentence for felonies committed for the benefit of a gang, was such an alternative penalty because the provision provides for a longer prison term for the underlying felony offense "when an additional fact is present and proved in the prosecution of the defendant, namely that the defendant committed the shooting to benefit a street gang." (Perez, at p. 238, citing Jones, at pp. 575-576.) Taking the concept further, Brookfield held that felonies punishable by a life term under section 186.22, subdivision (b)(4) are offenses "punishable by . . . imprisonment in the state prison for life" within the meaning of the more severe alternative penalty in section 12022.53, subdivision (a)(17). (Brookfield, supra, 47 Cal.4th at p. 591.)
Based on this guidance from our Supreme Court, Perez concluded the One Strike law's 15-year indeterminate sentence is an alternative penalty that "defines the length of imprisonment for the substantive offense of violating section 288," just like the penalty in section 186.22, subdivision (b)(4), because it "applies to the offense based on other criminal conduct that the trier of fact has found to have occurred"—namely that the offender committed lewd acts against more than one victim in the present case. (Perez, supra, 182 Cal.App.4th at pp. 237, 239-240.)
Sixta contends, as did the defendant in Perez, that People v. Turner (2005) 134 Cal.App.4th 1591 (Turner) makes clear we cannot consider the One Strike law when determining whether his offense is punishable by life in prison for purposes of section 799's open-ended limitations period. We reject this argument for the same reason Perez found it unpersuasive.
In Turner, the defendant was charged with first degree residential robbery and the People alleged he had suffered prior strike convictions under the "Three Strikes" law. (Turner, supra, 134 Cal.App.4th at pp. 1593, 1595.) The defendant argued the statute of limitations for the robbery offense had run, but the trial court ruled that section 799 governed because the Three Strikes law provided for a life sentence. (Turner, at pp. 1595-1596.) The reviewing court disagreed and held that courts must construe the "maximum punishment" for an "offense" referred to in section 805 as the maximum punishment prescribed for the underlying charged offense or offenses, not the maximum punishment authorized by allegations that would make defendant eligible for sentencing under an alternative sentencing scheme for recidivists. (Turner, at pp. 1596-1598.)
Turner based its conclusion on the fact sections 799 and 805 refer only to offenses and punishments prescribed by statute for the offense, "not to prosecution and punishment that applies to a particular offender, and which is based upon facts other than the commission of the offense for which he or she is being prosecuted." (Turner, supra, 134 Cal.App.4th at pp. 1596-1597.) Turner concluded the Three Strikes law does not punish any particular offense, but rather punishes those "who commit a current felony offense, and who are recidivist offenders." (Turner, at p. 1597.) "The allegations of prior serious felony convictions within the meaning of the Three Strikes law do not constitute an 'offense' for which the defendant is to be prosecuted. Instead these allegations refer only to facts relevant to a particular offender, which if proved establish not the commission of an offense, but his status as a recidivist." (Ibid.) Turner noted section 799 demonstrated the Legislature's preference "that the selection of the applicable statute of limitation should be based upon the seriousness of the offense as indicated by the punishment prescribed for it," and not for recidivist status. (Turner, at p. 1598, italics added.)
In other words, as the Perez court reasoned, the punishment under the Three Strikes law is aimed at "the offender and not the offense" and is imposed "'without regard to the seriousness of the current felony offense.'" (Perez, supra, 182 Cal.App.4th at p. 241, citing Turner, supra, 134 Cal.App.4th at p. 1597.) Perez concluded Turner's holding regarding the Three Strikes law was not applicable to the One Strike law because the former was based on the offender's status as a recidivist whereas the One Strike law is based on the seriousness of the current sex crimes. (Perez, at p. 241.) We agree with this reasoning. The One Strike law requires the People to prove "in the present case" that the defendant committed lewd acts against more than one victim. (§ 667.61, subd. (e)(4).) As the Perez court aptly concluded, "Defendant's [lewd acts against multiple minors] were serious enough to earn him a life sentence; therefore they were serious enough to warrant prosecution at any time during his natural life." (Perez, at pp. 241-242.) The same is true of Sixta's crimes.
Sixta argues Perez was wrongly decided and we should apply the reasoning in Turner instead. The contention is not well-taken. Turner was decided before Perez and concerned the Three Strikes law, which is aimed at punishing recidivists based on acts a previous fact-finder found true in an earlier case. Perez, like our case, involved the One Strike law, which, in contrast, is aimed at "ensur[ing] serious sexual offenders receive long prison sentences whether or not they have any prior convictions." (People v. Wutzke (2002) 28 Cal.4th 923, 929.) Unlike the Three Strikes law, the One Strike law requires the prosecution to prove in the current case the defendant molested more than one victim. (§ 667.61, subd. (e)(4).) Additionally, we note our Supreme Court declined to review Perez and other appellate courts have followed it. (See Perez, supra, 182 Cal.App.4th 231, review den. June 9, 2010; Anthony v. Superior Court (2010) 188 Cal.App.4th 700, 712-718 [approving of and following Perez over Turner in context of alternative penalty for premeditated attempted murder because the penalty there was similarly "offense-based" not recidivism based].) We therefore conclude count 8 was not time-barred.
III
DISPOSITION
We reverse the conviction for count 2, affirm the remaining convictions (counts 5, 8), and modify the judgment to reflect a total sentence of 30 years to life. As modified, we affirm the judgment. We direct the trial court to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. MILLER
J.