Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F6991
BUTZ, J.Pursuant to a negotiated plea, defendant Shayne Christopher Worthey pleaded guilty to five felonies arising out of his molestations of two boys. In exchange, other allegations were to be dismissed and defendant was to receive a state prison sentence of between 12 years and 19 years eight months. The trial court sentenced him to 16 years eight months. Defendant timely appealed.
On appeal, defendant contends the trial court mistakenly thought it lacked discretion whether to impose a full-term consecutive sentence on one count. But his total sentence is within the agreed range set by the plea bargain, and the trial court’s comments at sentencing show it is not reasonably probable that defendant would obtain a lower sentence on remand. Therefore, assuming defendant is correct that the trial court erred at sentencing, he has failed to demonstrate prejudice.
Defendant also contends a particular fine is not authorized and he is entitled to additional custody credit, claims which the Attorney General concedes. We will accept the Attorney General’s concessions and order the trial court to prepare a new abstract of judgment. In all other respects, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2002, defendant approached 15-year-old Patrick M. at a market and invited him home to play pool, where defendant gave the boy alcohol and marijuana. Defendant grabbed Patrick’s buttocks and then took off his own pants and underwear, revealing an erection (lewd act with person 14 to 15 years old count 3). Defendant repeatedly invited Patrick to sodomize him, but Patrick left after telling defendant he “was not like that.”
A couple of months later, defendant saw Patrick at the same market and bought him some cigarettes. Patrick returned to defendant’s home where they smoked methamphetamine and marijuana, and drank alcohol; Patrick passed out “almost immediately after drinking the alcohol” (giving controlled substance to a minor count 7). When Patrick woke up, his pants and underwear had been removed and he was seated in a reclining chair with his hands tied in front of him. Defendant was rubbing his erect penis against Patrick’s face and lips. Defendant sat on, masturbated, and orally copulated Patrick, then placed his penis in Patrick’s hand and asked Patrick to masturbate him (forcible oral copulation count 5). Patrick refused and had repeatedly told defendant to stop throughout the incident. Eventually, Patrick was untied and allowed to leave. Defendant threatened Patrick, who was too scared to report the incident at first, but later told a psychologist about it.
Defendant’s nephew, J.W., reported that when he was five, defendant placed him in defendant’s lap and rubbed against him (lewd act with person under 14 count 1). When J.W. was nine, defendant asked J.W. to sleep with him. While they were in bed, defendant took off his clothes and J.W.’s pajama pants, rubbed his penis against J.W.’s buttocks, and licked J.W.’s anus (lewd act with person under 14 count 2). Defendant also masturbated himself with one hand while holding J.W.’s penis with the other. Defendant had masturbated in front of J.W. before. J.W. was afraid of defendant, who threatened him if he said anything.
Defendant pleaded guilty to two counts of lewd conduct with a minor under 14 years, for acts against J.W. (Pen. Code, § 288, subd. (a) counts 1 & 2).) For acts against Patrick, defendant pleaded guilty to lewd conduct with a minor aged 14 or 15 (id., §§ 288, subd. (c)(1) count 3), forcible oral copulation (id., 288a, subd. (c)(2) count 5), and furnishing a controlled substance to a minor (Health & Saf. Code, § 11353 count 7). The written plea form states the two sex crimes against Patrick (counts 3 & 5) took place on separate occasions, and that the forcible oral copulation count against Patrick (count 5) would be sentenced pursuant to Penal Code section 667.6, subdivision (d) (hereafter section 667.6(d)), providing for full-term consecutive sentencing.
Undesignated statutory references are to the Penal Code.
The probation report recommended the maximum sentence of 19 years eight months, which meant imposing the upper term of nine years on count 7 and a full consecutive midterm of six years on count 5, conforming to the written plea agreement.
The mitigation statement argued that section 667.6(d) did not apply because counts 5 and 7 “both involve the same victim and the same occasion.” The aggravating statement argued that defendant’s act of giving Patrick drugs took place well before the sex crimes, giving defendant “ample opportunity to reflect on his crimes and discontinue his plan to render the victim unconscious in order to sexually assault him.”
At sentencing, although defense counsel mentioned section 667.6(d), he did not raise the claim that it was categorically inapplicable to this case; he argued there was insufficient evidence of the lengthof time that elapsed between the offenses to satisfy the “separate occasions” requirement.
The trial court sentenced defendant as follows: For the base term, count 7 (giving drugs to a minor), the trial court imposed the midterm of six years, not the upper term of nine years recommended by the probation report. For counts 1 to 3, the court imposed consecutive one-third midterms, totaling four years eight months. For count 5 (forcible oral copulation), as mentioned in the plea form and as recommended by the probation report, the trial court imposed a full-term consecutive midterm of six years, pursuant to section 667.6(d), stating: “On Count 5, six years, that is using [section] 667.6(d). It was the same victim on a separate occasion. The Court finds that between the commission of the crime in Count 7 and Count 5, defendant had a reasonable opportunity to reflect upon his... actions and nevertheless resumed the sexually assaultive behavior.”
Defendant filed a timely appeal but did not request a certificate of probable cause.
DISCUSSION
I.
Defendant contends the trial court erred in imposing a full-term consecutive sentence for count 5, forcible oral copulation. We find that any error was harmless.
The People first suggest that because defendant’s total sentence was within the terms of the plea bargain, he may not challenge the specifics of the sentence imposed. However, the People appear to agree that the parties expected the trial court to exercise discretion as to count 5. We will assume, therefore, that defendant may challenge the exercise of that discretion in this appeal. (See People v. Buttram (2003) 30 Cal.4th 773, 777 [unless otherwise stated, plea agreement reserves right to challenge trial court’s exercise of discretion]; cf., e.g., People v. Vera (2004) 122 Cal.App.4th 970, 982-983 [plea bargain was for “the very judicial action” challenged on appeal].)
A general sentencing rule is that, where the trial court chooses to make a sentence on a subordinate term consecutive to the sentence imposed on the principal term, the length of the subordinate sentence is one-third the middle of the sentencing triad for that offense. (§ 1170.1, subd. (a); see People v. Felix (2000) 22 Cal.4th 651, 655.) The Legislature has enacted a number of exceptions to this general rule.
Section 667.6 establishes two exceptions one mandatory and one permissive for defined sexual offenses, including forcible oral copulation. (§ 667.6, subd. (e)(7).) Section 667.6 provides in relevant part as follows:
“(c) In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e)....
“(d) A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.”
Section 667.6(d) mandates full-term consecutive sentencing in cases of multiple victims or multiple occasions, when both the principal and subordinate terms are for offenses specified in subdivision (e); section 667.6, subdivision (c) permits full-term consecutive sentencing when there is only one victim on one occasion, if “at least one offense specified in subdivision (e)” is at issue. (See People v. Pelayo (1999) 69 Cal.App.4th 115, 123-124.)
As defendant notes, although the offense for the subordinate term (forcible oral copulation count 5) is listed in subdivision (e), the offense for the principal term (giving drugs to a minor count 7) is not. (§ 667.6, subd. (e)(7).)
Because section 667.6(d) applies only when both offenses are listed in subdivision (e), it did not apply here and the trial court was not required to impose a full-term consecutive sentence for count 5.
However, because “at least one offense specified in subdivision (e)” was involved, section 667.6, subdivision (c) permitted the trial court to impose a full-term consecutive sentence on count 5.
Defendant lured a teenage boy into his home to use drugs, intoxicated the boy until he passed out, and then tied him up before committing a forcible sex act against him. Given these horrific, predatory facts, a remand for a new sentencing hearing on count 5 would be futile because “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of error.” (People v. Davis (1995) 10 Cal.4th 463, 552; see People v. Osband (1996) 13 Cal.4th 622, 729 [sentencing under § 667.6, subd. (c); failure to state reasons for fully consecutive sentencing harmless].)
II.
As recommended by the probation report, the trial court ordered defendant to pay a $610 fee pursuant to section 290.3. This included “$20.00 pursuant to Section 76104.7 of the Government Code.”
Defendant contends the trial court should not have imposed this assessment, because the statute authorizing it became effective after he committed the crimes in this case. The statute, Government Code section 76104.7, became effective on July 12, 2006. (Stats. 2006, ch. 69, § 18.) The latest crime to which defendant pleaded guilty was committed no later than September 2, 2005. The Attorney General concedes that the assessment, as applied to defendant, violates ex post facto principles. We agree. (See People v. Batman (2008) 159 Cal.App.4th 587, 591.) We shall strike the $20 component of the fine.
III.
Defendant served 707 days of presentence custody. Because he committed violent felonies (§ 667.5, subd. (c)(5) & (6)), as defined, he could earn only 15 percent worktime or conduct credits (§ 2933.1, subd. (a)). The trial court granted defendant 105 days of conduct credit.
Defendant contends the trial court should have granted him 106 days of conduct credit, because 15 percent of 707 is 106.05. The Attorney General concedes defendant’s math is correct. We agree. We award defendant one additional day of conduct credit.
DISPOSITION
The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a certified copy of an amended abstract of judgment, reflecting at item 11 that the sex offender fee is $590, pursuant to section 290.3; and at item 14 that the total presentence custody credit is 813 days, based on 707 actual days and 106 days of conduct credit. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P. J., HULL, J.