People v. Thompson

Opinion

HASTINGS, J.

Defendant pled guilty to two counts of burglary (counts I & V—Pen. Code, § 459); two counts of oral copulation (counts II & VI—Pen. Code, § 288a, subds. (d) & (c)); two counts of forcible rape (counts HI & VII—Pen. Code, § 261, subds. (2) & (3)); and two counts of robbery (counts IV & VIE—Pen. Code, § 211). In addition defendant admitted using a knife in the commission of the above offenses (Pen. Code, §§ 12022, subd. (b)/12022.3). Probation was denied and he was sentenced to state prison for a maximum term of 31 years.

1

He now appeals contending (1) the trial court erroneously failed to exercise its discretion in sentencing defendant to state prison, and (2) the trial court erroneously failed to consider, as mitigating factors, that defendant has no prior record and was addicted to cocaine at the time of the offenses.

On November 15, 1980, defendant burglarized, robbed, raped, and forced Rosalie P. to orally copulate him while he personally used a knife. On December 11, 1980, defendant burglarized, robbed, raped, and forced Carmelita L. to orally copulate him while he personally used a knife.

The court, at the time of sentencing, stated: “. . .On Count VI, the violation of Section 288, Subdivision c, the Court will impose the mid term of six years. That six years will run consecutive to the 16 years [imposed for counts n & HI] and under [Penal Code] Section 667.6,

2

it is mandatory that the consecutive

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term be imposed, [f] I might add at this time that the Court imposed the six years on Count HI under the same Code Section, 667.6. [f] So we have the 16 plus the six, which is 22 years. ... On Count VH, the forcible rape, the Court will impose the mid term of six years, and again under 667.6, that six years is to run consecutive to the sentence imposed on count H. . . .”

Defendant asserts that because the court mentioned the “mandatory” provision (subd. (d)) of section 667.6 at the time it imposed the consecutive sentence for count VI (oral copulation of Carmelita L.), it must have “mistakenly believed” that it was “required to sentence” him to full, separate and consecutive terms on each of the four sex offense counts. He states that one act of oral copulation and one act of rape (counts H & HI) was committed against Rosalie P. and one act of oral copulation and one act of rape (counts VI & VH) was committed against Carmelita L.; that as to each victim, all of the acts were committed on