People v. Shaw

Opinion

FRANSON, Acting P. J.

Statement of the Case

Appellant was tried by jury on a nine-count amended information charging violations of Penal Code sections 288, subdivision (a) (lewd or lascivious acts with child under age 14), 288a, subdivision (c) (oral copulation with child under age 14 and more than 10 years younger than appellant) and section 261, subdivision (2) (rape by means of force or fear). Appellant was acquitted of the section 261 count and one of thé section 288, subdivision (a), counts by way of a Penal Code section 1118.1 motion. He was found guilty of two violations of section 288a (counts five and six), four violations of section 288, subdivision (a) (counts one, four, eight, nine), and one violation of section 647a, vagrancy, a lesser included offense of section 288, subdivision (a) (count three).

Appellant was sentenced to the upper term of eight years on count one. On counts four, five, six, eight and nine, appellant was sentenced to the upper term of eight years, six years of each sentence being stayed to reduce the term on each count to two years, or one-third the six-year middle term. These five 2-year terms were ordered to be served consecutive to the sentence imposed in count one. On count three, appellant was sentenced to six months

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in the Kern County jail, to run concurrent to the sentence imposed in count one. Appellant’s total sentence was thus 18 years.

Statement of the Facts

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I.-IV.*

V.

Did the trial court violate Penal Code section 1170.1, subdivision (a) in sentencing appellant to total subordinate term of 10 years?

Appellant argues that, as counts five and six were not “violent felonies” as defined in Penal Code section 667.5, subdivision (c), the ten-year subordinate term for counts four, five, six, eight and nine exceeds the five-year maximum set forth in Penal Code section 1170.1, subdivision (g). This court need not address whether Penal Code section 288a violations are “violent felonies” as defined in section 667.5, subdivision (c), because even if they are not, the sentence was proper.