People v. Stought

California Court of Appeal Feb 4, 1981 No. Crim. 11063Published

Before: Paras

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Holding. The court held that a consecutive sentence imposed under Penal Code section 667.6, subdivision (c), is not an enhancement requiring pleading and proof, as it is a sentencing option based on the underlying conviction rather than additional facts.

Issues

Whether a consecutive sentence under Penal Code section 667.6, subdivision (c), must be pleaded and proved at trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Subdivision (c) thus unequivocally provides for a special consecutive term independent or “in lieu” of that established by section 1170.1.”

“There is nothing to plead and prove as an additional ingredient of such an offense.”

“The consecutive sentence permitted by Penal Code section 667.6, subdivision (c), is based on the crime for which convicted; no additional factual finding incidental to another charge is necessary.”

Opinion

PARAS, J.

On July 30, 1980, a jury found defendant guilty of forcible oral copulation in concert with another person (count I; Pen. Code, § 288a, subd. (d)), false imprisonment (count II; Pen. Code, § 236), and forcible oral copulation (count III; Pen. Code, § 288a, subd. (c)).

On August 15, 1980, defendant was denied probation and sentenced to

[742]

prison for the nine-year upper base term for count I, plus an eight-month consecutive term for count II and eight more consecutive years for count III, the latter pursuant to Penal Code section 667.6, subdivision (c). He appeals the judgment, challenging the imposition of consecutive sentences.

Specifically, defendant contends that the eight-year consecutive term on count III was improperly imposed “since that enhancement was not pleaded and proved at trial.” That is the sole issue before us.

Penal Code section 1170.1, subdivision (e), states in pertinent part: “The

enhancements

provided in Sections. . .667.6. . .shall be pleaded and proven as provided by law.” (Italics added.) Penal Code sections 667.6, subdivision (a) and 667.6, subdivision (b), provide respectively for five- and ten-year “enhancements” for prior sex offenses. There is thus no question that these are subject generally to the pleading-proof requirement of section 1170.1, subdivision (e).

But Penal Code section 667.6, subdivision (c), states:

“In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed

for each violation of subdivision 2 or 3 of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm whether or not the crimes were committed during a single transaction. If such term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment, and shall commence from the time such person would otherwise have been released from imprisonment.

People v. Stought

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PARAS, J.

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