People v. Figueroa

Opinion

RAMIREZ P. J.

A jury convicted defendant of two counts each of aggravated sexual assault of a minor (Pen. Code, § 269, subd. (a)(1)),

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forcibly committing lewd and lascivious acts on a minor (§ 288, subd. (b)(1)), committing lewd and lascivious acts on a minor (§ 288, subd. (a)), committing lewd and lascivious acts on a person under the age of 16 (§ 288, subd. (c)) and one count of forcible sodomy (§ 286, subd. (c)(2)). He was sentenced to prison for two consecutive terms of 15 years to life plus 15 years four months. Defendant appeals, contending that the sentencing court erred in concluding that his terms for the aggravated sexual assaults must be run consecutively to each other under the provisions of section 667.6, subdivision (d). We disagree and affirm the judgment, while directing the trial court to correct errors in the abstract of judgment.

We need not recite the facts surrounding this case, as they are unnecessary to our discussion of the issue raised by defendant.

Applicability of Section 667.6, Subdivision (d) to the Terms for Counts 1 and 3

At the beginning of the sentencing hearing, the court announced that its tentative sentence would include a 15-year-to-life term each for counts 1 and 3, to run concurrently with each other and full consecutive terms for counts 2 and 4. However, after the prosecutor argued that the terms for counts 2 and 4 would have to be stayed pursuant to section 654, because they were the same acts as were involved in counts 1 and 3, and the terms for counts 1 and 3 would have to be run consecutively under the provisions of section 667.6, subdivision (d), the court imposed consecutive 15-year-to-life terms for counts 1 and 3.

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Defendant first contends that at the time he committed the aggravated sexual assaults of the minor victim, section 667.6, former subdivision (d) did not provide for mandatory consecutive sentences for those offenses. At the time defendant committed them, section 667.6, former subdivision (d) provided, in pertinent part, “A full, separate, and consecutive term shall be served for each violation of . . . paragraph (2) . . . of subdivision (a) of Section 261 ...” As to counts 1 and 3, the information charged defendant with “a violation of Penal Code section 269, subdivision (a), subsection (1) ... in that. . . he did . . . commit a violation of Penal Code section 261, subdivision (a), subsection (2), . . . upon [the victim], a child who was under 14 years of age and 10 or more years younger than the defendant.” The jury was instructed that it had to find, beyond a reasonable doubt, that defendant raped the victim, “in violation of Penal Code section 261 subdivision (a), subsection (2)” in order to return verdicts of guilt as to counts 1 and 3. In convicting defendant of these counts, the jury necessarily found that he committed violations of section 261, subdivision (a)(2), for which section 667.6, subdivision (d) imposes mandatory consecutive sentences.