People v. Aguilar CA4/3

Filed 12/11/13 P. v. Aguilar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G047777

v. (Super. Ct. No. 09WF1126)

JOSE LUIS AGUILAR, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Carla M. Singer, Judge. Affirmed as modified and remanded for re-sentencing. David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Jose Luis Aguilar of six counts of committing lewd acts upon three children under age 14. (Pen. Code, § 288, subd. (a); all further statutory references are to this code.) As to all of the counts, the jury found that the offenses were committed against more than one victim. The jury also found that as to four of the counts, defendant had engaged in substantial sexual contact. The court subsequently found defendant had suffered a prior qualifying conviction under section 1203.066, subdivision (a)(5), he was a habitual sex offender (§ 667.61), he had suffered a prior serious felony conviction, and that the present offense was also a serious felony (§ 667, subd. (a)(1). The court sentenced defendant to six consecutive terms of 50 years to life, plus 5 additional years for the prior serious felony conviction. In his appeal, defendant raises several claims. First, he contends the court erred in imposing double terms under section 667, subdivisions (d) and (e)(1), on counts 3, 5, 7, and 8, because the “prior” convictions did not, in fact, precede these crimes. The Attorney General agrees that this contention is correct. We likewise agree and will order the court to re-sentence defendant accordingly. Second, defendant argues the court improperly sentenced him to 25 years- to-life terms (doubled by the court to 50 years to life) under section 667.61, subdivisions (a) and (d)(1) on counts 3, 5, 7, and 8. We agree that this section does not apply because when the conduct, which is the subject of these counts, took place defendant had not “been previously convicted.” (§ 667.61, subd. (d)(1).) Nevertheless, the sentence was proper because it was not only authorized, but mandated under section 667.61, subdivision (j)(2). Third, defendant claims that, by imposing six consecutive terms, the court erred in believing consecutive sentencing was mandatory under section 667.61, subdivision (i). The court properly imposed consecutive sentences, not under this section, but because it found the acts for which defendant was convicted were separate acts.