People v. Gregory CA3

Filed 12/1/14 P. v. Gregory CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C071521

Plaintiff and Respondent, (Super. Ct. No. 11F06186)

v.

LARRY PAUL GREGORY,

Defendant and Appellant.

Defendant Larry Paul Gregory appeals from the judgment entered following his conviction by a jury of eight counts of child molestation. The trial court found true allegations defendant had two previous strike convictions for lewd behavior with a child, and imposed a three strike sentence of 75 years to life on each of the eight counts, for an aggregate sentence of 600 years to life. On appeal, defendant contends the prior strike convictions were alleged only as to count one; therefore, the trial court erred in imposing three strike sentences on any other count, and the matter must be remanded for resentencing. The People counter that the prior strikes were alleged as to counts one through seven, but not as to count eight, so the

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case must be remanded for resentencing on count eight only. We agree with the People and remand for resentencing on count eight. The judgment is otherwise affirmed. BACKGROUND1 The Allegations Defendant was charged by the amended information with committing the following crimes against the five-year-old daughter of his ex-wife: oral copulation (Pen. Code, § 288.7, subd. (b)2 (counts one, two)); sexual penetration (§ 288.7, subd. (b) (count three)); lewd acts with a child under 14 (§ 288, subd. (a) (counts four, six, seven and eight)), and sexual penetration of her vagina (§ 288.7, subd. (b) (count five)). As to each of the lewd acts charges (counts four, six, seven and eight), it was alleged that defendant was previously convicted of the crime of committing a lewd act upon a child, within the meaning of sections 667.61, subdivision (d)(1), which mandates an indeterminate sentence of 25 years to life in prison for a violation of section 288, subdivision (a), and section 667.71, which mandates an indeterminate sentence of 25 years to life in prison if the fact-finder determines defendant is a habitual sexual offender. The two prior strike convictions were alleged as follows, after the allegations of all eight substantive counts: “PRIOR CONVICTION(S) “(AS TO COUNTS ONE THROUGH SEVEN) “It is further alleged as to count One pursuant to Penal Code Section(s) 667(b) through (i) that the Defendant(s): LARRY PAUL GREGORY, has suffered the following prior conviction(s) of a serious or violent felony or juvenile adjudication: