People v. Cummins CA3

Filed 12/22/15 P. v. Cummins CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C079158

Plaintiff and Respondent, (Super. Ct. No. 14F901)

v.

JAMES ROBERT CUMMINS,

Defendant and Appellant.

On January 22, 2015, defendant James Robert Cummins pled guilty to aggravated sexual assault of a child (Pen. Code, § 269, subd. (a)(1))1 and oral copulation of a child under the age of 14 and more than 10 years younger than the perpetrator (§ 288a, subd. (c)(1)). The trial court sentenced defendant to three years in prison for the oral copulation conviction and 15 years to life for the aggravated sexual assault conviction.

1 Undesignated statutory references are to the Penal Code.

1

The court also ordered that defendant would serve a lifetime period of parole pursuant to former section 3000.1. On appeal, defendant claims the court erred in imposing a lifetime period of parole. We disagree and affirm the judgment. DISCUSSION Defendant’s sole contention on appeal is that the trial court wrongly imposed on him a lifetime period of parole pursuant to former section 3000.1. At the time defendant committed the offenses for which he was convicted here, former section 3000.1 provided in relevant part that “[n]otwithstanding any other provision of law, in the case of any inmate sentenced to a life term under subdivision (b) of Section 209, if that offense was committed with the intent to commit a specified sexual offense, Sections 269 and 288.7, subdivision (c) of Section 667.51, Section 667.71 in which one or more of the victims of the offense was a child under 14 years of age, or subdivision (j), (l), or (m) of Section 667.61, the period of parole, if parole is granted, shall be the remainder of the inmate’s life.” (Italics added.) Defendant thus argues that in order for section 3000.1 to apply to him, he would need to have been convicted of both section 269 and section 288.7. Accordingly, the sole question raised by this appeal is whether the phrase “Sections 269 and 288.7” in former section 3000.1, subdivision (a)(2) as it existed prior to January 1, 2015, means exclusion is mandated only where the person is convicted of both offenses or whether a single conviction of either offense will suffice. (See People v. Tirey (2014) 225 Cal.App.4th 1150, 1157-1159 (Tirey), review granted Aug. 20, 2014, S219050 [majority opinion holds former § 3000.1, subd. (a)(2)’s use of “and” is clear and unambiguous and mandates lifetime parole only to persons convicted of both §§ 269 and 288.7]; Tirey, supra, 225 Cal.App.4th at pp. 1165-1168 (dis. opn. of Thompson, J.) [finds that because majority’s construction leads to absurd results, phraseology was a drafting error and word “and” should be read as “or”].)