People v. Figueroa CA5

Filed 8/26/20 P. v. Figueroa CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F077514 Plaintiff and Respondent, (Super. Ct. No. VCF331062) v.

AURELIO MORENO FIGUEROA, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

Aurelio Moreno Figueroa was convicted of seven crimes related to sexually abusing a minor. The prosecution pled and proved two crimes violated California’s One Strike Law. (Pen. Code, § 667.61.)1 Depending on the circumstances pled and proven, the One Strike Law mandates a sentence of either 15 years to life, 25 years to life, or life without the possibility of parole. (§ 667.61, subds. (a), (b), (j), (l), & (m).) Figueroa was sentenced to serve several consecutive sentences, including two 15- years-to-life sentences under the One Strike Law. He contends the court erred in pronouncing judgment because the court stated no reason for its decision to impose consecutive sentences that were not otherwise mandatory. On this basis, he seeks a new sentencing hearing. The People likewise seek a new sentencing hearing but for a different reason. They contend the court erroneously imposed less severe punishment than required by the One Strike Law. They request a new sentencing hearing for the trial court to properly impose the greater sentence. We conclude the People are correct, rendering Figueroa’s claims moot. We will vacate the sentence and remand for a new sentencing hearing. In so doing, we determine an increase in sentence does not violate double jeopardy principles and the pleadings adequately advised of the maximum potential punishment. BACKGROUND Charges The Tulare County District Attorney charged Figueroa with committing seven crimes. Counts 1 and 2 charged violations of section 288, subdivision (b)(1), forcible lewd act on a victim under 14 years old. Each count included a special allegation the crimes involved binding and tying the victim within the meaning of section 667.61, subdivisions (a), (b), and (e).