People v. Sutton

Opinion

CARR, Acting P. J. Defendant pled no contest to seven counts of committing a lewd or lascivious act on a child under the age of fourteen. (Pen. Code, § 288, subd. (a).)1 Eighty other counts were dismissed in exchange for defendant’s plea. He was sentenced to the eight-year upper term on one count as the principal term. He received consecutive terms stayed to one-third of the midterm of six years on the other counts, for a total sentence of twenty years. (§§ 288, subd. (a), 1170.1, subd. (a).)

Defendant appeals contending his sentence exceeds statutory limits on the length of consecutive terms. He asserts section 288, subdivision (a) does not define a violent felony which falls outside the five-year limit for [1327]subordinate terms established in section 1170.1. We find no error and affirm.

Twelve years of defendant’s sentence consists of consecutive subordinate terms. Subdivision (a) of section 1170.1 provides generally that subordinate consecutive terms may not total more than five years unless the underlying convictions are for “violent felonies” as defined in section 667.5, subdivision (c). Section 667.5, subdivision (c)(6) expressly provides the term “violent felony” includes “Lewd acts on a child under 14 as defined in Section 288.”2 Despite this plain language defendant contends his subordinate terms are subject to the five-year cap of section 1170.1.

Given that violations of section 288 are expressly defined as violent felonies for the purposes of the five-year subordinate term limit, we discern no error in defendant’s sentence. All of the other appellate courts which have considered this question have reached the same conclusion. (People v. Shaw (1986) 182 Cal.App.3d 945, 946-948 [227 Cal.Rptr. 592]; People v. Stephenson (1984) 160 Cal.App.3d 7, 9-12 [206 Cal.Rptr. 444]; People v. Hetherington (1984) 154 Cal.App.3d 1132, 1136-1140 [201 Cal.Rptr. 756].)

Defendant erroneously contends our decision in People v. Mena (1988) 206 Cal.App.3d 420 [254 Cal.Rptr. 10], requires a different result. That decision has no relevance here.

In Mena we held sodomy on a child with an age difference and oral copulation on a child with an age difference are not violent felonies for the purposes of section 1170.1. (§§ 286, subd. (c), 288a, subd. (c).) (Mena, supra, 206 Cal.App.3d at pp. 428-429.) However, this conclusion was based simply on a plain reading of sections 1170.1 and 667.5, subdivision (c) which do not include those crimes within those defined as violent felonies. (Ibid.)