People v. Conner CA3

Filed 7/22/22 P. v. Conner CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C094715

Plaintiff and Respondent, (Super. Ct. No. 20CR002621)

v.

DONALD NICOLAUS CONNER,

Defendant and Appellant.

Defendant Donald Nicolaus Conner pleaded guilty to four sex crimes involving two minors. Defendant contends, and the People concede, that recently enacted legislative changes are ameliorative and apply to him retroactively. Furthermore, defendant claims the trial court erroneously imposed consecutive sentences for defendant’s sex crimes in violation of the statutory scheme, and alternatively, defendant received ineffective assistance of counsel. Reaching only the first contention, we vacate the sentence and remand.

1

FACTUAL BACKGROUND As the basis for defendant’s plea, the parties stipulated to the facts from the police report. In summary, over the course of several months in 2020, and while intermittently cohabitating with the victims’ parents, the 20-year-old defendant engaged in multiple nonconsensual sexual acts with two girls, aged 14 and 16 years old. Defendant’s sexual misconduct ranged from digital penetration to sexual intercourse. On several occasions, the victims were asleep when defendant initiated sexual contact. On November 3, 2020, law enforcement interviewed defendant and, after initially denying the conduct, he admitted to having sex with one of the victims but not the other. That same day, law enforcement arrested defendant. PROCEDURAL BACKGROUND The People charged defendant with 14 counts as follows: four counts of sexual penetration of an unconscious or sleeping person (Pen. Code, § 289, subd. (d)(1)),1 five counts of sexual penetration by use of force of a minor victim 14 years of age or older (§ 289, subd. (a)(1)(C)); forcible rape of a child over 14 years old (§ 261, subd. (a)(2)); rape of an unconscious or sleeping person (§ 261 subd. (a)(4)(A)); and three counts of forcible oral copulation. (§ 287, subd. (c)(2)(A).) A single count of sexual penetration of an unconscious or sleeping person (§ 289, subd. (d)(1)), and a single count of sexual penetration by use of force of a minor victim 14 years of age or older (§ 289, subd. (a)(1)(C)), applied to one victim and the remainder of the charges applied to the other victim. On July 9, 2021, in a negotiated plea, defendant pleaded guilty to one count of sexual penetration of an unconscious or sleeping person (§ 289, subd. (d)(1)) involving the first victim (count I); two counts of sexual penetration of an unconscious or sleeping