People v. LopezPeople v. Lopez
RICHLI, J.
Defendant invited neighborhood boys over to his house, then played a pornographic video for them. While one of the boys was lying prone, watching the video, defendant grabbed him by the waist and “pump[ed] him” up and down, to show him “how it‘s going to feel when you‘re with a girl” — i.e., to simulate sex. He then did the same thing to a second boy.
As a result, a jury found defendant guilty on two counts of a nonforcible lewd and lascivious act on a child under 14 (
Defendant contends that the trial court, after sentencing him under the habitual sexual offender law, had to strike or dismiss the finding under the one strike law. He cites People v. Snow (2003) 105 Cal.App.4th 271, 129 Cal.Rptr.2d 314, which does indeed support this contention. In the published portion of this opinion, however, we will respectfully decline to follow Snow. We will hold that the one strike law finding must stand, for two reasons: first, it is not inconsistent with sentencing under the habitual sexual offender law; and second, in the event the habitual sexual offender law finding is ever invalidated on appeal or habeas corpus, it facilitates sentencing defendant under the one strike law.
In the unpublished portion of this opinion, we find no other prejudicial error. Accordingly, we will affirm.
I-IV*
V
SENTENCING ISSUES
A. Additional Factual and Procedural Background.
At sentencing, defense counsel stated: “I would simply just ask the Court to consider, given Mr. Lopez‘s age, that the Court consider striking the strike and perhaps just sentencing him to 25 years to life rather than doubling . . . .” The trial court thanked defense counsel, then proceeded to sentence defendant as follows:
On count 5 (using pornography to seduce a minor), the principal term: the upper term of three years (Pen.Code,
On count 1 (lewd and lascivious act on Benny): 25 years to life under the habitual offender law (
On count 2 (lewd and lascivious act on Chris): 50 years to life, on the same basis, stayed under
On count 3 (child annoyance as to Benny): the upper term of six years (
On count 4 (child annoyance as to Chris): a total of 12 years, on the same basis, also stayed under
On the prior serious felony enhancement: five years, to be served consecutively. (
Accordingly, defendant‘s total sentence was 61 years to life in prison.
B.-C.***
D. Failure to Strike the Multiple-victim Special Circumstance Under the One Strike Law.
Defendant contends the trial court erred by failing to dismiss or strike the true finding on the multiple-victim special circumstance. (
In connection with counts 1 and 2, the information invoked two alternative sentencing schemes. First, for purposes of the habitual sexual offender law (
Both the one strike law and the habitual sexual offender law are alternative sentencing schemes for specified sexual offenses, including — as here — nonforcible lewd conduct with a child under 14. (
1. When only one subdivision (e) special circumstance is found true, the defendant “shall be punished” by 15 years to life in prison (
2. When two or more subdivision (e) special circumstances are found true, the defendant “shall be punished” by 25 years to life in prison (
3. When one or more subdivision (d) special circumstances are found true, the
The one strike law then provides that: “If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in [this section] to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in [this section] rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in [this section], and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law.” (
Last, but for our purposes, not least, the one strike law also provides: “Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e).” (
Striking the multiple-victim special circumstance would violate this express prohibition. (Cf. People v. Bracamonte (2003) 106 Cal.App.4th 704, 713, 131 Cal.Rptr.2d 334 [enhancements under
The habitual sexual offender law provides that a defendant who meets its criteria “is punishable by imprisonment in the state prison for 25 years to life.” (
Moreover, the one strike law specifies that, when only one subdivision (e) special circumstance is found true, “that circumstance or those circumstances shall be used as the basis for imposing the term provided in [this section] rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty.” (
The first was People v. Johnson (2002) 96 Cal.App.4th 188, 116 Cal.Rptr.2d 742 [Fourth Dist., Div. One], disapproved on other grounds in People v. Acosta, supra, 29 Cal.4th at p. 134, fn. 13, 124 Cal.Rptr.2d 435, 52 P.3d 624. There, the trial court imposed a sentence under the one strike law (which it doubled under the three strikes law). It also imposed a sentence under the habitual sexual offender law but stayed it, citing
The appellate court held that the one strike law and the habitual sexual offender law are mutually exclusive and that the trial court has discretion to choose which one to apply. (People v. Johnson, supra, 96 Cal.App.4th at pp. 204-207, 116 Cal.Rptr.2d 742.) It also held, however, that the trial court erred by staying the sentence under the law not chosen, purportedly pursuant to
Much of the analysis in Johnson turned on certain statutory language that was in effect when the charged crimes were committed but which — as the court noted — had been deleted in 1998. (People v. Johnson, supra, 96 Cal.App.4th at pp. 204-206, 116 Cal.Rptr.2d 742.) In People v. Snow, supra, 105 Cal.App.4th 271, 129 Cal.Rptr.2d 314, the court held that Johnson remained good law even after the amendment. (Snow, at pp. 281-282, 129 Cal.Rptr.2d 314.) Thus, the court reiterated that “the one strike law and the habitual sexual offender law continue to be alternative sentencing schemes: a sentence may be imposed under one of the sentencing schemes, but not both, and the decision to choose which sentencing scheme to impose is within the reasonable discretion of the sentencing court.” (Id. at p. 282, 129 Cal.Rptr.2d 314.) It also reiterated that: “[S]ection 654 does not apply to alternative sentencing schemes. [Citations.]” (Id. at p. 283, 129 Cal.Rptr.2d 314.)
Citing Johnson, the court in Snow concluded that when “the alternative sentencing schemes of
To sum up, in holding that the unused sentencing finding must be stricken or dismissed, Snow relied on Johnson; Johnson, in turn, relied on People v. Jones, supra, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163.2
In Jones, the trial court had imposed both a five-year prior serious felony enhancement (
Jones, however, did not actually discuss whether striking the unused enhancement finding was the appropriate remedy. As the Supreme Court has often reminded us, “cases are not authority for propositions not considered. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176, 119 Cal.Rptr.2d 903, 46 P.3d 372, and cases cited.) Moreover, it is not at all clear whether the court intended to strike the enhancement finding or the punishment for the enhancement. Since the trial court had sentenced the defendant to a separate and consecutive term for each enhancement, certainly the court had to do something to eliminate the excess punishment. Thus, Jones is not authority for the proposition that an unused enhancement finding must be stricken.
The correct procedure would have been to impose a sentence on the barred enhancement, but then stay execution of that sentence.
It is important to distinguish between two possible reasons for staying the sentence on an enhancement. Ordinarily, an enhancement must be either imposed or stricken “in furtherance of justice” under
But rule 4.447 has nothing to do with a discretionary stay of an enhancement. It is limited to the situation in which an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation — and that situation only — the trial court can and should stay the enhancement. (E.g., People v. Campbell (1995) 40 Cal.App.4th 1666, 1674, fn. 7, 48 Cal.Rptr.2d 340, disapproved on other grounds in People v. Ledesma (1997) 16 Cal.4th 90, 101, fn. 5, 65 Cal.Rptr.2d 610, 939 P.2d 1310; People v. Johnson (1986) 188 Cal.App.3d 182, 190-191, 232 Cal.Rptr. 202; People v. Whigam (1984) 158 Cal.App.3d 1161, 1169, 205 Cal.Rptr. 227, disapproved on other grounds in People v. Poole (1985) 168 Cal.App.3d 516, 524, fn. 7, 214 Cal.Rptr. 502.)
A stay under rule 4.447 is not issued under
We do understand that, even if the unused finding is stricken, it may later be “revived by operation of law.” (People v. Bracamonte, supra, 106 Cal.App.4th at p. 712, fn. 5, 131 Cal.Rptr.2d 334.) For example, if for some reason we invalidated the actual sentence in this appeal, we could impose the correct alternative sentence ourselves; or, we could just remand for resentencing. Similarly, if the actual sentence is invalidated in a state or federal habeas corpus proceeding, the habeas corpus court could give the trial court an opportunity to impose the correct alternative sentence. (See North Carolina v. Pearce (1969) 395 U.S. 711, 714, 89 S.Ct. 2072, 23 L.Ed.2d 656;
Despite this, our Supreme Court has repeatedly indicated that — at least in the context of
In sum, we do agree with the Johnson/Snow court that two alternative sentencing schemes, such as the one strike law and the habitual sexual offender law, are analogous to two alternative enhancements, such as in Jones. We do not agree, however, that Jones is authority for striking the unused alternative. And even if it were, we see no way around the unequivocal command that “the court shall not strike” any special circumstance finding under the one strike law. (
Here, the trial court properly chose to proceed under the habitual sexual offender law. We therefore need not decide whether it could have proceeded under the one strike law instead, nor what, in that event, it would have had to do with the unused finding under the habitual sexual offender law.
The trial court also properly allowed the unused finding under the one strike law to stand; it was not inconsistent with the sentence, so there was no need to strike, dismiss, or stay it.
Finally, we believe the trial court could have imposed a “fallback” sentence under the one strike law, then stayed it, with the stay to become permanent upon defendant‘s service of his actual sentence under the habitual sexual offender law. Although it did not do so, it did do the most important thing — it let the one strike law finding stand, and it thereby preserved the possibility of resentencing defendant, if necessary, under the one strike law.
We therefore decline to strike or dismiss the multiple-victim special circumstance finding under the one strike law.
E.†
VI
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the sentencing minute order and the abstract of judgment as indicated in part V.E of this opinion and to forward a certified copy of the amended abstract to the Department of Corrections. (
We concur: RAMIREZ, P.J., and WARD, J.