Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F00584
SCOTLAND, P. J.
A jury found defendant Andrew Mackey guilty of one count of sexual penetration of a child under the age of 10 (Pen. Code, § 288.7, subd. (b); count one), three counts of lewd acts with a child under the age of 14 (Pen. Code, § 288, subd. (a); counts two, three, and four), and the attempted commission of a lewd act on a child under the age of 14 (Pen. Code, §§ 288, subd. (a), 664; count five [further section references are to the Penal Code unless otherwise specified].) For the four completed offenses, the jury found that he engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)) and, for all five counts, that he had been convicted in 1998 for a lewd act with a child (§ 288, subd. (a)), within the meaning of four different recidivist provisions (§§ 667, subd. (a), 667, subds. (b) & (d), 1170.12, 667.61, 667.71).
At sentencing, the trial court found that “the operative facts for which there were convictions under Counts [one], [two], [three], and [four] all stem from the same set of time and space occurrences here. And in fact, each of those four convictions stem from defendant’s actions with the victim in the bedroom over a space of time, approximately 10 minutes.” This finding brought defendant within the exception to what otherwise would have been mandatory consecutive sentences. (§ 667, subd. (c)(6); People v. Deloza (1998) 18 Cal.4th 585, 588, 595-596.) The court sentenced defendant to state prison as follows: For each completed offense, the court imposed concurrent indeterminate terms of 25 years to life, doubled to 50 years to life due to the three strikes law, (§§ 667.61, 667, subd. (e)) and four consecutive enhancements of five years each (§ 667, subd. (a)). For the attempt, it imposed a determinate term of twice the middle term of three years (§ 667, subd. (e)) with a five-year enhancement (§ 667, subd. (a)). As to sentencing “under [section] 667.71, [it imposed] the identical sentences just imposed under [section] 667.61. However, each of those sentences will be stayed pursuant to... section 654.”
On appeal, defendant contends that the trial court imposed an unauthorized sentence for the aggravated sexual penetration (§ 288.7, subd. (b); count one); erred in ordering the enhancements attached to counts two, three, and four to run consecutively to the sentence imposed on count one; failed to consider exercising its discretion to strike the recidivist finding for purposes of section 667, subdivision (e); and erred in staying the section 667.71 sentence pursuant to section 654, rather than in accordance with rule 4.447 of the California Rules of Court. The People assert the court was fully aware of its discretion to strike the recidivist finding, but otherwise concede the sentencing errors. We shall accept the concessions of error, reject defendant’s argument regarding the recidivist finding, and remand the matter for resentencing.
Because the facts underlying the convictions are irrelevant to the issues on appeal, we omit them in this opinion.
DISCUSSION
I
Section 667.61 provides for a sentence of 25 years to life for a defendant convicted of an offense listed in subdivision (c) of that section if, among other circumstances, there is a prior conviction for an offense listed in subdivision (c). (§ 667.61, subds. (a) & (d)(1).) Section 667.71 provides for the same sentence for “habitual sexual offenders,” i.e., those having a present conviction and one or more previous convictions for offenses listed in subdivision (c) of section 667.71.
Section 667.61 provides for an indeterminate term of 15 years to life under other circumstances. (§ 667.61, subd. (b).)
Although the two statutes were amended in the same initiative that added section 288.7 to the Penal Code, section 288.7 is not among the listed offenses in either statute’s subdivision (c). This presumably is not mere oversight because section 288.7 provides for its own indeterminate sentences (15 or 25 years to life) for those aggravated forms of oral copulation, sexual penetration, sodomy, or intercourse with younger children.
As a result, defendant and the People are correct that the trial court was not authorized to impose an indeterminate term of 25 years to life, doubled to 50 years to life, for defendant’s conviction of violating section 288.7 (count one). On remand, the trial court shall impose the punishment prescribed in section 288.7.
II
The trial court had initially deemed the enhancements on the four concurrent indeterminate terms to be served concurrently as well. But two weeks later, the court recalled the sentence on its own motion to impose all four enhancements consecutively to the indeterminate terms, for an additional 15 years. It believed that it did not have discretion to sentence concurrently, which was its intention otherwise.
When sentencing pursuant to section 1170.1, only a single enhancement under section 667, subdivision (a) is permitted for the aggregate sentence, based on the language of section 1170.1. (People v. Tassel (1984) 36 Cal.3d 77, 90, overruled on another point in People v. Ewoldt (1994) 7 Cal.4th 380, 401.) The remainder must be stricken. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1163-1164.) However, this principle does not apply when the trial court imposes the ordinarily mandatory consecutive indeterminate sentences under section 667, subdivisions (c)(6) and (e), where each conviction may include the enhancement. (People v. Williams (2004) 34 Cal.4th 397, 403-405 (hereafter Williams).) Where a sentence involves both determinate and indeterminate components under subdivision (e) of section 667, each component may include the enhancement. (People v. Misa (2006) 140 Cal.App.4th 837, 846-847.)
The trial court did not indicate the source of its belief that consecutive terms for all five enhancements were mandatory. Perhaps it relied on language in Williams saying the determinate term for the enhancement “must be consecutive to the minimum term of the indeterminate life sentence....” (Williams, supra, 34 Cal.4th at p. 403.) But Williams involved consecutive indeterminate sentences that each included a 10-year enhancement for two prior convictions. Here, the indeterminate terms are concurrent. While each enhancement must be consecutive to its underlying base term, Williams does not require that they be consecutive to each other.
We therefore agree with defendant and the People that the trial court erred in concluding that the enhancements to counts two, three, and four had to be served consecutively to each other and to the terms imposed on counts one and five and the enhancements thereto.
III
In a sentencing memorandum, defendant asserted the trial court was not obligated to apply section 667.61 and section 667, subdivision (e) cumulatively to his sentence. He invoked the relatively inapposite People v. Fuhrman (1997) 16 Cal.4th 930 (hereafter Fuhrman), and other cases (mostly depublished or disapproved) that either applied the two sentencing provisions cumulatively or refused to do so. (E.g., People v. Ervin (1996) 50 Cal.App.4th 259, 264 [proper to sentence cumulatively with single finding]; People v. Johnson (2002) 96 Cal.App.4th 188, 195-197 [single finding will not allow cumulative application], disapproved in People v. Acosta (2002) 29 Cal.4th 105, 134, fn. 13.) No discussion appears in the record of this case regarding any of the factors in People v. Williams (1998) 17 Cal.4th 148, at page 161, that are pertinent to striking a recidivist finding under section 1385.
Fuhrman held multiple recidivist findings may properly arise out of a single prior proceeding (Fuhrman, supra, 16 Cal.4th at pp. 936, 940), and for sentencings that predated 1996 and did not expressly indicate whether the trial court was aware of its discretion to strike a recidivist finding, the defendants must file a writ of habeas corpus on the issue (id. at pp. 945-946). In a footnote, Fuhrman disapproved of a string of cases to the extent they held it would be unreasonable to presume on a silent record that a trial court was aware of its discretion to strike recidivist findings and remanded on that basis (id. at p. 947).
The parties both construe the sentencing memorandum’s references to Fuhrman as a request to strike the recidivist finding pursuant to section 1385 for purposes of section 667, subdivision (e). We disagree. As the prosecutor recognized in her written sentencing recommendations, “defendant did not raise the issue before the trial court” but, argued in any event, that “the trial court will act properly in not striking the defendant’s prior conviction pursuant to section 1385.”
A court lacks the power to strike the finding under the other two sentencing alternatives. (§ 667.61, subd. (g); § 667.71, subd. (d).)
Defendant contends the record affirmatively reflects the trial court’s misunderstanding of its discretion to strike the recidivist finding on its own motion. He cites the trial court’s remarks at the conclusion of sentencing, stating “this sentencing scheme is one that is mandated by People versus Acosta[, supra, 29 Cal.4th 105], as well as People versus Williams[, supra, 17 Cal.4th 148] and People versus Mesia [sic; we presume referring to People v. Misa, supra, 140 Cal.App.4th 837].” However, this comment simply reflects the structure of the sentence the trial court imposed--the cumulative application of the two sentencing schemes and enhancements for the determinate and indeterminate components. The cited cases do not have any bearing on a court’s authority to strike a recidivist finding. Therefore, the trial court’s reference to them here cannot reasonably be taken as indicating it felt any constraint in exercising this authority. We therefore reject this argument.
Indeed, had the trial court exercised its discretion to strike the recidivist finding, the decision would not survive appellate scrutiny under People v. Williams, supra, 17 Cal.4th at page 161, in light of defendant’s history as a repeat sex offender since he was 17. In 1992, defendant pulled down the pants of a 5 year old and rubbed a 7-year-old’s vagina through her pants on another occasion; in 1996, he had intercourse with a 9 year old; and in 1998, he had intercourse with a 13 year old, resulting in a 6-year prison sentence.
IV
Sections 667.61 and 667.71 are “alternative sentencing schemes.” (People v. McQueen (2008) 160 Cal.App.4th 27, 37 (hereafter McQueen).) “[S]tatutes like section 667.71, which establish section 667.61 as an alternative punishment for an underlying felony based on the fact of the defendant’s status as a recidivist, simply do not invoke application of section 654.” (People v. Johnson, supra, 96 Cal.App.4th at p. 208 [disapproved on another ground in People v. Acosta, supra, 29 Cal.4th at p. 134, fn. 13]; accord, People v. Murphy (2001) 25 Cal.4th 136, 155.)
Thus, defendant is correct that the trial court cited the wrong authority for staying the sentence imposed under section 667.71, as that scheme does not impose the longest prison term (see § 667.61, subd. (f)); indeed, the court was aware of McQueen and intended to follow it, but apparently misspoke in sentencing.
In issuing a new abstract of judgment on remand, the trial court shall cite the correct authority for staying the sentence. (McQueen, supra, 160 Cal.App.4th at pp. 36-37 [Cal. Rules of Court, rule 4.447 applies instead].)
DISPOSITION
The convictions and findings on the enhancements are affirmed. The sentence is vacated, and the matter is remanded to the trial court for resentencing in accordance with this opinion.
We concur: SIMS , J., BUTZ, J.