Opinion
NOT TO BE PUBLISHED
Appeal from Superior Court County of Ventura No. 2003-019875. James P. Cloninger, Judge.
Jerry D. Whitley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, P.J.
Alfonzo Sanchez Mendoza was convicted by jury of five counts of forcible lewd acts on a child (counts 1, 2, 5, 6 & 11: Pen. Code, § 288, subd. (b)(1)), four acts of lewd acts on a child (counts 4, 8, 10 & 13; § 288, subd. (a)), two counts of aggravated sexual assault of a child by oral copulation (counts 3 and 9; § 269, subd. (a)(4)), and two counts of aggravated sexual assault of a child by rape (counts 7 & 12; § 269, subd. (a)(1)) with special findings that he had substantial sexual conduct with a victim under the age of 14 (§ 1203.066, subd. (a)(8)). The trial court sentenced appellant to 60 years to life (i.e., 4 consecutive 15-year-to-life terms) plus 30 years state prison. We affirm.
All statutory references are to the Penal Code.
Consecutive Indeterminate Terms
Appellant sexually molested his stepdaughter between the ages of six and eleven. On at least six occasions he forced her to have sexual intercourse and, on another six occasions, forced her to orally copulate him.
Appellant claims the trial court erred in imposing four consecutive 15-year-to-life terms on the aggravated sexual assault counts (i.e., the section 269 counts) pursuant to section 667.6, subdivision (d). When appellant was sentenced, former section 667.6 subdivision (d) provided that full, separate, and consecutive terms be imposed for rape or oral copulation, but did not list section 269 aggravated sexual assault of a minor as a predicate offense. Citing People v. Jiminez (2000) 80 Cal.App.4th 286 (Jiminez), the trial court found that section 667.6, subdivision (d) applied and required full consecutive sentences on the aggravated sexual assault convictions.
Appellant was sentenced July 27, 2006, about two months before the Legislature amended section 269 to add subdivision (c) which provides: "The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve . . . the same victim on separate occasions, as defined in subdivision (d) of Section 667.6." (Stats 2006, c. 337 (S.B. 1128), § 6, eff. Sept. 20, 2006.)
Appellant argues that Jiminez was wrongfully decided.
In Jiminez, the defendant was convicted of two counts of forcibly sodomizing a child under the age of 14 years who was more than 10 years younger than defendant. (§ 269 subd. (a)(3).) The trial court sentenced defendant to two consecutive terms of 15 years to life pursuant to section 667.6, subdivision (d). On appeal, defendant argued that by enacting section 269, the Legislature adopted a separate and more lenient sentencing scheme for defendants convicted of forcible sodomy of a child under the age of 14. (Id., at p. 290.)
The Court of Appeal held that section 667.6, subdivision (d) and section 269 "are cumulative, not alternative, to each other." (Id., at p. 292.) The court explained that sodomy "is one of the predicate offenses of section 269 . . . . When the jury found defendant had violated section 269 under the circumstances presented here, it necessarily found he had violated section 286 [sodomy] and he had done so by force or fear. Thus, the factual predicate necessary to apply section 667.6, subdivision (d) was proved beyond a reasonable doubt." (Id., at p. 291.)
We adopt the same reasoning because the crimes listed in section 269 are also listed in section 667.6. (See People v. Glass (2004) 114 Cal.App.4th 1032, 1037.) Appellant committed the rapes and acts of forcible oral copulation on separate occasions. When the jury returned guilty verdicts on the section 269 counts, it necessarily found that appellant committed rape and forcible oral copulation which are predicate offenses subject to the section 667.6, subdivision (d) sentencing scheme. (See CALJIC 10.55.)
Citing an Assembly Committee on Public Safety bill analysis of section 269, the court in People v. Glass, supra, 114 Cal.App.4th at page 1037 noted that the Legislature in amending section 269 in 1994, "anticipated that a defendant convicted of violating section 269 would be subject to the sentencing requirements of section 667.6, even though section 269 was not listed in section 667.6."
"[Appellant] does not proffer any decisional or historical support for his assertion that by enacting section 269 the Legislature created a separate sentencing scheme for violent sexual offenders who prey on a particular class of victims. He fails to account for the fact that characterization of section 269 as such would work to the advantage of pedophiles by exempting them from the additional penalties that would ordinarily result when they commit multiple offenses or prey upon more than one victim." (Jiminez, supra, 80 Cal.App.4th at pp. 291-292.)
The Jiminez court concluded that defendant "was rightly subject to enhanced penalties for two different reasons, the first being the disparity in age and the second being the multiplicity of offenses. (Id., at p. 291-292.) In sentencing appellant, the trial court cited a third additional factor: "the crimes here against this little girl involved violence and the threat of bodily harm. . . ."
The trial court did not err in sentencing appellant to four consecutive 15-year-to-life terms on counts 3, 7, 9 and 12 for aggravated sexual assault of a minor.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.