Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County of Los Angeles No. TA076715 Gary R. Hahn, Jr., Judge.
Alan Stern, 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, Lance E. Winters and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
The Los Angeles County District Attorney charged defendant and appellant Daniel Sanchez (defendant) with 71 counts arising from the battery and sexual assault of eight women during a 21-month period. The trial court convicted defendant on a majority of the counts alleged and sentenced him to an aggregate term of 616 years, four months, plus a consecutive life term and eight consecutive 25 years to life terms.
On appeal, defendant raises four issues relating to his sentence: (i) there was insufficient evidence to support the trial court’s finding that defendant used a deadly weapon or firearm in the commission of counts 13 through 17 within the meaning of Penal Code section 12022.3 ; (ii) defendant’s sentence of 25 years to life on count 13 should be reduced to 15 years to life because only one of the two special circumstances charged under section 667.61, subdivision (e) was established by the evidence; (iii) the life term imposed on count 44, kidnapping to commit a sexual offense, should be stayed under section 654 in light of the sentences imposed on the sexual offenses committed against the same victim in counts 45 through 47; and (iv) the minutes of the sentencing hearing and the abstract of judgment contain errors concerning defendant’s sentence that must be corrected.
All further statutory references are to the Penal Code unless otherwise stated.
We hold that (i) substantial evidence supported the trial court’s finding that defendant used a deadly weapon in the commission of counts 13 through 17 within the meaning of section 12022.3; (ii) the trial court correctly imposed a term of 25 years to life on count 13, as the evidence showed that both of the special circumstances alleged under section 667.61, subdivision (e) had been established; (iii) the life term imposed on count 44 should be stayed pursuant to section 654, but an additional nine-year term should be imposed on count 46 pursuant to section 667.8, subdivision (a); and (iv) the minutes of the sentencing hearing and the abstract of judgment should be corrected to address the errors raised by defendant and this court.
The factual and procedural background relevant to each of the issues raised on appeal is set forth at the beginning of the discussion of each issue. This section provides a general factual and procedural summary as context for the ensuing legal discussion.
The evidence at trial showed that defendant battered and sexually assaulted eight women between January 2002 and October 2003. In some of the cases, defendant stalked the victims and attacked them in or near their homes. In most of the cases, defendant punched and choked the victims into submission. He used a deadly weapon in four of the cases and threatened to use a deadly weapon in every case. The victim’s ranged in age from 11 to 40, but the majority of the victims were minors or young women, and two of the victims had children.
The operative amended information charged defendant with 71 counts. Defendant waived his right to a jury trial and, following a bench trial, the trial court found defendant not guilty on and dismissed pursuant to section 1385 counts 3 through 10, 18, 48 through 51, 55 through 58, 67 through 69, and 80. But the trial court found defendant guilty on counts 13 through 39, 42 through 47, 52 through 54, 59 through 66, and 70 through 79. As noted above, the trial court sentenced defendant to an aggregate term of 616 years, 4 months, plus a consecutive life term and eight consecutive terms of 25 years to life terms.
The minute order for the sentencing hearing indicates that defendant was found guilty on counts 68, 69, and 80, but the reporter’s transcript confirms that the trial court acquitted defendant on and dismissed those counts. The abstract of judgment does not reflect convictions and sentences on counts 68 and 69 but, as discussed below, it inaccurately reflects a conviction and sentence on count 80.
DISCUSSION
A. Section 12022.3 Weapon or Firearm Use Allegation
1. Background
In counts 13 and 14, the District Attorney charged defendant with forcible oral copulation with victim Michelle A. in violation of section 288a, subdivision (c)(2). In counts 15 and 16, the District Attorney charged defendant with forcible rape in violation of section 261, subdivision (a)(2) and, in count 17, with attempted sodomy by force in violation of sections 664 and 286, subdivision (c)(2). The District Attorney further alleged that, as to counts 13 through 17, the defendant personally used a handgun within the meaning of sections 1203.06, subdivision (a)(1), 12022.5, subdivision (a), and 12022.53, subdivision (b). The District Attorney also alleged as to those counts that defendant used a deadly weapon or firearm within the meaning of section 12022.3.
Section 12022.3, subdivision (a) states, “For each violation of Section 220 involving a specified sexual offense, or for each violation or attempted violation of Section 261, 262, 264.1, 286, 288, 288a, or 289, and in addition to the sentence provided, any person shall receive the following: (a) A 3-, 4-, or 10-year enhancement if the person uses a firearm or a deadly weapon in the commission of the violation.”
At trial, Michelle A. testified that as she was walking to a liquor store by herself at 7:00 p.m., defendant grabbed her on the street and pulled her to the side of a house. As he pulled Michelle A. toward that location, defendant told her “not to scream because he had a gun [and] to do what he said.” She did not see the gun, but complied when defendant ordered her to orally copulate him because he threatened to kill her and she “felt something hard” on the side of her head. She was forced to orally copulate him and to engage in other sex acts.
During oral argument on counts 13 through 17, the prosecutor made the following comments concerning the evidence in support of the section 12022.3 deadly weapon or firearm use allegation. “[The Court]: Counts 13 through 17. Now, Michelle A. said she never saw a gun. So you have a gun allegation in there. [The prosecutor]: But I’d like to make an argument as to 12022.3(A), which is sex crime with a deadly weapon or gun. [¶]... [¶] As to Michelle A., specifically counts 13 through 17, in regards to the deadly weapon, the victim specifically says after the defendant grabbed her and dragged her from behind and took her to the side of the location, she felt a hard object against her head; and as the hard object was pressed against her head, the defendant said he had a gun. [¶] At minimum, the people feel that that’s sufficient evidence to indicate that some sort of weapon was used. We’re not certain what it was. [¶] And 12022.3(A) specifically says either a firearm or a deadly weapon was used.”
In response, defendant’s trial attorney argued that “there is an inference the court could make about there being a weapon. However, there is no testimony that her head was intentionally pushed against the hard object... to show her... there’s a gun or a weapon there in [defendant’s] pocket. She just happened to feel it when she was being abused in the way she was being abused in that moment. [¶] And the fact that he said that he had a gun is really all there is. I don’t think that that’s enough to find him guilty beyond a reasonable doubt of having a gun and using it in the course of that crime.”
Following arguments, the trial court ruled as follows: “I’m going to find the people have proven beyond a reasonable doubt counts 13, 14, 15, 16, and 17. [¶] I do believe there is insufficient evidence to show [the truth of the allegations under sections] 1203.06(A)(1), 12022.5(A)(1), 12022.53(B), involving a gun. [¶] I do believe [the prosecutor] is right as far as any weapon, the [section] 12022.3(A) [allegation] because at the time [defendant] used it, he said, ‘I have a gun’; she felt something cold on her head, didn’t know what it was. It could have been a weapon or a gun. So I think [the prosecution] has proven that [allegation true] beyond a reasonable doubt.”
2. Contentions
Defendant challenges the sufficiency of the evidence in support of the trial court’s true finding on the section 12022.3 allegation. According to defendant, Michelle A. testified only that defendant said he had a gun and that she subsequently “felt something hard” against the side of her head. Defendant argues that testimony was insufficient to support a rational inference that he used a firearm or deadly weapon during the commission of the sexual offenses charged in counts 13 through 17. Citing to People v. Marbruch (1996) 13 Cal.4th 1001, 1007 and People v. Chambers (1972) 7 Cal.3d 666, 672, defendant argues that the term “use” in section 12022.3 requires something more than a showing that defendant committed the offense while armed; it requires conduct that produces fear of harm or force by means or display of a firearm in aiding in the commission of one of the specified offenses.
3. Standard of Review
Defendant’s challenge to the sufficiency of the evidence is reviewed under a substantial evidence standard. “The [substantial evidence] standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560]; People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) If the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103].)” (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
4. Substantial Evidence
Michelle A. testified that defendant grabbed her on the street and pulled her to a secluded location between two houses. While pulling her, defendant told Michelle A. he had a gun and he coupled that implicit threat with an explicit threat that he would kill her if she did not comply with his demands. He then ordered Michelle A. to orally copulate him and, as she complied, she “felt something hard” on the side of her head.
When viewed in a light most favorable to the trial court’s finding, Michelle A.’s testimony supports a rational inference that defendant used a firearm to aid in the commission of the sexual offenses charged in counts 13 through 17. As the court in People v. Dominguez (1995) 38 Cal.App.4th 410 (Dominguez) explained concerning a similarly worded statute, “The evidence is sufficient to prove the use of a firearm where there is some type of display of the weapon, coupled with a threat to use it which produces fear of harm in the victim. ‘... [A] firearm is displayed when, by sensory perception, the victim is made aware of its presence. Once displayed in such fashion, the threat of use sufficient to produce fear of harm becomes a use of that firearm proscribed by Penal Code sections 12022.5....’ (People v. Jacobs [(1987)] 193 Cal.App.3d [375, ] 381.) There is no requirement the victim actually see the gun. (Id. at p. 381, fn. 3.)” (Dominguez, supra, 38 Cal.App.4th at p. 421, italics added.) Applying that formulation of the use requirement in section 12022.5, the Dominguez court concluded that the “evidence supported the firearm use. The threat here was to ‘kill’ the victim, not merely to hurt him. Under these circumstances, the sensation of the cold steel cylindrical object at the back of the victim’s neck, coupled with the threats to ‘kill’ and the resultant fear of harm, was sufficient evidence to support a jury finding of the use of a firearm [or deadly weapon]. (People v. Jacobs, supra, 193 Cal.App.3d at p. 382; People v. Green [(1985)] 166 Cal.App.3d [514, ] 517.)” (Dominguez, supra, 38 Cal.App.4th at p. 422.)
California courts interpreting section 12022.3 have relied upon cases construing an earlier, similarly worded statute, section 12022.5. “‘Where a statute is framed in language of an earlier enactment on the same or an analogous subject, and the enactment has been judicially construed, the Legislature is presumed to have adopted that construction. [Citation.]’” (People v. Masbruch, supra, 13 Cal.4th at p.1007.)
Here, as in Dominguez, supra, 38 Cal.App.4th 410, although Michelle A. did not see a gun, defendant told her he had one and threatened to kill her. She then “felt something hard” on the side of her head, i.e., defendant made her aware of the presence of a gun or weapon by “sensory perception.” That display of a gun or weapon by sensory perception, together with the threat to kill her, was sufficient to cause Michelle A. to fear for her life and constituted use of a firearm in the commission of counts 13 through 17 within the meaning of section 12022.3.
B. Special Circumstances
1. Background
As to count 13, forcible oral copulation in violation of section 288a, subdivision (c)(2), the District Attorney alleged that, within the meaning of section 667.61, subdivisions (a), (b), and (e), “the following circumstances apply: (5) MULTIPLE VICTIMS, (4) HANDGUN.” As to that allegation, the trial court made the following comments and findings: “I do believe there’s insufficient evidence to show [the truth of the allegations under sections] 1203.06(A)(1), 12022.5(A)(1), 12022.53(B), involving a gun. [¶] I do believe [the prosecutor] is right as far as any weapon, the [section] 12022.3(A) [allegation], because at the time he used it, he said, ‘I have a gun’; she felt something cold on her head, didn’t know what it was. It could have been a weapon or a gun. So I think she has proven that [allegation true] beyond a reasonable doubt. And certainly multiple victims. [¶] I’m going to find 667.61(A), (B), and (E) has been proven as far as multiple victims are concerned. [¶] But the handgun, you’re right, [defense counsel], there’s no evidence as to a handgun.”
2. Contentions
Defendant contends that, as to count 13, the information states two special circumstances under section 667.61, subdivision (e): defendant committed the offense against multiple victims and personally used a handgun in the commission of the offense. As to use of a handgun, defendant argues that the trial court specifically found that the evidence did not support the existence of that special circumstance. Therefore, according to defendant, the trial court erred in imposing a 25 years to life sentence because that sentence is only authorized under section 667.61, subdivision (a) if two of the enumerated special circumstances in subdivision (e) are shown to exist. If only the multiple victim special circumstance was established by the evidence, defendant argues that he should have been sentenced to 15 years to life under section 667.61, subdivision (b).
3. The One Strike Law
“Approximately six months after the Legislature enacted the ‘Three Strikes’ law as urgency legislation, it adopted section 667.61, the One Strike law. (People v. Rayford (1994) 9 Cal.4th 1, 8 [36 Cal.Rptr.2d 317, 884 P.2d 1369]; People v. Ervin (1996) 50 Cal.App.4th 259, 264 [57 Cal.Rptr.2d 728].) This section sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force, [footnote omitted] including rape, foreign object penetration, sodomy, and oral copulation. [Footnote.] The section applies if the defendant has previously been convicted of one of seven specified offenses, or if the current offense was committed under one or more specified circumstances. Subdivision (a) provides that if defendant has previously been convicted of an offense enumerated in subdivision (c), or if two of the circumstances specified in subdivision (e) apply to the current offenses, an indeterminate term of 25 years to life shall be imposed. Subdivision (b) provides that if one of the circumstances specified in subdivision (e) applies, an indeterminate term of 15 years to life shall be imposed. Subdivision (i) requires the facts of any specified circumstance to be pled and proved to the trier of fact or admitted by the defendant in open court. Subdivision (f) provides that if only the minimum number of qualifying circumstances required for One Strike sentencing treatment have been pled and proved, they must be used as the basis for imposing the One Strike term rather than to impose lesser enhancements or punishment under any other law. (§ 667.61.)” (People v. Mancebo (2002) 27 Cal.4th 735, 741-742, italics added.)
At the time of defendant’s offenses, section 667.61, subdivision (e) enumerated eight special circumstances warranting one strike sentencing: “(e) The following circumstances shall apply to the offenses specified in subdivision (c): (1) Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5. (2) Except as provided in paragraph (4) of subdivision (d), the defendant committed the present offense during the commission of a burglary in violation of Section 459. (3) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8. (4) The defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense in violation of Section 12022, 12022.3, 12022.5, or 12022.53. (5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim. (6) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense. (7) The defendant administered a controlled substance to the victim in the commission of the present offense in violation of Section 12022.75. (8) The defendant committed the present offense in violation of Section 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 288a, and, in the commission of that offense, any person committed any act described in paragraph (1), (2), (3), (5), or (6) of this subdivision.” (Italics added.)
4. Analysis
As discussed above, the amended information alleges that two of the special circumstances enumerated in section 667.61, subdivision (e) applied to defendant’s commission of count 13. Each alleged special circumstance is referenced by a short description, i.e., “multiple victims” and “handgun, ” and is also identified by the numerical designation for that circumstance as used in subdivision (e). Thus, because the amended information specifically referenced section 667.61, subdivision (e)(4), defendant was put on notice that, as to count 13, the District Attorney was alleging that defendant personally used either a deadly or dangerous weapon in the commission of count 13 or he personally used a firearm.
As the court in People v. Mancebo, supra, 27 Cal.4th at pages 754-755, observed, “the express pleading requirements of section 667.61, subdivisions (f) and (i), read together, require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing. Adequate notice can be conveyed by a reference to the description of the qualifying circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with a reference to section 667.61 or, more specifically, 667.61, subdivision (e), or by reference to its specific numerical designation under subdivision (e), or some combination thereof. We do not purport to choose among them.” Here, the information made reference to the specific numerical designation in subdivision (e) for the deadly weapon or firearm use special circumstance-(4)-and therefore put defendant on notice that his sentence could be enhanced if that circumstance was shown to exist.
The trial court expressly found the allegation under section 12022.3 to be true, i.e., defendant personally used either “a weapon or gun” in the commission of count 13. That finding, in turn, established that the special circumstance in numerical designation (4) under subdivision (e) applied to defendant’s commission of count 13. Because the trial court also found that defendant committed the offense alleged in count 13 against multiple victims, both of the special circumstances alleged under section 667.61 were found to apply to count 13. As a result, the trial court properly sentenced defendant on count 13 to 25 years to life under section 667.61, subdivision (a).
Defendant argues that the use of the descriptive term “handgun” in the special circumstance allegation limited that allegation to the use of that type of weapon only, and did not put him on notice that his sentence on count 13 could be enhanced if the trial court found, as it did here, that he used a deadly weapon or firearm, but did not find specifically that he used a handgun. Defendant’s construction of the special circumstances allegation is too narrow. As noted, that allegation specifically references section 667.61, subdivision (e)(4), which section uses the broad term “dangerous or deadly weapon or firearm” and cross-references section 12022.3 which also uses the term “deadly weapon or firearm.” Therefore, the special circumstances allegation can be fairly read to include, not just the use of a handgun, but also the use of any deadly weapon or firearm.
C. Stay of Sentence
Defendant contends, and the Attorney General agrees, that the trial court erred when, in addition to imposing sentences on the sexual offenses committed against Diane G., as alleged in counts 45 through 47, the court imposed a life sentence on count 44, kidnapping for sexual purposes. According to defendant, section 654 prohibited execution of sentence on count 44 because that sentence constituted multiple punishment for the same act or omission.
Based on defendant’s sexual assault on Diane G., the District Attorney charged him in count 42 with assault by means likely to cause great bodily injury in violation of section 245, subdivision (a)(1); in count 43 with kidnapping in violation of section 207, subdivision (a); in count 44 with kidnapping to commit rape in violation of section 209, subdivision (b)(i); in count 45 with sexual battery by restraint in violation of section 243.4, subdivision (a); in count 46 with sexual penetration by a foreign object in violation of section 289, subdivision (a)(1); and in count 47 with forcible rape in violation of section 261, subdivision (a)(2).
At the sentencing hearing, the trial court stayed execution of sentence on counts 42 and 43, assault and kidnapping, but imposed and executed a life sentence on count 44, kidnapping to commit rape. The trial court also imposed and executed sentences on counts 45, sexual battery by restraint, 46, sexual penetration with a foreign object, and 47, forcible rape.
The abstract of judgment mislabels the offense in count 45 as “kidnapping to commit crime, ” but correctly refers to section 243.4, subdivision (a). As discussed below, the mislabeling should be corrected on remand.
Section 654, subdivision (a) provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
In People v. Latimer (1993) 5 Cal.4th 1203, the Supreme Court explained that although kidnapping and rape are separate acts, when the sole purpose of the kidnapping is to commit the rape, section 654 bars imposition of sentence on the kidnapping count if the defendant is also being punished for the rape offense. “It could be argued that defendant had two intents: (1) to drive the victim against her will to an isolated area, and (2) to rape her. Cases applying the Neal [v.State of California (1960) 55 Cal.2d 11] rule, however, make clear that multiple punishment for both the rapes and the kidnapping is prohibited under the circumstances of this case. Although the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes. ‘Since the kidnapping was for the purpose of committing the sexual offenses and [defendant] has been punished for each of the sexual offenses, ’ section 654 bars execution of sentence on the kidnapping count. (People v. Flores (1987) 193 Cal.App.3d 915, 921-922 [238 Cal.Rptr. 656] [noting, however, the possible imposition of the three-year enhancement of Pen. Code, § 667.8, subd. (a)]; see also cases cited therein and People v. Hernandez [(1988)] 46 Cal.3d [194, ] 203.)” (People v. Latimer, supra, 5 Cal.4th at pp. 1216-1217.)
Here, the trial court correctly stayed execution of sentence on counts 42 and 43 for the assault and kidnapping offenses against Diane G., but nevertheless imposed and executed sentence on count 44 for the kidnapping to commit rape offense against her. Under Latimer, supra, 5 Cal.4th 1203, the trial court should have also stayed execution of sentence on count 44 pursuant to section 654, because the kidnapping of Diane G was solely for the purpose of committing the sexual offenses charged in counts 45 through 47 on which the trial court imposed and executed sentences.
The parties also agree that the enhancement under section 667.8, which provides for additional punishment if a sexual offense is committed by kidnapping, should have been imposed on count 46. Because the record reflects that the section 667.8 enhancement was alleged and proven, the sentence on that count should have been increased by an additional 9-year term.
D. Correction of Sentencing Minutes and Abstract
1. Defendant’s Sentencing Contentions
Defendant contends, and the Attorney General agrees, that there are errors in the minutes of the sentencing hearing and the abstract of judgment that must be corrected. We agree. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
The reporter’s transcript reflects that the trial court found defendant not guilty on count 80. Nevertheless, the minutes of the sentencing hearing and the abstract of judgment both reflect that the trial court found defendant guilty on count 80. On remand, the trial court should correct those documents to reflect that defendant was found not guilty on count 80.
The reporter’s transcript also reflects that the trial court imposed a one-third the middle term sentence of 1 year on count 77, plus an additional 10-year term for gun use pursuant to section 12022.53, subdivision (b), for an aggregate sentence of 11 years. Both the minutes and the abstract, however, reflect that the trial court imposed an 11-year sentence on count 77, plus a 10-year sentence enhancement pursuant to section 12022.53, subdivision (b), for an aggregate sentence of 21 years. On remand, the trial court should correct those documents to reflect a sentence on count 77 of one-third the middle term, or 1 year, plus 10 additional years pursuant to section 12022.53, subdivision (b), for an aggregate sentence of 11 years on count 77.
2. Other Sentencing Issues
In addition to the sentencing issues raised by defendant, we raised several other sentencing issues that we asked the parties to address by letter brief. We have reviewed the parties’ letter briefs and resolve these additional sentencing issues as follows:
First, the trial court imposed $1,200 in section 1465.8, subdivision (a)(1) court security fees on the erroneous assumption defendant was convicted of 60 counts. But, defendant was convicted of only 48 counts. At the time the trial court sentenced defendant in April 2009, section 1465.8 required a $20 court security fee for each count. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328.) Therefore, as the parties acknowledge, the correct amount of the section 1465.8, subdivision (a)(1) court security fees is $960. The sentencing minutes and the abstract of judgment should be corrected to reflect that amount.
Second, the trial court imposed $1,800 in Government Code section 70373, subdivision (a) court construction assessments, again on the erroneous assumption that defendant was convicted on 60 counts. Under Government Code section 70373, subdivision (a), the amount of the court construction assessment for each conviction is $30. Because defendant was convicted of only 48 counts, the correct amount of Government Code section 70373, subdivision (a) court construction assessments is $1,440. The sentencing minutes and the abstract of judgment should be corrected to reflect that amount.
Third, the abstract of judgment states defendant was sentenced because he sustained prior serious felony convictions, purportedly pursuant to sections 667.61, subdivisions (a) and (d)(4) [10 years], 667, subdivisions (a) and (d)(4) [10 years], and 667.71, subdivisions (a) and (d)(4) [10 years]. But, the August 12, 2008, amended information contains no prior conviction allegations. Moreover, the oral pronouncement of judgment does not contain any sentence based on any prior serious felony convictions. As the parties acknowledge, the 30-year sentence for prior convictions must be stricken from the abstract of judgment.
Fourth, as to count 37, defendant was convicted of rape and the trial court found the section 12022.8 bodily injury and section 667.61, subdivisions (a), (b), and (e) sexual assault allegations to be true. But no sentences were imposed based on those findings. The trial court had a duty to impose sentence in accord with law. (§ 12; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589; People v. Floyd P. (1988) 198 Cal.App.3d 608, 612; People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 537, disapproved on another point in People v. Norrell (1996) 13 Cal.4th 1, 7; People v. Santana (1986) 182 Cal.App.3d 185, 190-191.) Accordingly, the trial court is directed to select and impose sentences on the section 12022.8, subdivision (a) bodily injury and section 667.61, subdivisions (a), (b) and (e) sexual assault findings as to count 37.
Fifth, as to count 45, defendant was convicted of sexual battery by restraint in violation of section 243.4, subdivision (a) and the section 12022.7, subdivision (a) great bodily injury allegation was found to be true. But no sentence was orally imposed as to count 45. The abstract of judgment states that sentence was imposed, but that is incorrect. The abstract of judgment may not add to the orally imposed judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 14, disapproved on another point in People v. Karaman (1992) 4 Cal.4th 335, 345, fn. 11.) The trial court is directed to orally pronounce a sentence on count 45 and accurately reflect that sentence in the abstract of judgment.
Sixth, counts 19-20, 25-26, 33, 34, 42-43, 45, 52, 59 and 70, were stayed pursuant to section 654, subdivision (a). But the trial court did not impose any sentence or select a term for these stayed counts. The trial court was obligated to do so. (People v. Pearson (1986) 42 Cal.3d 351, 359-361; People v Alford (2010) 180 Cal.App.4th 1463, 1472.) Accordingly, in addition to count 45, the trial court is directed to select and impose a term for each of these other counts.
Seventh, the trial court failed to impose or strike enhancements pursuant to section 12022.5, subdivision (a), section 12022.7, subdivision (a), or section 12022.8, subdivision (a) as to specific counts. The trial court was jurisdictionally obligated to strike or impose sentences on those strikeable enhancements. (People v. Sok (2010) 181 Cal.App.4th 88, 95; People v. Bradley (1998) 64 Cal.App.4th 386, 390-391.) The counts on which the trial court failed to strike or impose sentence enhancements are counts 13, 36, 38, and 44. Accordingly, the trial court is directed to impose the enhancements or strike them, pursuant to section 1385, subdivision (a), as to those counts.
DISPOSITION
The judgment is affirmed, but the matter is remanded to the trial court with instructions to stay the sentence imposed on count 44 and to impose an additional sentence on count 46 of 9 years pursuant to section 667.8, subdivision (a). The abstract of judgment should be corrected to reflect these changes in the sentences on counts 44 and 46. The sentencing minutes and the abstract of judgment should also be corrected to reflect that defendant was found not guilty on count 80 and sentenced on count 77 to a term of one-third the middle term, or 1 year, plus an additional sentence of 10 years pursuant to section 12022.53, subdivision (b), for an aggregate sentence of 11 years.
In addition, the sentencing minutes and the abstract of judgment should be corrected to reflect the imposition of a $960 court security fee under section 1465.8 and a $1,440 court construction assessment pursuant to Government Code section 70373, subdivision (a). The abstract should also be corrected by striking the 30-year sentence for prior convictions. The trial court is further ordered to select and impose sentences on count 37 based on the true findings on the section 12022.8, subdivision (a) bodily injury and the section 667.61, subdivisions (a), (b), and (e) sexual assault allegations. The trial court must orally pronounce a sentence on count 45, accurately reflect that sentence in the abstract of judgment, and select and impose sentences on counts 19, 20, 25, 26, 33, 34, 42, 43, 52, 59, and 70 as to which sentence was stayed pursuant to section 654. The trial court is further directed to impose or strike sentence enhancements pursuant to sections 12022.5, subdivision (a), 12022.7, subdivision (a), and 12022.8, subdivision (a) on counts 13, 36, 38, and 44.
The trial court shall personally supervise the record corrections required by this opinion.
We concur: TURNER, P. J., KRIEGLER, J.