Opinion
F061133 Super. Ct. No. F09903105
08-08-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY SILVANO MENDOZA, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Detjen, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Johnny Silvano Mendoza, pled no contest to nonforcible lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)) and admitted a serious felony enhancement (§ 667, subd. (a)(1)), a prior conviction enhancement pursuant to section 667.51, subdivision (a), allegations that he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)), and allegations that he had a prior conviction for an offense listed in section 667.61, subdivisions (a) through (d).
Unless otherwise indicated, all further statutory references are to the Penal Code.
On appeal, Mendoza contends the court erred by its failure to strike the section 667.51 prior conviction enhancement. We will find merit to this contention and strike this enhancement. In all other respects, we will affirm.
FACTS
On May 18, 2009, Fresno police officers interviewed a nine-year-old girl who reported that Mendoza sexually assaulted her on several occasions. During a police interview, Mendoza admitted inappropriately touching the victim approximately 10 times.
On December 9, 2009, the district attorney filed an information charging Mendoza with three counts of lewd and lascivious conduct which a child under the age of 14. The information also alleged a serious felony conviction pursuant to section 667, subdivision (a)(1), a prior conviction enhancement pursuant to sections 667.51, subdivision (a) and 667.6, subdivision (a), a prior conviction within the meaning of the three strikes law, and a prior conviction for an offense listed in section 667.61, subdivisions (a) through (d).
The enhancements, three strike allegations, and section 667.61 allegations were all based on Mendoza's 1983 conviction for violating section 288, subdivision (a).
On August 25, 2010, Mendoza entered a negotiated plea which provided that, in exchange for his plea, the court would sentence him to a stipulated term of 55 years to life and dismiss the remaining counts and the section 667.6, subdivision (a) prior conviction enhancement.
On October 7, 2010, the court sentenced Mendoza pursuant to section 667.61 and the three strikes law to the stipulated term of 55 years to life as follows: an indeterminate term of 25 years to life on the substantive offense, doubled to 50 years because of Mendoza's prior strike conviction, and a five-year serious felony enhancement. Pursuant to section 654, the court stayed an additional five-year prior conviction enhancement term authorized by section 667.51, subdivision (a).
The court issued two abstracts of judgment: one for indeterminate sentences (Judicial Council Form No. CR-292) that lists the indeterminate sentence of 50 years to life the court imposed on count 1, and one for determinate sentences (Judicial Council Form No. CR-290.1) that lists the five-year term the court imposed on Mendoza's serious felony enhancement. However, in section 8 of the abstract of judgment for indeterminate sentences, the court did not check the box indicating that Mendoza was sentenced pursuant to section 667.61. Further, since section 3 of this abstract of judgment provides a place for the court to list enhancements for prior convictions such as serious felony enhancements, the court should have listed Mendoza's serious felony enhancement in section 3 instead of separately in an abstract of judgment for determinate sentences.
DISCUSSION
Section 667.51 provides:
"(a) Any person who is convicted of violating Section 288 or 288.5 shall receive a five-year enhancement for a prior conviction of an offense specified in subdivision (b).
"(b) Section ... 288, ..., or any offense committed in another jurisdiction that includes all of the elements of any of the offenses specified in this subdivision."
Mendoza contends the court erred when it purported to stay the five-year section 667.51 enhancement pursuant to section 654. Respondent concedes that the court was not authorized pursuant to section 654 to stay the prior conviction enhancement. However, respondent cites People v. Lopez (2004) 119 Cal.App.4th 355 (Lopez) to contend that California Rules of Court, rule 4.447 authorized the court to stay the enhancement. We will find that the court erred when it stayed the section 667.51 prior conviction enhancement.
All further references to rules refer to the California Rules of Court.
"Ordinarily, an enhancement must be either imposed or stricken 'in furtherance of justice' under ... section 1385. [Citations.] The trial court has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice. [Citations.]" (Lopez, supra, 119 Cal.App.4th at p. 364.)
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.... "
"If ... a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.]" (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) Section 654, however, does not apply to an enhancement (such as a prior prison term enhancement) that is based on the defendant's status, as opposed to the defendant's conduct. (People v. Coronado (1995) 12 Cal.4th 145, 156-159.) By its terms, section 654 prohibits multiple punishment for a single "act or omission." Because a status-based enhancement "does not implicate multiple punishment of an act or omission, section 654 is inapplicable." (People v. Coronado, supra, 12 Cal.4th at pp. 156-158.) Accordingly, we agree with the parties that section 654 did not authorize the court to stay the section 667.51 prior conviction enhancement.
Nor did rule 4.447 authorize the court to stay the prior conviction enhancement. This rule provides:
"No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant's service of the portion of the sentence not stayed." (Italics added.)
In Lopez, supra, 119 Cal.App.4th 355 a jury convicted the defendant of two counts of nonforcible lewd and lascivious conduct with a child under the age of 14, two counts of annoying or molesting a child (§ 647.6, subd. (c)(2)), and one count of using pornography to seduce a minor (§ 288.2, subd. (a)). The defendant also admitted a multiple-victim special circumstance for purposes of the one strike law (§ 667.61) and a prior sexual offense for purposes of the habitual sexual offender law (§ 667.71), the three strikes law, and a serious felony enhancement. Thereafter, the trial court sentenced the defendant pursuant to the habitual offender law to a term of 61 years to life. The court, however, did not dismiss or strike the finding under the one strike law or impose sentence pursuant to that sentencing scheme. (Lopez, supra, at pp. 358-359.)
On appeal, the defendant contended that the trial court should have stricken or dismissed the true finding on the multiple-victim special circumstance. (Lopez, supra, 119 Cal.App.4th at p. 360.) The Lopez court disagreed and held that striking the multiple-victim circumstance would violate subdivision (f) of section 667.61 which expressly provided that, '"Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e)."' (Lopez, supra, at p. 361.) The Lopez court also cited rule 4.447 to conclude that the proper procedure under the rule would have been to impose punishment under the one strike law and then stay it. (Lopez, supra, at pp. 355-366.) In so doing, the court stated, "[R]ule 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." (Lopez, supra, at p. 365, italics added.)
Here, the imposition of a term for the 667.51 enhancement is not prohibited by law and imposing it would not exceed any limitation on the imposition of multiple enhancements. Therefore, rule 4.447 did not authorize the court to stay the section 667.51 enhancement. Further, since neither this rule nor section 654 authorized the court to stay the section 667.51 enhancement, we conclude that the court erred by its failure to strike it.
DISPOSITION
The enhancement and stayed term imposed pursuant to section 667.51 is stricken. The trial court is directed to prepare only one abstract of judgment, i.e., an abstract of judgment for indeterminate sentences, which is consistent with this opinion and that incorporates the information contained in the abstract of judgment for determinate sentences the court issued in this matter. The court should also ensure that the abstract of judgment indicates in section 8 that Mendoza was sentenced pursuant to section 667.61 as well as pursuant to section 667, subdivisions (b) through (i). As modified, the judgment is affirmed.