Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF021987, Sherrill A. Ellsworth, Judge.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Jose Daniel Minjarez was convicted by a jury of three counts of committing a lewd act upon a child 14 or 15 years of age (counts 1-3; victim 1; Pen. Code, § 288, subd. (c)), and five counts of committing a lewd act upon a child under 14 years of age (counts 4-6; victim 2; counts 7-8; victim 3; § 288, subd. (a)). The jury also found true the allegation as to counts 4 through 8 that defendant committed a lewd act upon more than one victim under 14 years of age. (§ 667.61, subd. (e)(5).) Defendant contends, and the People agree, that the trial court erred in imposing both a determinate and an indeterminate sentence for counts 4 through 8. We agree in part and reverse with instructions to re sentence.
All further statutory references are to the Penal Code.
BACKGROUND
At sentencing, the trial court set count 4 as the principle count and imposed the midterm of six years. For counts 1 through 3, the trial court imposed consecutive sentences of eight months (one-third the midterm of two years). For counts 5 through 8, the trial court imposed consecutive sentences of two years (one-third the midterm of six years) to be stayed. The trial court stated it was imposing “a determinate sentence of eight years.” The trial court also sentenced defendant under section 667.61 and imposed a consecutive sentence of 15 years to life on each of counts 4 through 8, for a total sentence of 75 years to life, to be served consecutive to the determinant sentence.
DISCUSSION
The parties agree that the trial court erred in imposing both a determinate and indeterminate sentence for counts 4 through 8. However, the trial court stayed the determinate sentences in counts 5 through 8. We agree as to count 4, but find no error in imposing and staying the determinate terms in counts 5 through 8.
“[T]he One Strike law is an alternative sentencing scheme that applies to certain felony sex offenses. [Citation.] It mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime (§ 667.61 [listing applicable crimes]) and has also found certain factual allegations to be true (§ 667.61, subds. (d), (e)).” (People v. Anderson (2009) 47 Cal.4th 92, 103.) “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.” (Pen. Code, § 654, subd. (a).) It is error to impose sentence under both the one strike law and the determinate sentencing laws “because the former is an alternative, harsher sentencing scheme for those to whom it applies, not an enhancement under the latter. [Citation.]” (People v. Fuller (2006) 135 Cal.App.4th 1336, 1343.)
In People v. Lopez (2004) 119 Cal.App.4th 355 [Fourth Dist., Div. Two], we evaluated the conflict between two alternative sentencing schemes due to true findings implicating both the one strike law and the habitual sexual offender law. We held that when sentencing enhancements “that otherwise would have to be either imposed or stricken [are] barred by an overriding statutory prohibition... the trial court can and should stay the enhancement.” (Id. at pp. 364-365 (original italics).) We held this because of the possibility of invalidation, as well as in the interest of the trial court clearly indicating that it was making its sentencing decision because it thought it must, not because it was “exercising its discretionary power under Penal Code section 1385.” (Id. at p. 365.)
Accordingly, because the One Strike law is “an overriding statutory prohibition” mandating an indeterminate sentence in place of a determinate sentence, it was not error for the trial court to impose and stay a determinate sentence. However, the trial court’s imposition of both an unstayed determinate sentence of six years and an indeterminate sentence of 15 years to life for count 4 violates section 654’s prohibition against multiple punishments.
Because we are unable to reconstruct an intended sentence, the matter must be remanded for re sentencing.
DISPOSITION
The sentence is reversed. The trial court is instructed to conduct a new sentencing hearing. In all other respects, the judgment is affirmed.
We concur: GAUT J., KING J.