Opinion
F076864
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL MICHAEL RODRIGUEZ, Defendant and Appellant.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF318941)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Miguel Michael Rodriguez carjacked a couple, kidnapped them, committed multiple sexual assaults against one of the victims, and robbed the other. He was convicted of 14 counts and received an aggregate sentence of 209 years four months to life.
Rodriguez argues now that his constitutional rights were violated when, in the course of plea negotiations, the prosecutor said she would speak to the victims before making an offer, and subsequently made no offer. Rodriguez cites no authority for the notion that there is a constitutional constraint on conversations a prosecutor may have with a victim before deciding about a negotiated plea, or on the weight a prosecutor may give to a victim's wishes when making that decision. We are aware of no such authority, and Rodriguez makes no persuasive argument for breaking new ground on this topic. He also says the prosecutor turned her discretionary power over to the victims, abdicating her own authority and giving them "veto power," but the record does not support that account of what happened.
Rodriguez next argues that the trial court erroneously failed to stay parts of his sentence under Penal Code section 654. We disagree.
All further statutory references are to the Penal Code unless otherwise noted.
Finally, the parties agree that because of recent statutory amendments, one-year enhancements under section 667.5, subdivision (b), are unauthorized in this case, and the trial court must exercise discretion before imposing five-year enhancements under section 667, subdivision (a). We vacate the sentence, remand for resentencing, and otherwise affirm.
FACTS AND PROCEDURAL HISTORY
The following account of the facts is consistent with the prosecution's evidence presented at trial, viewed in the light most favorable to the judgment. The nature of the issues on appeal makes a more detailed account unnecessary.
T.R. and S.M. were dating. One evening in 2015, they were eating dinner at a fast food restaurant when Rodriguez, a stranger, sat next to them and began talking to them. He told them he was high. When they left, he followed them to their car. With his hands in his pockets, he said he had a gun and demanded that they let him get in the car with them. They complied, and he ordered S.M. to drive some distance, then told her to pull over. He demanded their cell phones. T.R. gave him his, but S.M. did not. Rodriguez then ordered T.R. to get out of the car and climb in the trunk. While Rodriguez waited in the car, T.R. complied and closed the lid on himself.
Rodriguez directed S.M. to drive for several more minutes and told her to stop again. He got on top of her, kissed her, put his hands inside her shirt, and touched her breasts. She told him to stop, but he continued.
T.R. escaped from the trunk. He tried to pull S.M. out of the car, but could not. Rodriguez put his hands around S.M.'s neck and said he would break her neck before T.R. could call 911. Then he drove the car away, leaving T.R. behind. As he drove, he called S.M. a bitch, punched her twice in the jaw, and said he would kill her.
Trying to understand what he was after, S.M. said she would give Rodriguez $500. He said he did not want it. Before he stopped the car again, however, he demanded the money and S.M. gave it to him.
Rodriguez drove into an orchard and ordered S.M. to take off her clothes. When she was naked, he touched her breasts and kissed her again. Then he told her to get out of the car, pulled her by the arm, and pushed her against the hood. He pulled his pants down, otherwise remaining dressed, and thrust his hips against her as if attempting to have intercourse. She felt his skin on her pubic area, but he did not penetrate her. She believed he was unable to get an erection.
After this, Rodriguez made S.M. get back in the car. He drove to several different locations in the orchard, each time ordering her to get out and committing more sexual assaults. Twice he compelled her to perform oral sex on him. A third time, he made her lie on the ground while he lay on her and thrust his hips, still not inserting his penis. Then he inserted his fingers in her vagina and kissed her breasts.
Rodriguez said he heard helicopters and tried to get S.M. back into the car. She escaped from him, however, and he drove away. She climbed a tree, where she hid until the police found her.
The table below shows the offenses and enhancements charged by the prosecution in the information, the jury's verdicts and findings, the trial court's findings on prior convictions, and the sentences imposed by the trial court.
Rodriguez had a prior conviction in 2006 for carjacking (§ 215, subd. (a)), and prior conviction in 2005 for second degree commercial burglary (§ 459). The prior carjacking was alleged as a prior strike for purposes of second strike sentencing (§ 1170.12, subd. (c)(1)) and the five-year enhancement under section 667, subdivision (a)(1). The prior burglary was alleged for purposes of the one-year enhancement under section 667.5, subdivision (b). As indicated below, the trial court followed the rules calling for priors-based enhancements to be applied to each count with an indeterminate term but only once for all counts with determinate terms. (People v. Williams (2004) 34 Cal.4th 397, 400; People v. Minifie (2018) 22 Cal.App.5th 1256, 1259-1265.)
| Count (victim) | Section | Offense orEnhancement | Verdict orFinding | Sentence |
|---|---|---|---|---|
| 1 (victim S.M.) | 289, subd. (a)(1)667.61, subd.(e)(1)667.61, subd.(d)(2)1170.12, subd.(c)(1) | Forcible sexualpenetrationKidnappingenhancementKidnappingenhancement(with increasedrisk)Prior strike | GuiltyTrueTrueTrue | 50 years to life |
| 667, subd. (a)(1)667.5, subd. (b) | Prior seriousfelonyPrior prison term | True | 5 years1 year | |
| 2 (victim S.M.) | Former 288a,subd. (c)(2)(A)667.61, subd.(e)(1)667.61, subd.(d)(2)1170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | Forcible oralcopulation (firstoccurrence)KidnappingenhancementKidnappingenhancement(with increasedrisk)Prior strikePrior seriousfelonyPrior prison term | GuiltyTrueTrueTrueTrueTrue | 50 years to life5 years1 year |
|---|---|---|---|---|
| 3 (victim S.M.) | Former 288a,subd. (c)(2)(A)667.61, subd.(e)(1)667.61, subd.(d)(2)1170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | Forcible oralcopulation (lastoccurrence)KidnappingenhancementKidnappingenhancement(with increasedrisk)Prior strikePrior seriousfelonyPrior prison term(4) | GuiltyTrueTrueTrueTrueTrue | 50 years to life5 years1 year |
| 4 (victim S.M.) | 209, subd. (b)(1) | Kidnapping tocommit sexoffense | Guilty |
| 1170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | Prior strikePrior seriousfelonyPrior prison term | TrueTrueTrue | ||
| 5 (victim T.R.) | 209, subd. (b)(1)1170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | Kidnapping tocommit robberyPrior strikePrior seriousfelonyPrior prison term | Guilty of lesserincluded offense:simple kidnapping(§ 207) | Stayed (§ 654) |
|---|---|---|---|---|
| 6 (victim S.M.) | 209.5, subd. (a)1170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | KidnappingduringcarjackingPrior strikePrior seriousfelonyPrior prison term | GuiltyTrueTrueTrue | |
| 7 (victim T.R.) | 209.5, subd. (a)1170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | KidnappingduringcarjackingPrior strikePrior seriousfelonyPrior prison term | GuiltyTrueTrueTrue | 14 years to life5 years1 year |
| 8 (victim T.R.) | 2111170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | Second degreerobbery (cellphone)Prior strikePrior seriousfelonyPrior prison term | Guilty | Stayed (§ 654) |
|---|---|---|---|---|
| 9 (victim S.M.) | 2111170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | Second degreerobbery (money)Prior strikePrior seriousfelonyPrior prison term | Not guilty | |
| 10 (victim S.M.) | 220, subd. (a)(1)1170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | Assault withintent to commitmayhem or sexoffense (firstoccurrence)Prior strikePrior seriousfelonyPrior prison term | Guilty | 2 years 8 months |
| 11 (victim S.M.) | 220, subd. (a)(1)1170.12, subd.(c)(1)667, subd. (a)(1) | Assault withintent to commitmayhem or sexoffense (lastoccurrence)Prior strikePrior seriousfelony | Guilty | 2 years 8 months |
| 667.5, subd. (b) | Prior prison term | |||
| 12 (victim S.M.) | 261, subd. (a)(2),6641170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | Attemptedforcible rape(first occurrence)Prior strikePrior seriousfelonyPrior prison term | GuiltyTrueTrueTrue | 8 years5 years1 year |
|---|---|---|---|---|
| 13 (victim S.M.) | 261, subd. (a)(2),6641170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | Attemptedforcible rape(last occurrence)Prior strikePrior seriousfelonyPrior prison term | Guilty | 2 years |
| 14 (victim S.M.) | 4221170.12, subd.(c)(1)667, subd. (a)(1)667.5, subd. (b) | Criminal threat(when alone incar)Prior strikePrior seriousfelonyPrior prison term | Guilty | Stayed (§ 654) |
| 15 (victim S.M.) | 4221170.12, subd.(c)(1) | Criminal threat(last occurrence)Prior strikePrior serious | Guilty | Stayed (§ 654) |
| 667, subd. (a)(1)667.5, subd. (b) | felonyPrior prison term | |||
| Totalindeterminatesentence | 188 years to life | |||
|---|---|---|---|---|
| Totaldeterminatesentence | 21 years 4 months | |||
| Aggregatesentence | 209 years 4months |
DISCUSSION
I. Plea bargaining , the prosecutor , and the victims
At a pretrial hearing on July 20, 2017, the court and parties discussed the possibility of a plea bargain. The prosecutor informed the court that she had had a discussion with Rodriguez and defense counsel during which the latter sought to make a deal that would avoid a life sentence, and a determinate sentence of 70 years was discussed. That discussion did not lead to any offer. Defense counsel said Rodriguez was still interested in a deal like that. The prosecutor said she knew the victims wanted a life sentence and wanted a trial, but she said she would discuss the matter further with them. The court directed the parties to return the following day to continue the colloquy.
The next day, the court announced that the prosecution had decided not to make an offer. The trial was set to begin a week later. On the first day of the trial proceedings, before jury selection began, the court raised the question of settlement again, stating that it had been discussing that matter with the parties off the record and there had been no agreement. Defense counsel said Rodriguez would accept a determinate term of 70 or 75 years, but the prosecutor said, "[G]iven the state of the evidence and the Penal Code that we have to follow regarding one strike sex offenses and violent serious felonies, we don't have anything here to make that offer at this time." Defense counsel asked whether the prosecutor would be willing to talk to the victims again about a determinate term of 75 years. The court observed that this sentence would result in "an out date of about 100 years old," and suggested that the victims might be open to this and might be interested in avoiding a trial. The prosecutor agreed to try to reach the victims by telephone to discuss this proposal.
After a recess, the prosecutor had not yet reached the victims. The court described a second proposal that had been discussed among the court and parties during the recess. Under this proposal, Rodriguez would receive a determinate sentence of 22 years eight months, plus a consecutive indeterminate sentence of 50 years to life. The court explained to Rodriguez that this sentence would mean he would serve at least 85 percent of 72 years eight months, after which he would have a parole hearing. (This would have been comparable to a determinate term of 75 years to life, except that Rodriguez would be eligible for parole about a year earlier, but also could be denied parole. Either way, he could not have been released before he was about 95 years old.) The court recessed again so the prosecutor could continue trying to reach the victims.
After this recess, defense counsel told the court, "I've talked to my client about every option, tried to explain it the best way I could, and his decision is he wants to go with the trial." Rodriguez confirmed this. The prosecutor made no comment. A few minutes later, Rodriguez told the court he was confused about what had happened with the two potential plea agreements that had been discussed. The court explained that the prosecutor had finally made contact with the victims, and had decided to make no offer. The prosecutor confirmed this, and the court proceeded to jury selection.
That afternoon, after motions in limine, defense counsel indicated that he thought there still had been no answer on the proposal for 22 years eight months plus 50 years to life. He told the court Rodriguez wanted the prosecutor to put that proposal to her supervisor as well as the victims. The court confirmed that this was what the defense was asking the prosecutor to do. The prosecutor said nothing. The question of settlement was not raised again.
Rodriguez maintains that this record shows the prosecutor did not merely take the victims' views into account, but gave them a "veto power" and "let [them] control her willingness" to enter into a plea agreement. He acknowledges that victims in violent sexual assault cases like this one have a right to be notified of and heard on the issue of plea bargaining (Cal. Const., art. 1, § 28, subd. (b)(6)-(8)), and that the power of the prosecutor to make a settlement offer in this type of case is limited (§ 1192.7, subd. (a)). But he asserts that he was denied the opportunity to enter into "a reasonable plea agreement that the parties otherwise would have agreed to and the court would have ratified." He says the prosecutor's thought process leading to this result—i.e., deciding to do what the victims wanted just because it was what they wanted, as he claims—denied him due process of law under the state and federal constitutions (U.S. Const., amend. 14; Cal. Const., art 1, § 15) and violated the separation of powers clause of the state Constitution (Cal. Const., art. 3, § 3).
We begin our analysis by observing that the record does not show the prosecutor's thought process. We know the prosecutor spoke of the plea proposals without rejecting them before consulting with the victims, that she was not willing to state her final position on them until she had had that consultation, and that she did reject them after she had it. But that is all. This does not come close to demonstrating that she afforded the victims a veto power, allowed them to control the decision, or failed to use her own judgment.
The record surely shows that the prosecutor considered the victims' views to be an important factor, and that she believed she should not make a decision before receiving those views. It might be supposed, not unreasonably, that the victims' views were the deciding factor for her in this instance. After all, the expense of a trial would have been saved, and Rodriguez still could not have been released from prison until extreme old age and he most likely would have died there. But Rodriguez cites no authority for the proposition that he has a constitutional right to have the prosecutor not treat the victims' views as the deciding factor. We have found no such authority. This is not surprising. The provisions of the California Constitution affording victims the right to be notified of and heard on the matter presuppose that their opinions are a factor properly to be considered, and a factor that can never be the deciding factor is no factor at all. We see nothing here but an ordinary exercise of prosecutorial discretion.
Rodriguez's argument that the prosecutor's conduct in obtaining and considering the victims' opinions about potential settlement agreements violated the separation of powers clause of the California Constitution is as follows: This conduct "elevated the victims to the level of a fourth, quasi-governmental entity, even though the [separation of powers clause] expressly vests all the 'powers of state government' in the legislative, executive, and judicial branches." This is not persuasive. The record does not support the idea that the prosecutor conferred governmental authority on the victims and then submitted to that authority as if bound by it.
Rodriguez's due process argument is similar. He says, "the due process right to fundamental fairness must encompass the accused's reasonable expectation that prosecutors will act as the representative of [t]he People as a sovereign entity, and not as the agent of an individual victim." But the record shows that the prosecutor considered and was influenced by the victims' wishes, not that she acted as their agent.
Rodriguez cites People v. Dehle (2008) 166 Cal.App.4th 1380, 1386-1388 (Dehle). Dehle includes a long quotation from People v. Eubanks (1996) 14 Cal.4th 580, 588-590, in which excellent points are made about the function of prosecutors being the representation of the People as a whole and of the law itself, not victims, police, or any other individuals. Eubanks quoted Berger v. United States (1935) 295 U.S. 77, 88, which stated that a prosecutor "is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer."
These principles are unimpeachable, of course, but they do not show that the prosecutor in this case took Rodriguez's life, liberty or property without due process of law. In Dehle, they were relied on to support a holding that an award of restitution had to be reversed because, at the hearing in which it was made, counsel for the deceased victim's survivor appeared, but the district attorney did not. Since a restitution hearing is part of a criminal prosecution, and its purposes are not limited to compensating the victim, the People must be represented, and the victim's representative cannot represent the People as well. (Dehle, supra, 166 Cal.App.4th at pp. 1386, 1388.) The Court of Appeal stated: "We have not been cited to a case, and we are aware of none, where the district attorney in a criminal proceeding has been permitted to simply walk away from an important part of the criminal proceedings, leaving conduct of the restitution hearing to a private attorney who has a duty only to his client and no duty to the People." (Id. at p. 1390.) Nothing similar happened in this case. The record does not support the view that, by factoring the victims' views into her decision on whether to make a settlement offer, the prosecutor abandoned her responsibility to represent the interests of the People and the law, and became the victims' lawyer instead.
For these reasons, we find no irregularity in the proceedings and discussions regarding a potential plea bargain, or in their outcome. II. Section 654
A. Count 7: kidnapping T.R. during carjacking
Counts 1, 2, and 3 involved three different sexual assaults against S.M. Each included an increased punishment based on the allegation that the defendant kidnapped the victim of the assault. Count 7 was kidnapping T.R. during a carjacking. Rodriguez argues that the sentence for count 7 should be stayed pursuant to section 654 because the conviction was based on the same act of kidnapping as that used to increase the sentences on counts 1, 2, and 3.
Section 654 provides that a defendant cannot receive multiple punishments for a single act, or for a course of conduct unified by a single criminal objective, even though that act or course of conduct is punishable in different ways by different provisions of law. (People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675-676; Neal v. State of California (1960) 55 Cal.2d 11, 19, overruled on other grounds by People v. Correa (2012) 54 Cal.4th 331, 344 (Correa).) But "the limitations of section 654 do not apply to crimes of violence against multiple victims." (People v. King (1993) 5 Cal.4th 59, 78.)
Rodriguez argues the kidnapping was improperly used to punish him for kidnapping S.M. and punish him again for kidnapping T.R., even though there was only one kidnapping. But the fact that one act or course of conduct with a single objective amounts to crimes against two people does not trigger section 654. Instead, it falls squarely within the multiple victim exception.
People v. Kelly (2016) 245 Cal.App.4th 1119, 1130-1137 (Kelly), on which Rodriguez relies, is not on point. It involved an aggravated sentence for a crime committed during a kidnapping plus another sentence for a conviction of kidnapping, where both punishments were based on the same kidnapping. But in that case, there was only one victim.
For these reasons, we conclude Rodriguez's contention lacks merit.
B. Section 667.61 , subdivision (d)(2) enhancements
In supplemental briefing filed after we granted rehearing for the purpose, Rodriguez challenges, under section 654, multiple sentencing on three sentence enhancements imposed under section 667.61, subdivision (d)(2), the One Strike Law, in connection with his convictions on counts 1 (forcible sexual penetration; § 289, subd. (a)(1)), 2 (forcible oral copulation; § 288a, subd. (c)(2)(A)), and 3 (forcible oral copulation; § 288a, subd. (c)(2)(A)), for three separate, sexual assaults on S.M. We detect no error in the imposition of the One Strike enhancements in connection with counts 1, 2, and 3.
Section 667.61, also known as the One Strike Law, provides "an alternative, harsher sentencing scheme for certain forcible sex crimes." (People v. Mancebo (2002) 27 Cal.4th 735, 738.) "Section 667.61 requires the trial court to impose a life sentence when the defendant is convicted of an enumerated sexual offense [under subdivision (c)] and the People plead and prove one or more of the specified aggravating circumstances. [Citations.] When the People prove a single circumstance listed under section 667.61, subdivision (d) or at least [two] of the circumstances listed under subdivision (e), the term is 25 years to life; when only a single circumstance under subdivision (e) is proved, the term is 15 years to life." (People v. DeSimone (1998) 62 Cal.App.4th 693, 696-697; § 667.61.)
Here, Rodriguez was convicted of three separate sex crimes in counts 1, 2, and 3, and an aggravated kidnapping circumstance under section 667.61, subdivision (d) was pled and proven as to each. Rodriguez was sentenced to three terms of 25 years to life for the three sex crimes. He argues section 654 prohibits application of the section 667.61, subdivision (d) enhancement three times, i.e., to each of the three sex offenses. He contends he should be punished only once for kidnapping under the One Strike Law.
As noted above, "[s]ection 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) Section 654, subdivision (a) states: "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." (Italics added.) The purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability. (See, e.g., People v. Oates (2004) 32 Cal.4th 1048, 1063.)
Section 654 has only relatively recently been applied to limit enhancements, specifically conduct enhancements, or those arising from the circumstances of the substantive offense as opposed to the status of the offender. (People v. Ahmed (2011) 53 Cal.4th 156, 160-161, 163 (Ahmed) [Enhancements are "'provisions of law'" under which an "'act or omission'" is "'punishable.'"].) To be sure, the section 667.61 circumstance of aggravated kidnapping is not an enhancement; it is part of the One Strike sentencing scheme or alternative penalty provisions. Nonetheless, the circumstance could be characterized as functionally equivalent to a conduct enhancement for purposes of section 654 analysis, in that it focuses on the manner in which the underlying offense was committed. (See Kelly, supra, 245 Cal.App.4th at p. 1131.)
People v. Wooten (2013) 214 Cal.App.4th 121, explains that, under Ahmed, "[a] sentence enhancement relates to an aspect of the substantive offense to which it attaches, not to other similar enhancements for separate criminal acts." (Wooten, supra, at p. 130.) Wooten holds, in turn, that to the extent section 654 does not bar separate punishment for multiple criminal acts which are divisible because they reflect separate intents, objectives, or events, it similarly does not apply to an enhancement properly attached to those offenses. (Wooten, at p. 130.) Accordingly, "the same type of enhancement may be imposed for each substantive offense committed with differing intent or for a different purpose." (Id. at p. 131, italics added.) In other words, "[s]o long as the conduct giving rise to the convictions of separate substantive offenses is divisible or arises from separate criminal acts, neither section 654 nor Ahmed, supra, 53 Cal.4th 156 requires the staying of the attached enhancements." (Id. at p. 131, italics added.) Since the underlying sex offenses here constitute divisible criminal acts outside the purview of section 654, under Wooten's analysis, the enhancements attached to these offenses are outside the purview of section 654 as well. We are not persuaded otherwise by the authorities cited by the defendant.
Our analysis also comports with the California Supreme Court's updated interpretation of section 654 in Correa, supra, 54 Cal.4th 331. Correa addressed the question of whether section 654 applies to multiple punishments imposed under the same provision of law. (Correa, supra, at pp. 340-341.) Correa explained: "Both the language and purpose of section 654 counsel against applying it to bar multiple punishment for violations of the same provision of law. Certainly the language of section 654 does not support such an application. By its terms section 654 applies only to '[a]n act or omission that is punishable in different ways by different provisions of law....'" (Ibid.) Thus, in a departure from prior practice, Correa limited the application of section 654 according to its terms, that is, to "'[a]n act or omission that is punishable in different ways by different provisions of law.'" (Correa, supra, 54 Cal.4th at p. 341.) In other words, Correa held that "section 654 does not bar multiple punishment for violations of the same provision of law." (Id. at p. 344.)
Here, Rodriguez does not challenge multiple punishments for the three, separate sexual assaults at issue in counts 1, 2, and 3; rather he challenges only the One Strike Law enhancements associated with these offenses, all of which enhancements arose under the same provision of law, specifically section 667.61, subdivision (d)(2). (See Ahmed, supra, 53 Cal.4th at p. 163 [provisions describing substantive crimes generally define criminal acts, but enhancement provisions do not define criminal acts; rather, they increase the punishment for those acts, and, in doing so, "they focus on aspects of the criminal act that are not always present and that warrant additional punishment"].) However, in the same way that, under Correa, section 654 does not bar multiple punishment for multiple violations of a statute defining a substantive offense, section 654 does not bar multiple punishment for multiple violations of a statute defining sentence enhancements, in this instance, section 667.61, subdivision (d)(2). (Correa, supra, 54 Cal.4th at p. 344 ["section 654 does not bar multiple punishment for violations of the same provision of law"]; Ahmed, supra, 53 Cal.4th at pp. 160-161, 163 [enhancements are "'provisions of law'" under which an "'act or omission'" is "'punishable'"].)
In this context, it is significant that the trial court properly stayed the sentences on the two substantive kidnapping offenses involving S.M.—kidnapping during carjacking (§ 209.5, subd. (a)) and kidnapping to commit sex offense (§ 209, subd. (b)(1)—both of which clearly arose under "different provision[s] of law" than the One Strike enhancements at issue here and therefore properly triggered the application of section 654. (cf. Kelly, supra, 245 Cal.App.4th at p. 1130 [where defendant was convicted of both a substantive kidnapping offense and a sex offense with kidnapping enhancement under One Strike law, section 654 precluded multiple punishment for the same kidnapping under both the relevant kidnapping statute and the One Strike Law].)
We conclude Rodriguez's challenge to multiple application of the One Strike Law has no merit. III. Sentencing issues under recent statutory amendments
A. Section 667.5 , subdivision (b)
Rodriguez's sentence also includes several one-year enhancements under section 667.5, subdivision (b), for a prior offense for which he served a prison term. Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136), enacted October 8, 2019, amended section 667.5, subdivision (b), to limit the prior offenses to which it applies. Under the law as amended, the prior prison term must be for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Stats. 2019, ch. 590, § 1.) The amendment was not in effect at the time of Rodriguez's sentencing.
The parties agree that Senate Bill No. 136 is an example of a new statute reducing punishment, and is therefore applicable to cases—like this one—that were still pending on direct review when the statute came into effect. Rodriguez's section 667.5, subdivision (b) enhancements were not based on a sexually violent prior offense. Therefore they are unauthorized now. They must be reversed and cannot be reimposed on remand. (See People v. Estrada (1965) 63 Cal.2d 740, 745 (Estrada).)
B. Section 667 , subdivision (a)
Rodriguez's sentence includes several five-year enhancements for a prior serious felony under section 667, subdivision (a). He and the People agree that, on remand, the trial court must consider striking this enhancement pursuant to the discretion newly granted to the court by Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill No. 1393.)
Section 1385 empowers a trial court to "order an action to be dismissed" in furtherance of justice, on its own or the prosecution's motion. (§ 1385, subd. (a).) This power has been held to include "the lesser power to strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) Prior to the effective date of Senate Bill No. 1393 (January 1, 2019), however, section 1385 expressly excluded prior serious felony convictions alleged "for purposes of enhancement of a sentence under Section 667," (§ 1385, subd. (b)); and section 667, subdivision (a)(1), expressly referred to this limitation. Consequently, trial courts did not have discretion to strike prior serious felony allegations made under section 667, subdivision (a). Senate Bill No. 1393 amended section 1385 to delete the exclusion, and amended section 667, subdivision (a), to delete the reference to the exclusion. Beginning January 1, 2019, therefore, trial courts have the discretion to strike a five-year prior serious felony enhancement allegation.
The parties agree that, as a statute expanding the trial courts' discretion to impose a lesser sentence, Senate Bill No. 1393 applies to cases—again like this one—that were still pending on direct appeal when it became effective. (See Estrada, supra, 63 Cal.2d at p. 745; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
The parties also agree that a remand is necessary to allow the trial court to exercise this new discretion, because the record does not clearly indicate that the court would have exercised it to impose the enhancements and not strike them. (See People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.) We accordingly remand with directions to do this at a resentencing hearing.
DISPOSITION
The sentence is vacated and the case is remanded for resentencing consistent with this opinion. The judgment is otherwise affirmed.
SMITH, J. WE CONCUR: LEVY, Acting P.J. SNAUFFER, J.