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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Appellant, v. Jose Antonio ROJAS, Defendant and Respondent.

Crim. Nos. B028388, B028389.

Decided: August 25, 1988

Michael D. Bradbury, Dist. Atty., and Michael D. Schwartz, Deputy Dist. Atty., for plaintiff and appellant. Steven L. Whiteside, Santa Barbara, under appointment by the Court of Appeal, for defendant and respondent.

The People appeal from the trial court's Deputy Clerk imposition of sentences in Ventura County Superior Court cases CR 21446 and CR 21447 ordered consolidated by this court for purposes of appeal.   The Attorney General filed a “no merit” letter in both cases and declined to file opening briefs.   The Ventura County District Attorney took up the cudgel.

The People contend that the trial court erred in failing to sentence Rojas pursuant to Penal Code section 667.6, subdivision (d), and in the alternative, failed to exercise its discretion to sentence pursuant to section 667.6, subdivision (c) in lieu of section 1170.1.1  For the reasons set forth below, we affirm the judgment.


The People appeal from the judgments in cases CR 21447 and CR 21446.   In case number CR 21447, the court convicted Rojas of rape (§ 261, subd. (2)) and first degree burglary (§ 459) with intent to commit rape of Gloria B., committed July 21, 1986.   The jury also found that Rojas committed the offenses while on his own recognizance for a felony offense pending in Los Angeles.  (§ 12022.1.)   Prior to trial, the People informed Rojas that if he did not accede to their offer to consolidate cases CR 21446 with CR 21447 for trial, a conviction in CR 21447 might be alleged as a prior offense in the subsequent trial of CR 21446.   Rojas did not agree to the consolidation and the People made good their intention.

In case CR 21446, Rojas was convicted of the residential burglary of Carol Louise Angelello committed July 23, 1986.   Rojas admitted the section 12022.1 allegation as well as the allegation of a prior serious felony conviction, to wit the rape of Gloria B. (§ 667, subd. (a)).  May 1, 1987, the trial court sentenced Rojas in CR 21447 to the middle term of six years for the rape, stayed the burglary conviction pursuant to section 654, suspended the two-year section 12022.1 enhancement, and in CR 21446, sentenced him to one-third of the middle term of four years (1.4 years) for the Angelello burglary consecutive to case 21447, plus five years for prior serious felony enhancement, and suspended the section 12022.1 allegation, for a total term on both cases of twelve years, four months.

After imposition of sentence, the People moved the court to reconsider, contending that the court should have imposed sentence pursuant to section 667.6, subdivision (d), or, in the alternative, section 667.6, subdivision (c).   The trial court stated it did not find that section 667.6, subdivision (d) applied, and was unaware of its discretion to sentence pursuant to section 667.6, subdivision (c) where there was only one sex offense committed.   The court added, however, that had it been aware of such discretion, “the probability [was] very strong” that it would not have imposed a different sentence due to imposition of the five-year enhancement for the prior serious felony as it did not believe the offenses warranted more than twelve years, six months.


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Section 667.6, subdivision (d), does not mandate a different result.

Section 667.6, subdivision (d), provides that “[a] full, separate, and consecutive term shall be served for each violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person if the crimes involve separate victims or involve the same victim on separate occasions․” 4

Section 667.6, subdivision (d), further provides that “[t]he term shall be served consecutively to any other term of imprisonment, and shall commence from the time the person would otherwise have been released from imprisonment.   The term shall not be included in any determination pursuant to Section 1170.1.   Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.”

The People contend that this section requires a full separate term for each and every forcible rape, even if only one sex offense was committed, and that sentence for this sex offense must be imposed consecutive to the nonsex offense.   Consequently, according to the People, the trial court could not utilize the rape as the principal term, but should have imposed the full six-year term consecutive to the burglary conviction in CR 21446.   The People assert, in other words, that whenever a defendant is sentenced on one sex crime together with nonsex-related offenses, the trial court must sentence under 667.6, subdivision (d).   Although the sentencing scheme under section 667 has not been a model of clarity, it has never yet been given this novel interpretation and we decline to do so here.

Subdivision (d) has consistently been interpreted as referring to multiple sexual offenses, even though this exact question has not been presented.  (See People v. Craft (1986) 41 Cal.3d 554, 559, 224 Cal.Rptr. 626, 715 P.2d 585;  People v. Hunter (1986) 184 Cal.App.3d 1531, 1535, 229 Cal.Rptr. 330;  People v. Jamison (1984) 150 Cal.App.3d 1167, 1176, 198 Cal.Rptr. 407;  People v. Collins (1983) 143 Cal.App.3d 742, 192 Cal.Rptr. 101;  People v. Thompson (1982) 138 Cal.App.3d 123, 187 Cal.Rptr. 612.)   The People rely on People v. Belmontes (1983) 34 Cal.3d 335, 345–346, 193 Cal.Rptr. 882, 667 P.2d 686, for support because Belmontes held that if a defendant is convicted of both a sex offense and nonsex offense, a nonsex offense may be designated as the principal term under section 1170.1, and a full, separate and consecutive term may be imposed for the sex offense under section 667.6, subdivision (c).   The People argue that this rule should also apply to subdivision (d) as well because the language of both subdivisions is “almost identical” regarding the terms consecutive to other terms of imprisonment, when the term should commence, and noninclusion of the determination pursuant to section 1170.1.

The quoted language in Belmontes, however, was discretionary—“may” and not “shall.”   Moreover, Belmontes indicated that, “nothing in section 1170.1 presents an obstacle to its application to sex offenses listed in section 667.6, subdivision (c).   In fact, there is compelling proof that the Legislature visualizes continued utilization of section 1170.1 for such offenses.”  (People v. Belmontes, supra, 34 Cal.3d at p. 345, 193 Cal.Rptr. 882, 667 P.2d 686.)   Yet under the People's interpretation, the “consecutive terms” language would mandate application of either (c) or (d) to a single sex offense where other offenses were committed precluding utilization of section 1170.1 completely where only a single sex offense was committed.

Such an interpretation leads to absurdity:  if a defendant committed multiple sexual offenses against the same victim on the same occasion, he would be subject to discretionary consecutive sentences under subdivision (c), but if he committed one sex offense and another unrelated offense, he would be subject to a mandatory consecutive term for the sex offense under (d), the supposedly harsher provision.   According to the People's interpretation, commission of any one enumerated sex offense would mandate sentencing under either (c) or (d).  We will not attribute to the Legislature “an intent to create ‘an illogical or confusing scheme’․”  (People v. Jeffers (1987) 43 Cal.3d 984, 998, 239 Cal.Rptr. 886, 741 P.2d 1127.)   Under settled rules of statutory construction, a court is bound to resolve any ambiguity in favor of the defendant.  (People v. Belmontes, supra, 34 Cal.3d at p. 346, 193 Cal.Rptr. 882, 667 P.2d 686;  People v. Craft, supra, 41 Cal.3d at p. 560, 224 Cal.Rptr. 626, 715 P.2d 585.)   Had the Legislature so contemplated the intendment argued by the People, it could have used the words “each and every violation.”

We find enlightening the “dicta” in People v. Craft, supra, wherein the Supreme Court discussed the differences between subdivisions (c) and (d).  Initially, the court stated that “[t]he Legislature has established a special sentencing scheme for multiple sexual offenses.  Section 667.6, subdivision (c) ․ provides that generally the court has discretion to impose full, separate, and consecutive terms ‘whether or not the crimes were committed during a single transaction.’  ․ [¶ ] Subdivision (d), by contrast, provides that the court is without discretion in the matter, but must impose full, separate, and consecutive terms ‘if such crimes involve separate victims or involve the same victim on separate occasions.’ ”  (People v. Craft, supra, 41 Cal.3d at pp. 558–559, 224 Cal.Rptr. 626, 715 P.2d 585, fns. omitted.)

The court continued:  “As opposed to the person who commits several rapes on a single occasion, the one who rapes his victim on ‘separate occasions' seems to deserve the harsher punishment automatically.   Common moral sense teaches that other things being equal he is both more culpable because he turns away from one attack and after an opportunity for reflection undertakes another, and more harmful because he inflicts distinct traumata on his victim.   Moreover, similar reasoning seems to underlie the decision of the Legislature to subject to the provisions of subdivision (d) the person who commits offenses against ‘separate victims.’   This person has also abandoned one attack and turned his attention elsewhere—i.e., towards his next victim—before committing yet another offense․”  (People v. Craft, supra, 41 Cal.3d at p. 561, 224 Cal.Rptr. 626, 715 P.2d 585.)   This language presupposes the attacks are of similar nature and not forcible rape and later burglary.

Craft 's discussion is in harmony with People v. Karsai (1982) 131 Cal.App.3d 224, 242, 182 Cal.Rptr. 406, wherein the reviewing court stated that “[i]n enacting Penal Code section 667.6 the Legislature has chosen to treat violent sex offenses and violent sex offenders in a manner differently than other types of offenses and offenders.   The statute is directed at recidivism by providing for longer enhancements for prior convictions of the same type of offense.   The statute is directed at multiplicity of offenses by providing for full, separate, consecutive sentencing.”  (Emphasis added.)

Consequently, we find persuasive the dicta in the multitude of cases which have discussed application of subdivision (d) indicating that it applies to multiple sex offenses only.   Moreover, although courts of appeal have held that a trial court may utilize subdivision (c) where only one of a number of offenses is one of the enumerated sex offenses, there have been recent subtle changes in the statutory language in subdivisions (c) and (d) which may cast some doubt upon the distinctions drawn between those two sections by at least one court.   In People v. Jamison, supra, 150 Cal.App.3d 1167, 1176, 198 Cal.Rptr. 407, the reviewing court noted that “mandatory subdivision (d) applies only to multiple violent sex offenses.”   The majority in Jamison distinguished the intent of (c) from (d) because of the use of the term “such crimes” in (d) as being limited to the listed offenses in that section whereas “ ‘the crimes ․ during a single transaction’ ” of (c) “would apply to crimes not listed as well as those listed․”  (Ibid.)   The word “such” has subsequently been changed throughout the statutes to the word “the.”

The People further argue that since the trial court indicated that had it not felt that the five-year prior serious felony enhancement was mandatory and imposed it, the court might have exercised its discretion to utilize the provisions of section 667.6, subdivision (c), we should remand for resentencing.   This contention is premature.   The propriety of that enhancement is not before us.   If, in respondent's pending appeal, he is successful in challenging that enhancement, the trial court will have the opportunity to sentence respondent anew.

The judgment is affirmed.


1.   All statutory references hereinafter are to the Penal Code unless otherwise specified.

4.   Because imposition of consecutive sentences under this section is mandatory in appropriate circumstances, an appeal from an alleged failure to utilize this section would appear authorized under section 1238, subdivision (a)(10), which gives the People the right to appeal from the imposition of an unlawful sentence.

STEVEN J. STONE, Presiding Justice.

GILBERT and ABBE, JJ., concur.

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