PEOPLE v. ANDERS (1983)

Henry Darnell Anders appeals a judgment of conviction entered after a jury found him guilty of five rapes (Pen.Code, § 261, subds. (2), (3)),¹ one attempted rape (§§ 664;  261, subds. (2), (3)), seven robberies (§ 211), and seven burglaries (§ 459), as well as several true findings of great bodily injury (§§ 12022.7;  12022.8), great bodily injury on aged victims (§ 1203.09, subds. (a), (b)(vi);  (a), (b)(vii) and (viii)), and use of deadly weapon (§§ 12022.3, subd. (a);  12022, subd. (b)) enhancements.   We modify Anders' unstayed prison sentence of 42 years by staying one additional year because the court failed to apply the limitation of section 1170.1, subdivision (a) correctly.   Except for the modification, we affirm the judgment.

I

In seven separate incidents between August 1979 and February 1980, Anders terrorized five women ranging in age from 62 to 79.   He committed seven burglaries, seven robberies, five rapes, and an attempted rape.   Because Anders' claims of sentencing error do not raise factual issues we restrict our factual narrative to the one rape conviction which he claims is unsupported by the evidence.

Facts [Count 12]

About 4:00 a.m. on January 23, 1980, 75-year-old Ms. D. was awakened by a man sitting on her bed.   The man, Anders, demanded money.   After taking more than $60 from her purse, Anders put his hand on Ms. D.'s throat and tore off her clothes as she screamed and struggled to resist his efforts to rape her.   During the struggle, Anders punched Ms. D., splitting the skin between her vagina and rectum causing blood to shoot out “all over everywhere.”   When the police arrived, Ms. D. was taken to the emergency room at a local hospital.   The treating physician's report, which was introduced at trial, stated “one inactive sperm” on a shallow vaginal smear was found and that Ms. D. suffered a “first degree laceration of the posterior aspect of the introitus.”   Semen stains were found on the sheet on her bed and on her slip near the blood stains on the same items.   A criminalist and forensic serologist, each of whom testified he had made a separate examination of the vaginal swabs, found no evidence of semen.   Ms. D. explained she “couldn't tell” whether there had been any sexual penetration.

Substantial Evidence Supports the Conviction

 To prove a rape occurred, the prosecution must show an act of sexual intercourse with a person not the spouse of the perpetrator accomplished by means of force or fear of unlawful bodily injury.  (§ 261, subd. (2).)  Any sexual penetration, which may be proved by circumstantial evidence (People v. Stevenson (1969) 275 Cal.App.2d 645, 650, 80 Cal.Rptr. 392, cert. den., 397 U.S. 1014, 90 S.Ct. 1247, 25 L.Ed.2d 428), is sufficient to complete the crime.  (§ 263;  People v. Karsai (1982) 131 Cal.App.3d 224, 232–233, 182 Cal.Rptr. 406.)

 Here, Anders' sufficiency argument is directed solely to the evidence supporting the completion of the sexual act;  he in effect concedes the purpose of his assault was to commit rape.²  In pursuing his argument, Anders focuses our attention on Ms. D.'s uncertainty whether he penetrated her and the fact that no semen was found on the deep vaginal smears.   Although we recognize that where a conviction is challenged because of insufficiency of the evidence we must examine that evidence to determine whether it is “reasonable in nature, credible, and of solid value” (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738), we must nevertheless examine the record in the light most favorable to the verdict.  (People v. Thompson (1980) 27 Cal.3d 303, 322–323, 165 Cal.Rptr. 289, 611 P.2d 883.)

 Anders' uncontradicted attempt at intercourse, the presence of one inactive sperm found by the physician who examined Ms. D., and the injury to her introitus provide substantial evidence to support the jury's finding of sexual penetration.   Notwithstanding contrary evidence by other experts on the absence of semen on the vaginal swabs, we are satisfied the evidence presented has the solid value to support the conviction.

II

The court remanded Anders to the California Youth Authority (YA) for evaluation under Welfare and Institutions Code, section 707.2 ³ but did not certify him under former Welfare and Institutions Code, section 6302 ⁴ for an examination to determine whether he was a mentally disordered sex offender (MDSO).   Later, at the sentencing hearing, Anders argued to be certified for examination and to be allowed a hearing to determine whether he was an MDSO.   He did not mention a possible YA commitment.   The court sentenced him to prison.   Anders argues the court prejudicially erred by failing to state reasons for rejecting MDSO certification and YA commitment.

The Court Did Not Err in Failing to State Reasons for Rejecting MDSO Certification;  Substantial Evidence Supports the Court's Decision

Under former Welfare and Institutions Code section 6302, the mechanism for initiating MDSO proceedings was the court's finding of probable cause to believe the defendant was an MDSO.   This threshold finding of probable cause could be made by the court on its own motion or the process could be triggered by either the prosecutor or the defendant drawing the court's attention to the likelihood of the defendant's MDSO status.   The court could certify the defendant for the hearing and examination to determine whether he was an MDSO only after making the preliminary finding of probable cause.

 Whether a court makes the initial finding of probable cause obviously affects the court's later sentence choice.   In the absence of probable cause, the court cannot consider committing the defendant as an MDSO.   Thus, in this context, the preliminary factual finding by the trial court may be seen as a sentence choice because the absence of the necessary finding limits the scope of the court's later sentencing discretion.   But the phrase “sentence choice” has become a term of art limited to those sentencing decisions for which the court must state its reasons.  (See § 1170, subd. (c);  People v. Lock (1981) 30 Cal.3d 454, 459, 179 Cal.Rptr. 56, 637 P.2d 292.)   The definition does not encompass all findings by the court during post-trial proceedings which may ultimately affect the sentencing disposition in a particular case.

 A “sentence choice” is limited to “․ the selection of any disposition of the case which does not amount to a dismissal, acquittal, or grant of a new trial.”  (Cal.Rules of Court, rule 405(f);  People v. Lock, supra, 30 Cal.3d at p. 459, 179 Cal.Rptr. 56, 637 P.2d 292.)   Although a statement of reasons is always helpful in reviewing a court's sentencing decision, “sentence choice” refers to those exercises of judicial discretion for which meaningful review is not possible without a statement of reasons on the record.  (See People v. Lock, supra, 30 Cal.3d at p. 459, 179 Cal.Rptr. 56, 637 P.2d 292.)   Consistent with this definition, only after a defendant has been examined and determined to be an MDSO who is amenable to treatment is the decision not to commit him to a medical facility a “sentence choice.”  (People v. Sanderson (1982) 138 Cal.App.3d 821, 824–825, 188 Cal.Rptr. 73;  see also People v. Lock, supra, 30 Cal.3d at p. 459, 179 Cal.Rptr. 56, 637 P.2d 292.)   The court's determination the defendant is not an MDSO, which presupposes an earlier finding of probable cause, is not a “sentence choice.”  (See People v. Sanderson, supra, 138 Cal.App.3d at p. 825, 188 Cal.Rptr. 73.)   We therefore hold the court's finding that Anders was not an MDSO is not a “sentence choice.”  (See People v. Calhoun, 141 Cal.App.3d 117, 190 Cal.Rptr. 115.)

 We are also satisfied there is ample evidence to support the court's determination in not finding probable cause.   Although Anders did not apply by affidavit, he submitted a sentencing brief which referred to the crimes themselves and a psychiatric evaluation by Dr. Randolph Read in arguing probable cause.   Dr. Read's report, attached to the probation report, states that “[a]t some point, this minor may reach the criteria for classification as a mentally disordered sex offender” and “[p]lacement in one of the hospital MDSO programs may be appropriate, but the defendant's long history of compulsive, aggressive displays in school suggests that regardless of the treatment program, he will continue to have difficulties․  The available data, at this point, suggest that commitment to YA or a state hospital facility with close follow-up care after his eventual release would be the best course.”

Dr. Read's equivocal report, however, was the only medical or psychological evidence Anders presented to the court.   The probation report itself advised against certification, stressing the strong element of strictly antisocial behavior in Anders' offenses.   Also, the YA report included a psychiatric evaluation which categorically stated Anders was not a mentally disordered sex offender because of his undisturbed mental status and his other antisocial and aggressive tendencies.   This evidence supports the court's finding there was no probable cause that Anders was an MDSO.

The Court Did Not Err in Failing to State Its Reasons for Denying YA Commitment;  Substantial Evidence Supports the Court's Decision

Anders also contends the court prejudicially erred by not stating its reasons for denying YA commitment.   Under Welfare and Institutions Code section 707.2, a court cannot sentence a defendant who was a minor when he committed the offenses but was found not a fit and proper subject to be dealt with under the juvenile court law until it sends him to YA for evaluation and report.   After reading and considering the YA report, the court may determine the minor is not suitable for YA commitment and impose a prison sentence.

 Again, for the same reasons stated in our earlier discussion, the determination that a minor is not suitable for YA commitment will affect the court's later sentence decision.   In such a case, the court's sentencing discretion will be narrowed accordingly, eliminating YA as a sentencing possibility.   But the significance of the court's finding should not be confused with the court's “sentence choice” as that phrase has been defined.   (See p. 193, ante.)

The court must find the defendant unsuitable for YA before it may impose a prison sentence.  “A finding that the defendant is not suitable for Youth Authority is implied when [the minor defendant] is sentenced to state prison.”  (People v. Bracamonte (1982) 137 Cal.App.3d 936, 938, 187 Cal.Rptr. 525.)   This determination of unsuitability is analogous to a court's finding a defendant who is an MDSO is not amenable for treatment, which is not a “sentence choice.”  (See People v. Sanderson, supra, 138 Cal.App.3d at pp. 824–825, 188 Cal.Rptr. 73.)   Because we may meaningfully review the court's determination, we conclude the YA decision is likewise not a “sentence choice.” ⁵  (See People v. Bracamonte, supra, 137 Cal.App.3d at p. 940, 187 Cal.Rptr. 525.)

 There is also substantial evidence to support the court's decision rejecting YA.   In People v. Carl B. (1979) 24 Cal.3d 212, 214–215, 155 Cal.Rptr. 189, 594 P.2d 14, our Supreme Court concluded the court should accord great weight to the YA report and ordinarily should follow its recommendation.   Here, YA stated Anders “was not amenable to California Youth Authority programming” and the probation report recommended “a commitment to the California Youth Authority in this case is not considered appropriate.”   The psychiatrist and psychologist who evaluated Anders for YA did not express recommendations on possible YA commitment.   The only evidence supporting the commitment came from Anders' psychiatrist, Dr. Read, who opined that Anders needed a structured and secure rehabilitation program and recommended the California Youth Authority as being able to provide the appropriate counseling and vocational programs.   In spite of this report, Anders did not argue for YA commitment at the sentencing hearing nor did he submit any written support for such commitment with the papers he filed before the hearing.   The court's finding Anders was unsuitable for YA commitment is supported by substantial evidence.

III

The court computed Anders' unstayed sentence of 42 years as follows: 13 years for the principal term (count 12, 8 years base term for rape (§ 261, subds. (2), (3)) plus a 5-year enhancement (§ 12022.8));  11 years, full consecutive term (count 6, 8 years for rape (§ 261, subds. (2), (3)) plus a 3-year enhancement (§ 12022.3, subd. (a)));  8 years, full consecutive term (count 1, rape (§ 261, subds. (2), (3)));  2 years (1/313 midterm) each for the rapes which occurred in 1979 (counts 21, 24);  1 year for attempted rape (count 18);  and 1 year (1/313 midterm) for each of the 5 robberies which occurred during 1979 and 1980 (counts 11, 14, 17, 20, 23).   Anders maintains the court made a sentencing error when it imposed full consecutive terms under section 667.6, subdivision (d) for the rapes which occurred in 1980.⁶  He argues a proper interpretation of the statutory scheme embodied in section 667.6 ⁷ required the court to find he was a repeat offender before it could impose full consecutive terms under section 667.6, subdivision (d).   Anders also contends the court erred in computing his term of imprisonment by failing to apply the limitations of sections 1170.1, subdivisions (a) and (f) correctly.

The Court Did Not Err in Imposing a Consecutive Sentence Under Section 667.6, Subdivision (d)

In urging the court was required to find him a recidivist under section 667.6, subdivisions (a) or (b) before it could impose full consecutive terms under section 667.6, subdivision (d), Anders points to sections 667.5, 667.51, and 667.7, all of which at least in part apply to repeat offenders.   He states the Legislature placed section 667.6, subdivision (d) among these other sections solely because it was concerned with recidivism.   He maintains the legislative purpose of section 667.6, subdivision (d) is only to punish repeat offenders who are currently convicted of multiple sex crimes.

 Although the language of section 667.6, subdivision (d) appears to be unambiguous, we acknowledge it cannot be read in isolation.  (See People v. Welge (1980) 101 Cal.App.3d 616, 622, 161 Cal.Rptr. 686.)   The section must be construed with reference to the statutory system of which it is a part in accordance with the intent of the Legislature.  (See Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081.)

 In promulgating section 667.6, the Legislature was concerned with severely punishing defendants convicted of various sex offenses.  (See People v. Karsai, supra, 131 Cal.App.3d at p. 242, 182 Cal.Rptr. 406.)   It explicitly empowered the court to impose harsher punishment than permitted under section 1170.1.   The Legislature obviously viewed as dangerous those individuals who had previously been convicted of sex crimes who continued to commit those offenses (§ 667.6, subds. (a) and (b)) in addition to those persons who committed multiple violent sex crimes (§§ 667.6, subds. (c) and (d)).   Section 667.6 is thus directed at both the recidivist and the person without a record of sex crimes who commits multiple sex offenses.  (People v. Karsai, supra, 131 Cal.App.3d at p. 242, 182 Cal.Rptr. 406.)   There is no inherently logical necessity to prescribe punishment for sex offenders in two distinct statutes solely because offenders have different criminal records.   There is also nothing in the law which prohibits subdivisions of a criminal statute addressing more than one specific subject.   The court was not required to find Anders a recidivist before imposing the consecutive sentences for the 1980 rapes.

The Court Did Not Err in Rejecting the Limitation Period Under Section 1170.1, Subdivision (f);  The Limitation Period Under Section 1170.1, Subdivision (a) Requires a One-Year Stay

 Anders asserts the court failed to apply the limitations of sections 1170.1, subdivisions (a) and (f).   Section 1170.1, subdivision (f), effective at the relevant time here, read as follows:

“The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of Section 1170 unless the defendant stands convicted of a felony described in subdivision (c) of Section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (b) of this section, or an enhancement is imposed pursuant to Section 12022, 12022.5, 12022.6 or 12022.7.”

Anders explains that when we apply the rationale of People v. Sequeria (1981) 126 Cal.App.3d 1, 179 Cal.Rptr. 249 to section 1170.1, subdivision (f), we must stay two years of his prison sentence.   In People v. McClelland (1982) 136 Cal.App.3d 503, 186 Cal.Rptr. 365, this court concluded the reasoning of People v. Wright (1979) 92 Cal.App.3d 811, 154 Cal.Rptr. 926 to be persuasive and rejected Sequeria's analysis.   Thus, without delving into the mathematical intricacies of Anders' argument, we hold the limitation of section 1170.1, subdivision (f) does not apply.   Under McClelland and Wright, Anders' convictions of the rapes, each of which falls under section 667.5, subdivision (c), remove him from the scope of the double base term limit of section 1170.1, subdivision (f) for the nonviolent crimes.

 As the Attorney General concedes, however, Anders' argument pertaining to the limitation of section 1170.1, subdivision (a) is correct.   That section prohibits the total unstayed subordinate terms for consecutive felonies not listed in section 667.5, subdivision (c) from exceeding five years.  (See People v. Harvey (1979) 25 Cal.3d 754, 761, 159 Cal.Rptr. 696, 602 P.2d 396;  People v. Hernandez (1981) 30 Cal.3d 462, 466–467, 179 Cal.Rptr. 239, 637 P.2d 706.)   Here, the six-year sentence for the nonviolent felonies of attempted rape and the five robberies exceeds the five-year limit.   Accordingly, one year for the robbery in count 23 must be stayed.

The Court Properly Used Count 12 as the Principal Term

The People contend that even if we reject Anders' arguments we must nonetheless remand this case for resentencing because the court exceeded its jurisdiction in using the 1980 rape conviction of Ms. D., count 12, as its base term in imposing sentence under section 1170.1.   The Attorney General argues consecutive prison terms imposed under section 667.6, subdivision (d) must be separate and distinct from the terms computed under sections 1170 and 1170.1.   In other words, the Attorney General claims the court here had no alternative but to compute Anders' prison term by using the so-called “box theory” discussed in People v. Ottombrino (1982) 127 Cal.App.3d 574, 588, fn. 4, 179 Cal.Rptr. 676.⁸

Ottombrino's precedential effect is limited to its holding that section 654 does not operate to stay a section 12022.3 enhancement where the court choses to sentence under section 667.6 and impose a full upper term for a violent sex crime.⁹  The narrow issue here is whether under the statutory scheme the trial court properly selected a violent sex crime as the principal term under section 1170.1, subdivision (a).

 To interpret sections 667.6, subdivision (d) and 1170.1, subdivision (a), we must first ascertain the intent of the Legislature so as to effectuate the purpose of the law.  (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.)   However, “ ‘when language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.  [¶] The defendant is entitled to the benefit of every reasonable doubt, whether it arise[s] out of a question of fact, or as to the true interpretation of words or the construction of language used in the statute.’ ”  (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186, quoting In re Tartar (1959) 52 Cal.2d 250, 256–257, 339 P.2d 553.)   To the extent allowed by statute, a court should have the power to impose a sentence to fit the crime and the perpetrator based on the particular facts and circumstances of the case.  (See People v. Williams (1981) 30 Cal.3d 470, 489, 179 Cal.Rptr. 443, 637 P.2d 1029.)

 The Legislature enacted section 667.6 so that greater punishment could be imposed upon persons committing forcible sex crimes.   Accordingly, any sentence imposed under that section must be a full force term unlike the subordinate term of section 1170.1, subdivision (a) which requires a two-thirds reduction of the middle term of imprisonment prescribed for any such felony conviction.   Although the Legislature may have clearly expressed itself by preventing a section 667.6, subdivision (d) offense from being categorized as a subordinate term, the interrelationship of the other aspects of section 1170.1, subdivision (a) and section 667.6, subdivision (d) is not crystal clear.   Ottombrino aptly describes the “apparent confusion” in section 1170.1, subdivision (a) because of the reference in that section to sections 12022.3 and 12022.8.  (127 Cal.App.3d at p. 587, 179 Cal.Rptr. 676.)   That confusion arises because those enhancements can be imposed only upon a conviction of a substantive offense within the meaning of section 667.6.   If truly separate and distinct, why should section 667.6 be included within section 1170.1, subdivision (a)?   The confusion is compounded by examination of the definitions in section 1170.1, subdivision (a).   Aggregate term is defined as “the sum of the principal term, the subordinate term and any additional term imposed pursuant to Section 667.5 [or] 667.6” and “principal term” as “the greatest term of imprisonment imposed by the court for any of the crimes.”  (Italics supplied.)   Interestingly, the Legislature did not qualify the phrase “for any of the crimes” by excluding crimes falling under section 667.6.   When we refer to section 667.6, however, we note the following:  “[s]uch term shall not be included in any determination pursuant to Section 1170.1.”   This provision appears to be in direct conflict with section 1170.1, subdivision (a)'s definition of aggregate term since the additional term which includes a section 667.6 offense must be used in determining the aggregate term.   In other words, section 1170.1 seems to say that section 667.6 offenses are included, while section 667.6, subdivision (d) seems to say the contrary.   In light of these ambiguities and in the absence of any clearer direction by the Legislature we cannot say the Legislature intended to foreclose a court from using a sex offense as the principal term under section 1170.1, subdivision (a).   This result is also consistent with the legislative mandate of punishing sex offenders more severly.

Here, the court followed section 667.6, subdivision (d) by imposing a full, separate and consecutive term for each of the violent sex crimes as well as imposing the additional eight years for the two enhancements under former section 1170.1, subdivision (h).   The court thus imposed a sentence authorized by law.

Disposition

Judgment affirmed.   The sentence is modified by staying the one-year term on count 23.

FOOTNOTES

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

2.   For purposes of the sufficiency argument Anders must concede the jury's verdict constitutes a rejection of his mistaken identity defense.

3.   Welfare and Institutions Code section 707.2 provides:“Prior to sentence, the court of criminal jurisdiction may remand the minor to the custody of the California Youth Authority for not to exceed 90 days for the purpose of evaluation and report concerning his amenability to training and treatment offered by the Youth Authority.   No minor who was under the age of 18 years when he committed any criminal offense and who has been found not a fit and proper subject to be dealt with under the juvenile court law shall be sentenced to the state prison unless he has first been remanded to the custody of the California Youth Authority for evaluation and report pursuant to this section and the court finds after having read and considered the report submitted by the Youth Authority that the minor is not a suitable subject for commitment to the Youth Authority.”

4.   Former Welfare and Institutions Code section 6302 (repealed, stats. 1981, ch. 928, § 2) provided in pertinent part:“When a person is convicted of any criminal offense, whether or not a sex offense, the trial judge, on his own motion, or on motion of the prosecuting attorney, or on application by affidavit by or on behalf of the defendant, if it appears to the satisfaction of the court that there is probable cause for believing such a person is a mentally disordered sex offender within the meaning of this chapter, may adjourn the proceeding or suspend the sentence, as the case may be, and may certify the person for hearing and examination by the superior court of the county to determine whether the person is a mentally disordered sex offender within the meaning of this article.”

5.   Although People v. Marling (1981) 116 Cal.App.3d 284, 287–288, 172 Cal.Rptr. 109 refers to the court's rejecting YA commitment as a sentence choice, the Marling court used the term in its generic sense.   The fact the trial court in Marling did state its reasons does not mean it was obligated to do so.

6.   Because the Legislature enacted section 667.6 in 1979 (stats. 1979, c. 944, § 10, effective January 1, 1980 (Cal.Const., art. IV, § 8, subd. (c)(1))), its provisions do not apply to the two 1979 rapes.

7.   Section 667.6 states:“(a) Any person who is found guilty of violating 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 threat of great bodily harm who has been convicted previously of any such offense shall receive a five-year enhancement for each such prior conviction provided that no enhancement shall be imposed under this subdivision for any conviction occurring prior to a period of 10 years in which the person remained free of both prison custody and the commission of an offense which results in a felony conviction.“(b) Any person convicted of an offense specified in subdivision (a) who has served two or more prior prison terms as defined in Section 667.5 for an offense specified in subdivision (a), shall receive a 10-year enhancement for each such prior term provided that no additional enhancement shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the person remained free of both prison custody and the commission of an offense which results in a felony conviction.“(c) In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed 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 threat of great bodily harm whether or not the crimes were committed during a single transaction.   If such term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment, and shall commence from the time such person would otherwise have been released from imprisonment.   Such term shall not be included in any determination pursuant to Section 1170.1.   Any other term imposed subsequent to such term shall not be merged therein but shall commence at the time such person would otherwise have been released from prison.“(d) 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 threat of great bodily harm if such crimes involve separate victims or involve the same victim on separate occasions.“Such term shall be served consecutively to any other term of imprisonment, and shall commence from the time such person would otherwise have been released from imprisonment.   Such term shall not be included in any determination pursuant to Section 1170.1.   Any other term imposed subsequent to such term shall not be merged therein but shall commence at the time such person would otherwise have been released from prison.”

8.   The Attorney General's calculation using the additional upper base term for one of the 1979 rapes is as follows:C1-3P.C. § 1170.1 SentenceC4-7P.C. § 667.6, subd. (d)C7BaseC7Term &CountCrimeC3SentenceCountCrimeSentenceC7Enhanc.21Rape8 yrs.12Rape13 yrs.8 + 5PC § 261PC § 26124Rape2 yrs. 6Rape11 yrs.8 + 3PC § 261PC § 26118Att.Rape1 yr. 1Rape8 yrs.8PC § 664PC § 261& § 26123Robbery1 yr.L4-7TOTAL SENTENCE 32 yrs. 24 + 8PC § 21120Robbery1 yr.L4-7    TOTAL UNSTAYED TERM - 47 YEARSPC § 21117Robbery1 yr.PC § 21114Robbery1 yr.PC § 211L1n *L1-4TOTAL SENTENCE 15 yrs. FN* n -The sentence for count 2, or one of the other robberies or the attempted rape, must be stayed in order to comply with Penal Code section 1170.1, subdivision (a).

9.   We have also noted the Supreme Court has granted hearing in People v. Belmontes (Crim. 22812, hg. granted Oct. 13, 1982) and People v. Reeder (Crim. 22973 hg. granted Feb. 10, 1983) and has asked counsel to discuss whether Ottombrino should be followed.  (Admin. Office of Courts, Release #S.C. 49/82 (Dec. 28, 1982.))

WIENER, Associate Justice.

COLOGNE, Acting P.J., and STANIFORTH, J., concur.