PEOPLE v. LONG (1985)

Charles Dwayne Long was charged with three forcible sex offenses committed against Kathleen K.:  sodomy (Pen.Code,1 § 286, subd. (c)), rape (§ 261, subds. (2), (3)), and lewd acts on a child under 14 (§ 288, subd. (b)).  Each of these counts alleged enhancements.   Long was also charged with three counts relating to Barbara G.:  committing lewd acts on a child under 14 (§ 288, subd. (b)), assault with intent to commit rape (§ 220) and burglary of her inhabited residence at nighttime (§ 459).   The forcible sex counts also alleged enhancements.

After unsuccessful section 995 and 1538.5 motions, defendant Long entered a plea bargain whereby he pleaded guilty to three counts in an amended information.   Count I involved burglary of Barbara G.'s inhabited residence in the nighttime;  count II charged Long with forcibly committing lewd acts upon Barbara G., a child under 14 (Pen.Code, § 288, subd. (b));  and count III charged Long with burglary of a realty office (Pen.Code, § 459).   Long was sentenced to prison for a total term of 13 years, 8 months;  6 years for the residential burglary, the upper term of 7 years for the sex offense, consecutive to the residential burglary, and 2 years for the commercial burglary, consecutive to the other counts;  all but one-third of the sentence on count III was stayed.   He appeals.

FACTS

We deduce the following facts from the preliminary examination transcript, the transcript of the section 1538.5 hearing and the probation officer's report.

On October 4, 1980, 12-year-old Barbara G. was eating ice cream, watching television at home alone.   About 9:45 p.m. she heard a noise and went to investigate.   Long reached out from a corner in the hallway, put his hand over her mouth and said “Shut up or I'll kill you.”   He took her to the master bedroom, took off her pants, touched her breasts and tried to insert his finger into her vagina.   When the 12-year-old victim told him to knock it off, he hit her in the left temple.   This caused Barbara to black out briefly.

When Barbara came to, she told Long there was money in the kitchen.   He told her she had three seconds to get it.   While she was getting the money, he ordered her to turn off the lights and the television.   She refused to turn off the lights but did turn off the television.   During this conversation she could see half of his head and most of his body as he was standing in the corner.   He was clean-shaven, wearing a Levi jacket, blue Levis and a blue shirt.   He was five feet, six inches tall.   She escaped through the back door and fled to her next door neighbor's home.

When the police arrived, Barbara showed them the bed in the master bedroom had been pushed away from the window.   The screen was off the window, the window was wide open and the light was off.   Before Long had entered the house, the bed was against the window at the wall and the window was only slightly opened.   A fingerprint lifted from the windows matched Long's left thumb.

On October 12, 1980, Long entered a realty office and took some canned food and a soft drink.

On the night of November 10, 1980, 9-year-old Kathleen K. walked to the neighborhood Jack-in-the-Box to get some food.   She saw Long preparing to cross the street.   No one else was around.   She walked ahead of Long.   He came up behind her, grabbed her, put his hand over her mouth and carried her to a nearby shed.   He told her he had a knife.   He made her lie down on the floor and sodomized her, causing her to bleed.   She ran home without any clothes.   She was taken to Children's Hospital for treatment.   She required a continuous locking suture about one inch across the perineum and one inch up the posterior wall of the vagina.   A thumbprint and palm print found in the shed matched Long's.

Five days later, November 15, 1980, San Diego Police Officer Hodges received a radio dispatch requesting him to investigate a reported indecent exposure.   Officer Hodges saw Long leaving the parking lot where the indecent exposure occurred.   Long matched the description of the suspect, so Hodges stopped him.   Long had no identification or ownership or registration papers on the motorcycle.   The officer detained Long to run a warrant check confirming his identification.   During the five- to ten-minute detention, the officer learned there was a possible arrest warrant for Long and the victim of the indecent exposure would not swear out a complaint against him.   The officer arrested Long on the outstanding warrant.   He took Long downtown to the police station for photographs and fingerprinting because the indecent exposure was a sex-related offense.   At the station while Long was being fingerprinted and photographed, an outstanding warrant was confirmed.   Long was then transported to the sheriff's department for booking on the warrant.

DISCUSSION

I

Long contends the trial court erroneously denied his section 1538.5 motion to suppress because the fingerprints and photographs taken from him at the police station were illegally obtained as a product of an unlawful detention.   He claims once the officer determined the victim of the indecent exposure would not file a complaint against him, the officer lacked cause to further detain him at the scene of the stop.   Thus, Long, relying on the Wong Sun “tainted fruit” doctrine (Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441) claims the fingerprints and photograph were “tainted fruit.”.)

 A temporary detention for questioning or investigation is justified when the circumstances known or apparent to an officer include specific and articulable facts which cause the officer to suspect (1) some activity relating to crime has taken place or is occurring or is about to occur, and (2) the person the officer intends to stop or detain is involved in that activity.   (In re Tony C., 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957;  see also People v. Aldridge, 35 Cal.3d 473, 478, 198 Cal.Rptr. 538, 674 P.2d 240.)

At a hearing on a motion to suppress evidence under section 1538.5, the trial court is vested with the power to determine credibility of witnesses, resolve conflicts in testimony, weigh the evidence and make factual findings.   On appeal to this court, all presumptions favor the proper exercise of that power and the trial court's factual findings whether express or implied must be upheld if supported by substantial evidence.  (People v. Superior Court (Keithley), 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.)   This court must view the entire record in a light most favorable to the prosecution.   (People v. Johnson, 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)

 Here it is clear the initial detention was proper.   Long matched the description of the suspect committing the act of indecent exposure.   Officer Hodges saw him near the scene of the reported indecent exposure.   Detaining Long for five to ten minutes to run a warrant check and to locate the victim of the indecent exposure was not unreasonable.

Without question the two-fold requirements of In re Tony C., supra, 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957, were met;  Officer Hodges knew an indecent exposure had just occurred and had a reasonable suspicion Long was involved in that offense.   The question remains whether the arrest made pursuant to the yet unconfirmed outstanding warrant was proper.

 An arrest must be based on probable cause and probable cause exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the individual is guilty of a crime.  (People v. Frierson, 25 Cal.3d 142, 169, 158 Cal.Rptr. 281, 599 P.2d 587.)   Here, Long was detained for a short period of time (five to ten minutes) to verify his identity and to determine whether a citizen's arrest was to occur.   He had no driver's license or other identification or registration papers for the motorcycle he was driving.   It was during this short period of detention the officer learned there was an unconfirmed warrant somewhere in the law enforcement system for Long's arrest.   Relying upon this information, the officer had reasonable cause to arrest Long.

 In addition, the officer knew other objective facts which provided another basis for probable cause to arrest.   Long did not possess identification, driver's license or vehicle registration.   Driving without these documents constituted at least two Vehicle Code offenses—sections 12951, subdivision (a) (driving without a license) and 4454, subdivision (a) (failure to keep a registration).   While these offenses are infractions under 40000.1, an individual can be arrested and can be taken into custody pursuant to Vehicle Code section 40302, subdivision (a).  (People v. James, 1 Cal.App.3d 645, 648, 81 Cal.Rptr. 845;  People v. Valdez, 239 Cal.App.2d 459, 462, 48 Cal.Rptr. 840, overturned on other grounds in People v. Doherty, 67 Cal.2d 9, 15, 59 Cal.Rptr. 857, 429 P.2d 177.)   Thus, even if Officer Hodges did not have probable cause to arrest Long on the outstanding warrant, he did have probable cause to arrest him for the Vehicle Code infractions.  “ ‘The fact an officer may place a person under arrest for the wrong offense does not invalidate the arrest and require exclusion of evidence seized incident to the arrest, if the officer nevertheless had probable cause to arrest the person for another offense.  [Citations.]’ ”  (People v. Lewis, 109 Cal.App.3d 599, 609, 167 Cal.Rptr. 326.)

 If it be assumed there was a de facto arrest during the five- to ten-minute detention and the arrest itself was unlawful, the fingerprints still were not obtained as a result of exploitation of any illegality.   They would have been inevitably discovered.  (People v. Superior Court (Tunch), 80 Cal.App.3d 665, 673–683, 145 Cal.Rptr. 795.)   Officer Hodges received radioed information there was warrant for Long's arrest in the system.   This information was a sufficient basis to continue Long's detention in the field for such period of time as was necessary to confirm the report of an outstanding warrant.  (See United States v. Sharpe, 470 U.S. ––––, ––––, 105 S.Ct. 1568, –––, 84 L.Ed. 605, 616;  3 La Fave, Search & Seizure, § 9.2, p. 40;  People v. McGaughran, 25 Cal.3d 577, 582–583, 159 Cal.Rptr. 191, 601 P.2d 207.²  )  Had they remained in the field and waited for the dispatcher to confirm the fact of the outstanding warrant (which would have inevitably happened in this case) Officer Hodges would have arrested Long and taken him to the sheriff's department where he would have been booked and fingerprinted.  (See People v. Webb, 66 Cal.2d 107, 112, 56 Cal.Rptr. 902, 424 P.2d 342.)   Since the fingerprints would have been inevitably obtained from the sheriff's department, there was no exploitation of any illegality in procuring Long's fingerprints at the police station instead.

Thus, viewing the facts before the trial court on the section 1538.5 motion in a light most favorable to the ruling, we conclude the court properly denied the motion to suppress.   We find no error.

II

 Long next contends the sentencing court failed to consider facts in mitigation and relied upon improper factors in aggravation.   First, concerning factors in mitigation:  The sentencing court specifically stated that the statements in mitigation had been read and considered.   There is no requirement the court indicate its reasons for rejecting a mitigating factor.   (People v. Simon, 144 Cal.App.3d 761, 766–767, 193 Cal.Rptr. 28.)   Where the court states it has read and considered the probation report which enumerates mitigating factors, the mitigating factors are presumed rejected if an upper term is imposed.  (See People v. Jackson, 103 Cal.App.3d 635, 639, 163 Cal.Rptr. 115.)

 As to the factors in aggravation the court stated it was imposing the upper term in the Barbara G. burglary because “The crime involved great violence and the threat of great bodily harm.   The victim was told that Mr. Long had a knife and that he would kill her when he had requested the money,” the crime demonstrated planning, sophistication and professionalism indicating premeditation and Long had a pattern of violent conduct, indicating he was a serious danger to society.

As to the sex offense of count II, the sentencing judge stated the following facts were in aggravation:  (1) great violence and threats of great bodily harm and (2) other acts disclosing a high degree of cruelty, viciousness and callousness, over and above the acts involved in the 288, subdivision (b).

Long concedes the court properly considered great violence and threat of great bodily harm as an aggravating factor in both offenses.   Here the evidence shows when Long first grabbed Barbara G., he told her “Shut up or I'll kill you.”   He also told her he had a knife and a gun.³  This threat was certainly sufficient to justify the court's use of the factor as to the burglary.   Later, as Long was molesting Barbara G., he slapped her twice on the head so hard she momentarily blacked out.   These facts support the use of the factor as to that count.

Since a single factor in aggravation is sufficient to support an aggravated term (People v. Burney, 115 Cal.App.3d 497, 505, 171 Cal.Rptr. 329) and the court here stated it believed any single one of the aggravated factors was sufficient to support the upper term, we need not remand on this issue nor address Long's arguments as to the validity of the remaining aggravating factors cited by the court.

III

Long also raises the issue of whether a court can use section 667.6, subdivision (c),⁴ rather than section 1170.1 ⁵ to impose a consecutive sentence when only one of multiple offenses is a forcible sex offense.

This matter has not yet been resolved by the Supreme Court.   We have issued conflicting opinions on this matter in People v. Waite, 146 Cal.App.3d 585, 194 Cal.Rptr. 245, stating a court could not use section 667, subdivision (c), if only one of multiple offenses was a forcible sex offense and in People v. Jamison, 150 Cal.App.3d 1167, 198 Cal.Rptr. 407, by a divided court, holding a court could use section 667.6, subdivision (c).   Following Jamison, the Fifth District in People v. Howell, 151 Cal.App.3d 824, 199 Cal.Rptr. 110, also in a divided opinion, held section 667.6, subdivision (c), could be used in such circumstances.   The Howell majority reasoning was adopted by the Third District, without discussion, in People v. Foley, 170 Cal.App.3d 1039, 1057–1058, 216 Cal.Rptr. 865.   We now conclude the rules of statutory construction compell a conclusion section 667.6, subdivision (c), concerns sentencing for multiple forcible sex offenses not multiple offenses generally one of which happens to be a forcible sex offense.

 The fundamental rule of statutory construction is ascertaining the Legislature's intent so as to effectuate the purpose of the law.   (Select Base Materials v. Board of Equal., 51 Cal.2d 640, 645, 335 P.2d 672.)   A court first turns to the words of the statute itself, giving significance to every word, phrase, sentence and part of an act in furtherance of the legislative purpose, if possible.  (People v. Black, 32 Cal.3d 1, 5, 184 Cal.Rptr. 454, 648 P.2d 104.)   A construction which renders any part of a statute surplusage should be avoided.  (People v. Gilbert, 1 Cal.3d 475, 480, 82 Cal.Rptr. 724, 462 P.2d 580.)   The statutory language must be construed in context and the various parts of a statute “must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.”  (People v. Black, supra, 32 Cal.3d 1, 5, 184 Cal.Rptr. 454, 648 P.2d 104.)   The legislative history as well as the historical circumstances of a statute's enactment may be considered in ascertaining the Legislature's intent.  (Ibid.)

First, we observe the other subdivisions of section 667.6 all concern multiple forcible sex offenses.   Subdivision (a) provides for a five-year enhancement when the defendant is convicted of a forcible sex offense and has been convicted of a forcible sex offense in the past.   Subdivision (b) provides for a 10-year enhancement when the defendant is convicted of a forcible sex offense and has served two or more prison terms for forcible sex offenses in the past.   In other words, both subdivisions (a) and (b) address multiple forcible sex offenses;  a current offense and a past offense or prison terms for past offenses.

Subdivision (d) mandates full, separate and consecutive terms “if such crimes involve separate victims or involve the same victim on separate occasions.”   Clearly, multiple forcible sex offenses are involved, either against different victims or on different occasions.

The fact all the other subdivisions of section 667.6 address multiple sex offenses leads to the conclusion subdivision (c) also concerns multiple sex offenses.   The express language of subdivision (c) itself states “a full, separate and consecutive term may be imposed for each violation [of the enumerated forcible sex offenses] whether or not the crimes were committed during a single transaction.”  (Emphasis added.)   The word “crimes” relates back to the enumerated forcible sex offenses;  it does not relate to crimes generally.

In People v. Jamison, supra, 150 Cal.App.3d 1167, 1175, 198 Cal.Rptr. 407, the majority concluded the fact the Legislature chose to use the plural, “crimes,” was of no significance since section 7 of the Penal Code declares “the singular number indicates the plural and the plural the singular. ”   However, it is also axiomatic that all provisions of the Penal Code “are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”  (§ 4).   Underlying all statutory construction is ascertainment of the Legislature's intent.  (Select Base Materials v. Board of Equal., supra, 51 Cal.2d 640, 645, 335 P.2d 672.)   When read in the context of the rest of section 667.6, it appears the Legislature intended “crimes” in the plural, i.e., multiple forcible sex crimes, and not the singular, i.e., one forcible sex crime.⁶

As noted by Justice Butler in his dissent in People v. Jamison, supra, 150 Cal.App.3d 1167, 1182, 198 Cal.Rptr. 407:

“The majority's focus on the plural ‘crimes' in subdivision (c) incorrectly isolates that word and construes it separately and apart from the use of that word throughout the section.   Subdivision (d) mandates full, separate and consecutive terms for violent sex offenses ‘․ if such crimes involve separate victims or involve the same victim on separate occasions.’   Here, the phrase ‘crimes' necessarily refers to more than one of the enumerated violent sex offenses listed in that section.   It is a general rule of statutory construction when an identical term is used in part of a statute, it is presumed the Legislature intended its meaning to be the same throughout the entire section, absent an express exception.  (People v. Black (1982) 32 Cal.3d 1, 5 [184 Cal.Rptr. 454, 648 P.2d 104]․)  It follows then the word ‘crimes' appearing in subdivision (c) is to be given the same meaning as its usage in subdivision (d) and refers to multiple violent sex offenses, not to a single one.

In contrast to the Jamison majority's minimization of a plural use, the majority in People v. Howell, supra, 151 Cal.App.3d 824, 829, 199 Cal.Rptr. 110, stressed the Legislature's choice of the singular.   The majority noted the use of the singular “term” in the sentence after the one examined in Jamison.

“The legislative intent [to permit use of § 667.6, subd. (c) for a single forcible sex offense] is exemplified in the next sentence of the statute which reads, ‘If such term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment․’  (Italics added.)   We note that the word ‘term’ is in the singular.   Likewise, the language ‘any other term of imprisonment’ is a clear indication that the sex offense may be ordered to be served after a nonsex offense.”  (Ibid.)

Justice Hanson, dissenting in Howell, criticized the majority's analysis:

“When read independently from the rest of subdivision (c) and the rest of section 667.6, this sentence seems to indicate the Legislature spoke in the singular and allowed the imposition of a full term for a single sex offense consecutive to a nonsex crime.

“On the contrary, subdivision (d) uses almost that same language:  ‘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.’  (Italics added.)   While subdivision (d) speaks only to multiple sex crimes, again the language is singular.   It therefore seems that the sentence in subdivision (c) is merely clarifying the nature of the term's length.”  (Id., at pp. 832–833, 199 Cal.Rptr. 110.)

Moreover, we note that throughout subdivision (c) the singular of the word “term” is used although it is clear the word also encompasses the plural.   For example, the subdivision starts by stating “a full, separate, and consecutive term may be imposed for each violation.”   Clearly, the singular is implied, i.e., one term per each offense sentenced consecutively.   Later, subdivision (c) states:  “If such term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment.”   Clearly, here the word “term” implies the plural, i.e., the aggregate of the terms imposed for each section 667.6, subdivision (c), offense as well as the aggregate of other terms imposed for other offenses.

The majority in People v. Howell, supra, 151 Cal.App.3d 824, 828–829, 199 Cal.Rptr. 110, also focused on the subdivision's language permitting a full, separate and consecutive sentence for “each violation” of the enumerated offenses.   The majority concluded “each violation” included “one violation thereof” and went on to state “ ‘[F]or each violation’ should not be understood to read ‘[F]or each violation [of multiple violations ].’  Had the Legislature intended that result, it could have said so in a direct manner.”  (Id., at pp. 828–829, 199 Cal.Rptr. 110.)   Of course, the converse is also true;  had the Legislature intended the Howell and Jamison result, it could have easily said so in a direct manner by including language stating section 667.6, subdivision (c) was applied when there was one enumerated offense and other nonenumerated offenses.

In Howell, the majority concluded:

“The evident purpose of the legislation which enacted section 667.6 was to increase the criminal penalties for commission of the specified violent sex offenses.   It is neither logical nor reasonable to infer, especially given the wording of the statute, that the Legislature intended only that multiple violent sex offenses be subject to the increased punishment.   In the same legislation, the penalties for using a weapon in violent sex crimes were increased (§ 12022.3) and the enhancements for violent sex crimes were made unlimited (former § 1170.1, subd. (h), now subd. (i)), neither being applicable only to multiple violent sex offenses.  (Stats.1979, ch. 944, §§ 12, 17, pp. 3259–3261, 3263.)”  (People v. Howell, supra, 151 Cal.App.3d 824, 829, 199 Cal.Rptr. 110.)

First, we note the Legislative intent to impose harsh penalties for violent sex crimes is reflected in the punishment of the individual offenses themselves.   Section 667.6's enumerated crimes of rape (§ 261, subds. (2), (3)), oral copulation (§ 288a), sodomy (§ 286) and lewd acts on a child under 14 years (§ 288, subd. (b)), penetration by a foreign object (§ 289) are each punishable by 3, 6 or 8 years.   Aiding or abetting these crimes (§§ 264.1, 286, 288a) are punishable by 5, 7 or 9 years.   Few crimes carry heavier penalties and those that do for the most part involve death or great bodily injury.⁷

Likewise, the Legislature has enacted more severe enhancements if a weapon or great bodily injury are involved in a forcible sex offense.⁸

If section 667.6, subdivision (c), is used when only one of the multiple offenses is a forcible sex offense only rarely will it result in increased punishment for the commission of the forcible sex offense as compared to using section 1170.1.   As indicated above, forcible sex offenses carry heavy penalties and will generally be selected as the principal term under section 1170.1, that is, the term for the forcible sex offense will be fully imposed.   When section 667.6, subdivision (c), is used as in the instant case, the result is not an increased punishment for the commission of the forcible sex offense, but rather an increased punishment for the nonforcible sex offense since if section 1170.1 was used, the nonforcible sex offense would be a subordinate term (to the forcible sex offense) imposed at one-third of the midterm, while if section 667.6, subdivision (c) was used, it would be a principal term imposed at the full term to which the forcible sex offense would run consecutively as another full term.   Thus, allowing a single forcible sex offense to be sentenced under section 667.6, subdivision (c), does not fulfill a legislative purpose of “increas[ing] the criminal penalties for commission of the specified violent sex offenses” as argued by the Howell majority.  (151 Cal.App.3d at p. 829, 199 Cal.Rptr. 110.   See People v. Jamison, supra, 150 Cal.App.3d 1167, 1182, 198 Cal.Rptr. 407, Butler, J., dissenting.)

Section 667.6 is not intended to generally increase the penalties for individual forcible offenses (a matter dealt with in the penalties and enhancements for the individual offenses), but to increase the penalties for repeat multiple forcible sex offenders, that is, recividists (subds. (a), (b)), those who commit multiple offenses against a single victim during a single transaction (subd. (c)), and those who commit multiple offenses against a single victim on different occasions or against multiple victims (subd. (d)).  (See People v. Reynolds, 154 Cal.App.3d 796, 815, 201 Cal.Rptr. 826;  People v. Karsai, 131 Cal.App.3d 224, 244, 182 Cal.Rptr. 406.)

Further, as noted by Justice Hanson in her Howell dissent, a construction permitting section 667.6, subdivision (c), to be used for a single forcible sex offense would result in surplusage:

“When subdivision (c) is read in combination with subdivision (d), the phrase in subdivision (c) ‘whether or not the crimes were committed during a single transaction’ takes on a special meaning.   Subdivision (d) requires a harsher sentencing if there were separate victims or the same victim on separate occasions.   Subdivision (c) seems to contemplate the situation where one person has been victimized by several sex crimes during one transaction or occasion.   If this is not what the Legislature intended, then subdivisions (c) and (d) overlap, and the language in subdivision (c) becomes surplusage.   When interpreting a statute, the court should avoid a construction which renders any part of the statute ‘surplusage.’  (People v. Gilbert (1969) 1 Cal.3d 475, 480 [82 Cal.Rptr. 724, 462 P.2d 580]․)

“Since subdivision (c) is discretionary, it seems that the Legislature must have viewed multiple violations of one victim at one time to be not as serious as violations upon more than one victim or multiple violations on the same victim on separate occasions.”  (People v. Howell, supra, 151 Cal.App.3d 824, 832, 199 Cal.Rptr. 110 (J. Hanson, dissenting).)

 The foregoing discussion of the analysis by the Jamison and Howell majorities and dissents as well as this court's issuance of conflicting opinions (Jamison and Waite ), highlights the fact the language of section 667.6, subdivision (c), is ambiguous;  it is subject to conflicting interpretations.   The rules governing interpretation of ambiguous penal statutes requires a court to adopt the interpretation most favorable to the defendant.  (People v. Belmontes, 34 Cal.3d 335, 345, 193 Cal.Rptr. 882, 667 P.2d 686.)   Accordingly, section 667.6, subdivision (c), should be construed to permit its use only when multiple forcible sex offenses are involved, not when only one of multiple offenses is a forcible sex offense.⁹

 In sum, we hold the trial court had no jurisdiction to sentence Long under section 667.6, subdivision (c).¹⁰  (See People v. Superior Court (Duran), 84 Cal.App.3d 480, 490, 148 Cal.Rptr. 698.)

IV

Since we remand for resentencing on the ground the court could not sentence Long under section 667.6, subdivision (c), we need not address Long's remaining contentions as to the sufficiency of the court's reasons in choosing to sentence under section 667.6, subdivision (c).

The judgment of conviction is affirmed.   The cause is remanded for resentencing in accordance with this decision.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   Long relies heavily upon People v. McGaughran, 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207, for the proposition he could not be detained while a warrant check was being run after the officer learned of the victim's refusal to press charges.   The facts of McGaughran are distinguishable from those of the present case.   In McGaughran, the defendant and his companion were stopped by police for driving their car the wrong way on a one-way street.   Defendant and his companion both presented driver's licenses upon request.   The officer detained them for 10 minutes while he conducted a warrant check on each.   The Supreme Court held inter alia the detention was illegal because the “traffic violation justifying the stop herein was not of the limited class of offenses for which the officer is either required or authorized to take the defendant into custody and transport him before a magistrate for the filing of a complaint.  [Citations.]”  (People v. McGaughran, 25 Cal.3d at p. 583, 159 Cal.Rptr. 191, 601 P.2d 207.)  McGaughran continued:  “In such instances, provided the offender satisfactorily identifies himself ․ the officer must simply prepare a written notice to appear ․ reciting the particulars of the violation ․, and must release the offender when he signs a written promise to appear.”  (Ibid., fn. omitted.)McGaughran also recognizes a detention extended beyond the time necessary for the citing officer to perform his duties arising from the traffic stop, may be justified if based upon “specific and articulable facts” that would support a rational suspicion the offender was involved in some activity relating to crime.  (Id., at p. 591, 159 Cal.Rptr. 191, 601 P.2d 207.)   Here, in contrast to McGaughran, Long was not stopped because of a traffic infraction and “additional facts” pointing to an outstanding warrant were present.

3.   Long points out Barbara G. at the preliminary hearing denied seeing a gun or knife or Long telling her he had such weapons.   Officer Knight, however, testified he interviewed Barbara G. within an hour of the offenses and at that time she relayed Long had said he was armed with a gun and knife.   The court below was entitled to believe Barbara G.'s statement within one hour of the offense more accurately described the events than her statements over three years later at the preliminary hearing.

4.   Section 667.6, subdivision (c), provides:  “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.

5.   Section 1170.1, in pertinent part, provides:  “(a) Except as provided in subdivision (c) and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all such convictions shall be the sum of the principal term, the subordinate term and any additional term imposed pursuant to Section 667.5, 667.6, or 12022.1.   The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancements imposed pursuant to Section 12022, 12022.3, 12022.5, 12022.6, 12022.7 or 12022.8.   The subordinate term for each consecutive offense which is not a ‘violent felony’ as defined in subdivision (c) of Section 667.5 shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements.   In no case shall the total of subordinate terms for such consecutive offenses which are not ‘violent felonies' as defined in subdivision (c) of Section 667.5 exceed five years.   The subordinate term for each consecutive offense which is a ‘violent felony’ as defined in subdivision (c) of Section 667.5, including those offenses described in paragraph (8) of subdivision (c) of Section 667.5, shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of any enhancements imposed pursuant to Section 12022, 12022.5 or 12022.7.“(i) For any violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or sodomy or oral copulation by force, violence, duress, menace or threat of great bodily harm as provided in Section 286 or 288a, the number of enhancements which may be imposed shall not be limited, regardless of whether such enhancements are pursuant to this or some other section of law.   Each of such enhancements shall be a full and separately served enhancement and shall not be merged with any term or with any other enhancement.”

6.   Compare People v. Howell, supra, 151 Cal.App.3d 824, 829, 199 Cal.Rptr. 110, where the majority also found little significance to the use of the plural “crimes”:  “The language ‘whether or not the crimes were committed during a single transaction’ (italics added) was selected because section 667.6 has no application unless there are at least two crimes :  a consecutive sentence may not be imposed unless there is first an initial sentence to be consecutive to.”   This finding ignores the fact that section 667.6 generally applies when there is at least two forcible sex crimes not just consecutive sentencing generally.

7.   Our survey of the Penal Code found the following crimes (exclusive of enhancements) were given as severe or more severe punishment by the Legislature than the forcible sex offenses specified in section 667.6, subdivision (c):  treason (§ 37, death or life without possibility of parole), procuring execution of an innocent person through perjury or subordination of perjury (§ 128, death or life without possibility of parole), first degree murder (§ 190, death, life without possibility of parole or 25 years imprisonment), voluntary manslaughter (§ 193, 3, 6 or 11 years), kidnapping under certain circumstances (§ 209, life without possibility of parole), attempted murder of a public official to prevent the official from performing his duties or in retaliation (§ 217.1, 15 years to life), train wrecking (§ 218, life without possibility of parole), assault with a deadly weapon on a police officer (§ 245, 4, 6 or 8 years), and arson causing great bodily injury (§ 451, subd. (a), 5, 7 or 9 years).   There are also a number of sexual offenses which are as severely punished when they involve children.  (See §§ 266h, 266i, 266j.)

8.   Section 12022 provides for a one-year enhancement for being armed with a deadly weapon or firearm during an offense and two years for deadly weapon or firearm use.   Section 12022.3 provides for a two-year enhancement for being armed and three years for use if the offense is a forcible sex offense.Section 12022.7 provides for a three-year enhancement for an offense where great bodily injury occurs.   Section 12022.8 provides for a five-year enhancement for a forcible sex offense where great bodily injury occurs.

9.   We note Justice Butler in his dissent in Jamison found a construction of section 667.6, subdivision (c), which permits its use when only a single forcible sex crime is involved “invites equal protection attacks.”  (People v. Jamison, supra, 150 Cal.App.3d 1167, 1183, 198 Cal.Rptr. 407, J. Butler, dissenting.)   The majority in People v. Howell, supra, 151 Cal.App.3d 831, 199 Cal.Rptr. 110, in contrast, found no denial of equal protection in such a construction of section 667.6, subdivision (c).   Since we have held section 667, subdivision (c), applies only to multiple forcible sex offenses, we need not resolve this equal protection issue.

10.   Long's plea bargain, in pertinent part, states:  “The court is not bound to any sentence in this case, however should an appellate court determine that the sentence in this case exceeded the court's jurisdiction, either party may set aside the plea and reinstate the original charges.”   (Emphasis added.)Long contends his attack on the court's use of section 667.6, subdivision (c), is not an attack on the court's jurisdiction.   He argues the term jurisdiction applies only to the court's authority to sentence him under the Determinate Sentencing Act, a matter not at issue here because his offenses were committed after the effective date of the act.  (See People v. Martinez, 88 Cal.App.3d 890, 152 Cal.Rptr. 204.)   He, instead, characterizes the court's use of section 667.6, subdivision (c), as an abuse of discretion.We disagree.   Under our analysis of section 667.6, subdivision (c), the court had no discretion to sentence Long under section 667.6, subdivision (c).   The court did not merely abuse its discretion, it acted beyond the scope of its authority, that is, it exceeded its jurisdiction.  (See People v. Serrato, 9 Cal.3d 753, 764–765, 109 Cal.Rptr. 65, 512 P.2d 289, overturned on other grounds in People v. Fosselman, 33 Cal.3d 572, 585, 189 Cal.Rptr. 855, 659 P.2d 1144.)

STANIFORTH, Acting Presiding Justice.

WORK and BUTLER, JJ., concur.