Error and/or relief
We agree with the defendant that the trial court erred in calculating his sentence, and we therefore remand for a full resentencing. At that resentencing, the trial court may revisit the aggravating factors, so we decline to decide today the defendant’s challenge to one aggravating factor. We likewise decline to decide whether the victim’s mother and sister were properly named as protected persons on the criminal protective order, as the trial court must also determine the scope of the protective order in fully resentencing the defendant.
There were also errors in the minute order and the abstract of judgment because they reflected imposition of multiple fines that were not imposed in the court’s oral pronouncement.
First Holding:
It was error for the court to sentence the defendant under section 667.71 and also sentence him to a determine term. Section 667.71, also known as the “Two Strikes” law, provides that a habitual sexual offender shall be punished by imprisonment in the state prison for 25 years to life. A habitual sexual offender is defined as a person who has been previously convicted of one or more of certain specified offenses and who is convicted in the present proceeding of one of those offenses. Among the specified offenses is lewd or lascivious act in violation of section 288(a).
The Two Strikes law is an alternative sentencing scheme for specified sexual offenses. Unlike a sentence enhancement, which imposes an additional term of imprisonment added to the base term, the Two Strikes law sets forth an alternate penalty for the underlying felony itself when the defendant has satisfied specified conditions. In other words, the trial court may either sentence the defendant under the penalty specified in the underlying statute or based on the Two Strikes law, but not both.
Authority:
People v. Lopez (2004) 119 Cal.App.4th 355, 360
People v. Murphy (2001) 25 Cal.4th 136, 155
People v. Acosta (2002) 29 Cal.4th 105, 118 [discussing One Strike law]
Second Holding:
Because we find the trial court’s sentence as to count 2 is unauthorized, we remand for a full resentencing as to all counts to allow the trial court to exercise its sentencing discretion in light of the changed circumstances.
Authority:
People v. Buycks (2018) 5 Cal.5th 857, 893
Third Holding:
As there were errors in the minute order and abstract of judgment listing multiple fines that were not imposed in the oral pronouncement of judgment, we trust the court’s minutes and abstract of judgment will track the court’s oral pronouncement on remand.
Authority:
People v. Zackery (2007) 147 Cal.App.4th 380, 389 [Rendition of the judgment is normally an oral pronouncement, and the abstract of judgment cannot add to, or modify, the judgment, but only purports to digest and summarize it]