Trial courts have discretion to impose concurrent sentences for multiple serious or violent felonies against a single victim if they were committed on the same occasion. In 2017, college student Jane Doe mistakenly got into defendant’s vehicle, believing he was her Uber driver. Defendant drove Doe to a wooded area and refused to let her out. Doe distracted defendant by agreeing to orally copulate him, then escaped through a window. A jury convicted defendant of kidnapping to commit a sex offense (count 1); assault with intent to commit a sex offense (count 2); and failure to register as a sex offender (count 3). The court found prior serious felony allegations attached to counts 1 and 2 true. Defendant was sentenced to 50 years to life on count 1 plus five years for the prior serious felony conviction. To this, the court added five years for the prior serious felony conviction on count 2, plus a concurrent term of 12 years on count 2, and a concurrent term of six years on count 3. On appeal, the People argued consecutive sentences on counts 2 and 3 were mandatory under the Three Strikes Reform Act of 2012 (Proposition 36). Held: Affirmed but remanded for resentencing. In People v. Torres (2018) 23 Cal.App.5th 185, the Court of Appeal held that Proposition 36 did not alter the rule that “trial courts have discretion to impose concurrent sentences for multiple serious or violent felonies against a single victim if they were committed on the ‘same occasion’ or arose from ‘the same set of operative facts.'” Thus, the trial court did not abuse its discretion in imposing a concurrent sentence on count 2 (assault with intent to commit a sex offense).
The trial court erred in imposing a concurrent term on count 3 (failure to register as a sex offender) because the offense is a nonviolent/nonserious felony. Where a defendant has “been convicted of a nonserious and/or violent felony, the term imposed for that crime [must be] consecutive to the terms of the serious or violent felonies . . . regardless of whether those serious and/or violent felonies were committed on ‘the same occasion’ or arose from ‘the same set of operative facts.'” (Torres, supra, 23 Cal.App.5th at p. 203, quoting Pen. Code, § 1170.12, subd. (a)(6).) Because failure to register as a sex offender is a nonserious/nonviolent felony, the trial court should have imposed a consecutive term on count 3. [Editor’s Note: Justice Needham filed a concurring and dissenting opinion, disagreeing with the majority’s conclusion that a concurrent sentence could be imposed on count two (assault with intent to commit a sexual offense), which is a serious and violent felony. In Justice Needham’s view, Proposition 36 made consecutive sentencing mandatory where, as here, a defendant is subject to sentencing under the Three Strikes law and is currently convicted of more than one serious or violent felonies.]
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A153155M.PDF