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Name: People v. Huynh
Case #: G048804
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 06/18/2014

Trial court properly dismissed one strike allegation (Pen. Code, § 667.61, subd. (d)(1)) where prior conviction did not precede the currently charged offense. Huynh was charged with committing a forcible lewd act on a child under 14 years old (Pen. Code, § 288, subd. (b)(1)) based on evidence that he molested a young relative sometime between 2002 and 2005. The information also alleged that, prior to the commission of the charged offense, Huynh suffered a conviction for violating section 288, subdivision (b). (Pen. Code, § 667.61, subds. (a), (d)(1).) The prior conviction occurred in 2008. The trial court granted Huynh’s motion to dismiss the section 667.61, subdivision (d)(1) allegation because the prior conviction did not precede the charged offense. The People appealed. Held: Affirmed. Under section 667.61, subdivisions (a) and (c), a person who is convicted of violating section 288, subdivision (b) under one or more of the circumstances specified in subdivision (d) is subject to an enhanced sentence under the One Strike law. One of the circumstances listed in subdivision (d)(1) is that “[t]he defendant has been previously convicted of an offense specified in subdivision (c) . . . .” Based on the plain language of the statute, the court concluded that “previously convicted” means that a defendant’s conviction for a qualifying offense must chronologically precede the currently charged offense. There is nothing in 667.61’s legislative history that undermines this conclusion. While section 667.61 is not wholly an anti-recidivism statute, subdivision (d)(1) is an alternative sentencing scheme that punishes recidivism. As such, the “previous conviction” must precede the currently charged offense. (See People v. Flood (2003) 108 Cal.App.4th 504.)