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Name: People v. McQueen
Case #: A114767
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 02/15/2008

Sentence imposed under habitual offender law was properly stayed instead of dismissed where appellant was also sentenced under One Strike law. Appellant was convicted of multiple sex offenses against two minors. On ten counts of conviction, the trial court sentenced him to consecutive sentences of 25 years to life, pursuant to section 667.61, subdivision (a)(One Strike law), tripled to 75 years to life pursuant to section 667, subdivision (e)(2)(i) (Three Strikes law). On the same counts, the court also sentenced appellant under the habitual sex offender law (sec. 667.71, subd. (b)) to 25 years to life, tripled under the Three Strikes law. However, pursuant to section 654, the trial court stayed the sentences imposed under the habitual sex offender law on those ten counts. On appeal, appellant contended that the trial court erred by staying the sentences under section 654 instead of striking or dismissing them. The appellate court acknowledging the split in authority, agreed with People v. Lopez (2004) 119 Cal.App.4th 355, which rejected the reasoning of People v. Snow (2003) 105 Cal.App.4th 271, and held that a defendant was not entitled to the striking of his sentence under the One Strike law where he had been sentenced to a higher sentence under the habitual sexual offender law. Although the court agreed with Snow that the One Strike law and the habitual sex offender act are alternate sentencing schemes, it disagreed with its conclusion that if a sentence is imposed under one, the true finding under the other must be stricken or dismissed. Rather, the correct procedure when the two alternate schemes are implicated is to impose a sentence under both, but stay one sentence. Therefore the trial court correctly stayed the sentence imposed under the habitual sex offender act.